2008 Annual Survey of violations of trade union rights - Ecuador
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Ecuador, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca95c.html [accessed 26 July 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The violations of trade union rights in sub-contracting and mining companies continued, despite the efforts of the Ministry of Labour and the constant complaints of the unions. Labour activists and trade unions expect better guarantees on respect for human and workers' rights to result from the work of the Constituent Assembly, as a result of the concrete proposals they had been submitting to the Assembly.
Trade union rights in law
The Constitution and Labour Code provide most workers with the right to form trade unions, with the exception of the police and public sector employees in non-revenue producing areas.
Obstacles to forming a trade union: Public sector workers are only allowed to submit a list of demands for collective bargaining or negotiate a collective agreement if they manage to form an ad hoc committee representing more than half the workforce.
Civil servants and public service workers who are employees or executive staff are subject to the Civil Service and Administrative Careers Act (Ley Orgánica de Servicio Civil y Carrera Administrativa, LOSCA). Blue-collar workers are subject to the Labour Code. The former are not allowed to organise in professional associations, trade unions or works' councils, whilst the latter are able to do so, depending on their precise work. However, only one organisation, the one with the most members, is allowed to fully represent workers in discussions with employers. This is what is referred to as "single union" status ("sindicato único").
A minimum of 30 workers is required to form a union. As 60 per cent of enterprises in Ecuador employ less than 30 workers, one million workers are effectively excluded from organising. Workers have to be of Ecuadorian nationality to sit on a union executive.
If the workers forming a trade union in an enterprise represent less than 50 per cent of the workforce, workers' councils have to be set up. To form a workers' council, the approval of 50 per cent plus one of the workforce is required. If the workers' council has more members than the union, the union will effectively have no power in the workplace.
Right to strike: The right to strike is virtually non-existent in the civil service. Only workers covered by the Labour Code, with the exceptions foreseen in article 35 of the Constitution, may go on strike.
The Constitution stipulates that it is prohibited to paralyse activities in the public sector. The activities listed include education, justice, social security, transport, the water service, electricity supply and fuel distribution, which are not included in the ILO's definition of essential services. Pursuant to Decree No. 105, passed on 7 June 1967, those breaching this rule are liable to between two and five years in prison.
In the private sector, strikes can only be called at enterprise 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 prohibits federations and confederations from calling strikes. Solidarity strikes and boycotts are restricted to a maximum of three days.
No collective bargaining for civil servants: Only the workers covered by the Labour Code have the right to take part in collective bargaining. For workers covered by the 2004 Civil Service and Administrative Careers Act, Article 110 establishes that working conditions shall not be agreed, but imposed. The same Act effectively prevents the majority of workers in State owned enterprises and any companies in which the State is a majority shareholder, from engaging in collective bargaining. Teachers are not allowed to negotiate at the local or workplace level, only at the national level.
Trade union rights in practice and Violations in 2007
Background: On 15 January, the newly-elected President, Rafael Correa, made three main promises on assuming office: there would be no more military bases in Manta; the Free Trade Agreement with the USA would not be signed, and subcontracting of labour would be ended. He also announced a referendum on the Constituent Assembly in Decree 002 and the Assembly was duly endorsed on 15 April. The union centres held demonstrations to insist on the government respecting workers' rights and the implementation of the international conventions covering organising, collective bargaining and other rights.
Following the people's formal approval of the Constituent Assembly, various social organisations including trade union centres began to hold consultations and get involved in the work of the Assembly, which started its operations in November. The points raised by the union centres included: the elimination of subcontracting and all forms of precarious employment contracts; the elimination of child labour; statutory trade union membership and collective bargaining; full guarantees on workers' organising, grievance and strike rights with no threat of subsequent penalties, and the speedy adoption of a new Labour Code.
Organising obstructed by management practices: In over 90 per cent of private enterprises where trade unions exist, management seeks to reduce the unions' influence by setting up "solidarismo" (solidarity) style associations.
It is also common practice for employers to fail to declare employees to the social security authorities, thereby avoiding payment of social security contributions – even if they have deducted these 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 their organising and collective bargaining rights.
Other practices, such as the extensive use of short-term contracts, and the fact that legal penalties against employers who violate the law are insufficiently dissuasive, prevent workers from enjoying their legally protected right to organise.
Anti-union repression on the banana plantations ... : Attempts to organise workers on Ecuador's banana plantations have met with systematic and severe repression. Ecuadorian trade unions have constantly denounced the terrible working conditions of the banana plantation workers. The workers are paid very low wages and are exposed to various chemical substances when working on the plantations during aerial pesticide fumigation. Child labour is widespread in this sector. About 98 per cent of workers are employed by sub-contractors, making it easier for employers to avoid their legal obligations.
Most workers are too afraid to organise. Despite the appalling conditions they need their jobs. Only seven of Ecuador's 6,000 banana plantations are unionised. Those who attempt to organise lose their jobs and are blacklisted.
... and in the flower companies: Just three of the country's 500 flower companies have unions. It is common practise for workers who organise, or attempt to do so, to be put on lists that are shared with other companies, with a warning that they should not be hired.
The authorities are complicit in preventing union organising. Flower workers have tried on repeated occasions to set up a federation. The Ministry of Labour has refused to register the federation, after consulting the flower producers and exporters' association Expoflores, which it has preferred to do rather than basing its decision on whether the applicant union has complied with all the relevant legal requirements.
Subcontracted workers demand the application of their collective agreements: On 14 February around 4,000 members of the Subcontracted Oil Workers' Federation working for Petroecuador in the provinces of Orellana and Sucumbíos began a sit-down strike at the entrances to the oil fields where they work or provide security services. They were protesting because various companies, including Hulcosur, terminated their contracts in 2006 and had not paid the staff since October. Five days later the state-owned company promised to transfer funds to Hulcosur so that it could pay the workers their December 2006 wages.
On 20 April, subcontracted workers at the private company Tecpecuador SA, that owns the oil fields belonging to Petroecuador Bermejo in the province of Sucumbíos, started a strike to demand the payment of their wages and "13th month" and insist that 50% of the workers be directly employed and 50% subcontracted. As a result of this action the workers were locked into the plants. In response, their union, the Federación de Trabajadores Tercerizados de Petrocomercial, stressed that a workers' committee had sent a letter to the management on 12 April asking for the problems of the 5,000 subcontracted workers to be resolved, but had not yet received any reply.
Dismissed for forming a union: The 32 union members working for the toilet-maker EDESA ("Empresa Ecuatoriana de Sanitarios") were dismissed by the company, which went on to sack a further 250 workers for showing support for the union. On 26 February, around 100 workers started a strike and occupied the company's buildings, south of Quito, in protest at the dismissal of some 300 workers. The Pichincha-based independent workers' Federación de Trabajadores Libres de Pichincha (FETRALPI) stressed that the sacked workers worked for the subcontracted Cetralca SA and that firm is linked to EDESA, since the General Manager of Cetralca SA is also the General Manager of EDESA. As a result, EDESA is responsible for the dismissals of the workers.
Pacifictel refuses to recognise union delegates: On 3 September, around 30 employees of the state-owned telephone company Pacifictel went on strike in Guayaquil. The strike was in response to the decision by the management to dismiss 11 employees, two of whom were newly-elected leaders of the works council and refused to give up their posts. The director did not recognise the election of the new leaders, on the pretext that they were no longer employed by Pacifictel. It should be stressed that over the last six months, 60 of the 2,000 employees have been sacked, supposedly for reasons of over-capacity. The sacked workers began a hunger strike on 6 September to demand their reinstatement and the management's recognition of trade union activities.