2009 Annual Survey of violations of trade union rights - Ecuador
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Ecuador, 11 June 2009, available at: http://www.refworld.org/docid/4c52caf132.html [accessed 3 August 2015]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Trade union rights violations in both the public and private sectors remain widespread. Subcontracting persists, despite being prohibited by the new Constitution. The government backed a parallel national union centre and employers promote "solidarismo" associations to prevent the exercise of trade union rights.
Trade union rights in law
Freedom of association: The new Constitution, approved by referendum in 2008, guarantees workers' right to organise without prior authorisation and fully exercise their trade union rights in accordance with the law. The same Constitution, however, limits this right in the public sector by establishing that only one organisation can represent State employees in all aspects of labour relations.
The Labour Code establishes that a minimum of 30 workers is required to form a union or a works council. The ILO considers this number to be excessive. In addition, to form a works council, the approval of 50 per cent plus one of the workforce is required. If the works council has more members than the union, the latter has no power in the workplace.
Depending on their grade, public sector workers are either subject to the Civil Service and Administrative Careers Act (which is the case for white-collar employees or executive staff) or the Labour Code (which is the case for blue-collar workers). The latter can organise in the professional associations, trade unions or works councils corresponding to their occupation. However, only one organisation, the one with the most members, is allowed to fully represent workers in discussions with employers. In the case of the former, the ban on joining unions was lifted in 2005 with the adoption of the Codification of the Civil Service and Administrative Careers Act and the Unification and Standardisation of Public Sector Wages.
The law establishes that trade union office can only be held by Ecuadorian nationals and persons employed in the company concerned, which contradicts the principles of the ILO.
Collective bargaining: Only workers covered by the Labour Code have the right to take part in collective bargaining. In the private sector, collective bargaining is held with the works council or, in its absence, with the association that has the largest number of members, insofar as the latter represents over 50% of the employees. In State institutions and public sector companies, collective bargaining is undertaken with a single central committee made up of over 50% of the workers. The ILO has underlined the need to amend this legislation so that minority trade unions that do not represent over 50% of the workers are able to negotiate on behalf of their members, be it alone or in conjunction with other unions.
Some of the "Constitutional Mandates" arising from the National Constituent Assembly in 2008 have been used to impose limitations and modifications on collective agreements signed in public institutions, public sector enterprises and companies in which the State has a majority share.
Pursuant to Ministerial Agreement no. 80, which develops Constitutional Mandate no. 8, review commissions (composed of officials from the Ministry of Labour and Employment) are being set up to deal with the "automatic adjustment" of the collective bargaining agreements. These commissions have the power to determine the clauses that establish "excesses and privileges" for workers, which will be considered automatically void. The commissions' review instruments will automatically form part of the collective agreement. In addition, pursuant to Ministerial Agreement 155A establishing the rules of procedure for the "review", the commissions have the power to partially or totally amend the collective agreement. This procedure – although it provides for the presence of workers' representative – by no means constitutes a renegotiation of the collective agreements but, rather, an administrative review with unlimited discretional jurisdictional power, given that it also establishes that compliance is compulsory and that there will be no recourse to administrative or judicial remedy. In 2008, a complaint about this procedure was lodged with the Committee on Freedom of Association.
In the case of workers covered by the Civil Service and Administrative Careers Act, working conditions are not negotiated but imposed. Teachers, for their part, cannot negotiate at local or workplace level, only at national level.
Right to strike: The new Constitution recognises the right of workers and their organisations to take strike action. However, it categorically prohibits any paralysis of the public services related to health, environmental sanitation, education, justice, the fire brigade, social security, electrical energy, drinking water and sewerage, hydrocarbon production, the processing, transport and distribution of fuel, public transport, post and telecommunications. The list far exceeds the ILO definition of essential services.
In addition, the Civil Service and Administrative Careers Act provides for the dismissal of public servants involved in paralysing public services, without affecting the right to take any other legal action that may apply. Decree no. 105, passed on 7 June 1967, provides for between two and five years in prison for such offences.
In the private sector, strikes can only be called at company or factory level. The law further restricts this right for most sectors by requiring a 10-day cooling off period and, for some, such as agricultural workers, a 20-day period before strike action can be taken. The law also establishes that the Minister of Labour will be responsible for determining the minimum services in the case of certain services, in the event that the parties fail to agree.
The law prohibits federations and confederations from calling strikes. Solidarity strikes and boycotts are restricted to a maximum of three days.
Trade union rights in practice and violations in 2008
Background: The new Constitution approved on 28 September 2008 was aimed at producing a strong State that protects workers' rights and the environment. Unfortunately, in practice the Constitution provides the possibility of suppressing unions and the collective bargaining rights of public sector workers, and contravenes the core conventions of the ILO.
