Ecuador

"Article 2 of the Convention. Excessive number of workers (30) required for the establishment of workers’ associations and enterprise committees. Possibility of creating trade union organizations by branch of activity. For several years, the Committee has been drawing the Government’s attention to the need to amend sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and enable the establishment of primary-level unions comprising workers from several enterprises. The Committee notes that the Government does not refer in its report to the revision of the sections of the law relating to the number of workers required for the establishment of workers’ associations and enterprise committees, although the Committee has previously noted the position of several trade unions that the number of no less than 30 is disproportionate and unreasonable in view of the Ecuadorian business structure. "

"Article 4. Promotion of collective bargaining. The Committee recalls that, under section 221 of the Labour Code, collective labour agreements must be concluded with the enterprise committee (one of the forms that, under the Labour Code, trade unions can take within an enterprise) or, if one does not exist, with the organization with the largest number of worker members, on condition that it represents over 50 per cent of the workers in the enterprise."

"Compulsory arbitration in the private sector. The Committee previously observed that both the National Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration tribunals, and asked the Government to adopt the necessary measures to amend the legislation, in order to ensure that compulsory arbitration is only possible in cases where strikes may be limited or even prohibited. The Committee notes the Government’s reiteration that the Labour Code regards mediation as a dispute settlement mechanism and that when the Ministry is informed of disputes, it offers objective support in order to end the strike subject to agreement on the parties’ interests. The Government also indicates that, in the wake of the change of Government, once the new legislative authorities are in place, the analysis of disputes of this type will continue in order to guarantee protection for all stakeholders in labour relations. While noting these indications, the Committee recalls that the provisions in question contain the possibility of referring disputes not only to mediation but also to compulsory arbitration. In this regard, the Committee once again recalls that recourse to compulsory arbitration to end a collective labour dispute and a strike is only acceptable: (i) when the two parties to the dispute agree to such arbitration; or (ii) when the right to strike may be restricted, or even prohibited, that is: (a) in the case of public servants exercising authority in the name of the State; (b) in disputes in essential services in the strict sense of the term; or (c) in situations of acute national crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. The Committee once again requests the Government to adopt the necessary measures to amend the legislation, so that compulsory arbitration is only possible in the situations referred to above. Article 3. Right to strike of public servants. Minimum services. The Committee previously noted that the Basic Act reforming the laws governing the public sector (Basic Reform Act) of 2017 prohibited strikes in the following public services: health; environmental sanitation; education; the justice system; the fire service; social security; electricity; drinking water; sewerage; oil and gas production; fuel processing, transportation and distribution; public transport; and the postal service and telecommunications."

"Article 3. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. The Committee previously drew the Government’s attention to the need to amend section 346 of the Basic Comprehensive Penal Code, which provides for a term of imprisonment of one to three years for stopping or obstructing the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. The Committee notes the Government’s indication that the appropriate procedure for public servants to assert the right to strike is regulated in chapter III (on strikes) of the Basic Public Service Act and refers to the provisions of the Act relating to declaring strikes illegal, indicating that the State has recourse to criminal proceedings as a last resort. The Committee notes with regret that the information provided by the Government suggests that no progress has been made on taking account of its comments. The Committee recalls that several trade unions previously indicated that section 346 of the Basic Comprehensive Penal Code was being used to criminalize social protest. The Committee once again strongly urges the Government to take the necessary measures to ensure that section 346 of the Basic Comprehensive Penal Code is amended in the manner indicated and, until such measures are taken, to ensure that this provision is not used to criminalize social protest."