Leadership dispute in the CEOSL: The leadership dispute remains unresolved in the Ecuadorian confederation of free trade unions, Confederación Ecuatoriana de Organizaciones Sindicales Libres (CEOSL), with two members of the executive claiming the leadership of the organisation. The recent ruling of a judge has fuelled the dispute, which arose at the end of June, by repealing a previous ruling, withdrawing the CEOSL executive's registration and handing it to another parallel trade union centre.
Restrictions on public sector collective agreements: The leave granted to trade union members and leaders to be able to take part in trade union activities has been removed from collective contracts and agreements, the compensation for early termination of employment has been reduced, as have medical and dental care benefits, the subsidies for the education of workers' children, family subsidies, holiday vouchers, Christmas vouchers, overtime and extra pay for the calculation of wages. There have also been reductions in the extra pay established by law for employees in various public enterprises and institutions, such as public health, the oil and cement industries (Cemento Chimborazo and Cementos Guapán), telephone, electricity and water supply companies (in Quito), and social security institutions. These new restrictions have led to instability.
In addition, the national government has embarked on reclassifying health, banking, public enterprise and administration workers and drivers, which are to be covered by the Civil Service and Administrative Careers Act. With this move, the government will all but rid the public sector of trade unions.
Subcontracting persists: Despite being prohibited by the new Constitution, subcontracting continues to exist, the only real change being the term used for it. Reference is now made to "complementary services", which are contracted through the companies providing them, such as surveillance, security, catering, cleaning and courier services. Hourly contracts, which are now prohibited, have been replaced with permanent part-time contracts.
Anti-union tactics in private companies: The private sector promotes "solidarismo" (solidarity) style associations as a means of preventing the formation of trade unions and avoiding collective bargaining.
It is also common practice for employers to fail to declare employees, thereby avoiding the payment of social security contributions, even where these have been deducted from employees' pay packets. Not only are the employees deprived of social security cover, they are not officially recognised as permanent employees and are therefore denied any organising and collective bargaining rights.
Anti-union repression and intimidation at Pacifictel: The state-owned telecommunications company for the coastal region, Pacifictel, dismissed the entire trade union executive and some one hundred workers simply for demanding respect of the workers' rights. In a blatant act of interference in the internal affairs of the trade union, the company imposed a new executive supporting the management's interests, backed by top government officials and with the consent of the labour authorities. The workers were not able to defend themselves and nor did they receive severance pay. Their cases were referred to the labour courts and although many of them ruled in the workers' favour, the state enterprise is refusing to comply with the rulings.
Intimidation is constant, and not even those following the government line are safe, since over 60 of the workers fired in the abovementioned case were part of the works council executive, which is composed of leaders linked to the government.
Dismissal of trade unionists in the oil industry: Four trade union leaders from the public enterprise Petroecuador and its subsidiaries were dismissed in May 2008 after criticising the conflict of interests within the government and demanding a single policy covering the oil industry. The leaders in question were Edgar de la Cueva, President of the works council of Petroproducción (CENAPRO); Ramiro Guerrero, President of the works council of Petrocomercial (CENAPECO); John Plaza, General Secretary of the works council of Petroecuador Matriz and of the board of management of the pipeline; and Diego Cano, President of the Federación Nacional de Trabajadores de Petroecuador (FETRAPEC).
Trade unionists accused of terrorism: On 26 September, Luis Muñoz Pasquel and Girard Vernaza Arroyo, leaders of the national federation of judicial associations, Federación Nacional de Asociaciones Judiciales del Ecuador (FENAJE), appeared in court, accused of invading a public building and terrorism, after having opposed plans to reorganise the judiciary, which threatened judicial employees' job stability, and proposing legal actions to halt the plans. According to information supplied by FENAJE and Public Services International (PSI), a political conspiracy was hatched against FENAJE and its main leaders, aimed at quashing any action by the organisation and removing its leaders from the public stage. This assertion is also based on the fact that there were proven violations of due process as well as irregularities in the other lawsuits filed against FENAJE, aimed at perverting the course of justice.
Sluggish administrative proceedings: Respect for workers' rights and freedoms is hindered by a lack of political will, poor legal enforcement, and the private interests of certain authorities. Rulings are often imposed in accordance with the will of the highest authorities, despite contravening the law. Arbitration courts can easily take four years to issue a ruling. Moreover, since the rulings of these courts are not implemented, the workers find themselves obliged to refer their cases to law courts, which delays the implementation of the ruling even further. If this involves a writ of attachment or order of sale, a further delay, of similar length to those in the administrative proceedings at the Ministry of Labour, is incurred, leading the workers to despair and, in many cases, to abandon their efforts.