Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 335, Noviembre 2004

1. 842. The Committee examined this case at its meetings in March 2002 and June 2003, and on both those occasions submitted an interim report [see the Committee’s 327th Report, paras. 525-547; and 331st Report, paras. 396-415, approved by the Governing Body at its 283rd and 287th Sessions in March 2002 and June 2003, respectively].
2. 843. The Government sent new observations in communications dated 16 September 2003 and 13 April 2004.
3. 844. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 845. When it examined the case at its meeting in June 2003, the Committee made the following recommendations which remained pending [see 331st Report, para. 415]:
   • (a) The Committee requests the Government to send the report by the labour inspectorate concerning the alleged pressure by the COSMAG company for workers to renounce union membership, thus preventing the registration of the trade union owing to it not having the legal minimum number of members.
   • (b) The Committee requests the Government to send the up-to-date text of the Promotion of Investment and Citizen Participation Act.
     • [According to the complainants, sections 190 and 191 allow an employer to negotiate a collective agreement with workers without any requirement that the workers in question be unionized.]
   • (c) As concerns the allegations objecting to article 94 of the Economic Transformation Act which provides for the “standardization of salaries”, the Committee requests the complainant organizations to indicate specifically the manner in which the application of this provision violates trade union rights. The Committee also requests the Government to communicate its position in this respect in greater detail.
   • (d) The Committee once again requests the Government to send its observations concerning the allegations relating to the Hotel Chalet Suisse.
     • [The allegations refer to failure of the administrative authority to set up a conciliation and arbitration tribunal in response to a request by the trade union organization (“works council”) representing workers at the Hotel Chalet Suisse following presentation of a collective agreement.]
   • (e) The Committee requests the Government to indicate whether the 11 trade union officials of the IESS (Roberto Checa, Ana Herrera, Marlene Cartagena, José Ortiz, Gloria Correa, Wilson Salguero, Lenín Villalba, Bolívar Cruz Vasquez, Judich Chuquer, Angel López and Adolfo Nieto) have had criminal proceedings brought against them and, if so, to communicate the charges and specific facts of which they have been accused. The Committee also requests the Government to send it any decisions or rulings that have been handed down in this respect.

B. New reply from the Government

1. 846. In its communications of 16 September 2003 and 13 April 2004, the Government states that the workers of the COSMAG company expressly abandoned their intention to form a union in 2000. Moreover, there were voluntary termination agreements (ending the employment relationship by agreement between the parties), and there is no knowledge of these former COSMAG workers, either as a group or individually, applying to administrative or judicial authorities to enforce any right or to allege the violation of any right. The Ministry of Labour has confined itself to pursuing the administrative procedure for registration of the union, and in this context it noted that the union lacked the minimum membership required, and some of the members even had probationary contracts, which meant that they did not remain in the company so as to follow up their claim to form a union. As is noted in the inspection report, four of the workers who previously wished to set up a union were interviewed, and the employer was informed in their presence of the right of workers to freedom of association and the employer’s obligation to refrain from interfering in trade union affairs, and that if in future attempts were made to do this, things would proceed according to the law. The Government sent a report by the labour inspectorate, a statement signed by the company manager (both in March 2003), and copies of six termination documents and four probationary contracts.
2. 847. As regards the allegations regarding the Hotel Chalet Suisse, the Government states that the authority has confined itself in this case solely to applying the law, and relations between workers and employers are defined by the contractual provisions established in accordance with the law. It was noted that the workers involved in the internal dispute have lost any legal right to act as representatives among themselves, and the majority have clearly indicated to the labour authority that they do not wish to take collective action. The reasons of the party that initiated the administrative action are not known, since it did not appear before the labour authority to set out its case, as indicated in the statement by the Quito Labour Department dated 14 September 2000; the Ministry cannot pursue the action as there is an express application to revoke the collective claim, with the signatures required, and this is not opposed. The Government attaches a communication dated August 2000 signed by the workers of Hotel Chalet Suisse, stating that the collective claim was submitted without any consultations with them, and demanding that it be set aside; as well as a statement by the General Department of Labour dated 14 September 2000, which notes that those who presented the collective claim did not appear, although they were invited to do so and to attend a meeting on the abovementioned communication of August 2000.
3. 848. With regard to section 94 of the Economic Transformation Act, the Government states that this legislation does not violate workers’ fundamental rights, and its sole purpose is to standardize the various wage components, since over a number of years, especially over the last two decades, different general forms of remuneration have been established, in some cases only at the institutional or local level, without affecting basic pay; the aim was to standardize these different components with wages to create a single wage component. This would also make it possible to rationalize public spending especially with regard to the payment of public servants’ salaries, without this resulting in any loss of value. This consolidation in no way restricted bargaining or any wage increases that might be won in the private sector by collective bargaining. Section 94 of the Act in question reads as follows: “Standardization of salaries. As from the entry into force of this Act, the amounts corresponding to the fifteenth monthly salary and the sixteenth salary will be added to the remuneration received by workers in the country’s private sector; as a result, said wage components will no longer be paid in the private sector.”
4. 849. The Government has sent the ILO a copy of the Promotion of Investment and Citizen Participation Act, and states that it does not violate any principles relating to workers’ rights. Section 190 of the Act replaces former section 224 of the Labour Code with the following:
   • Section 224. A collective contract or agreement is an agreement between one or more employers and one or more legally constituted workers’ associations, as the case may be, for the purpose of establishing the conditions or basic principles in accordance with which subsequent individual employment contracts must be drawn up.
   • Section 191 of the Act repeals section 225 of the Labour Code, which stated:
   • Section 225. An employer who hires 15 or more workers belonging to an association shall be required to conclude a collective agreement when that association requests it. Where there is a works council, its officers will be required to represent the workers in the collective agreement. Where there is no such council, representation shall be determined by decision of the contracting association in accordance with its by-laws.
   • The Government cites a ruling by the Constitutional Court that section 190 was unconstitutional.

C. The Committee’s conclusions

1. 850. The Committee notes that the present case concerns: (1) the alleged pressure by the COSMAG company in 2000 to force workers to leave the union, thus preventing registration of the union under formation on the grounds that it lacked the minimum number of members; (2) articles 190 and 191 of the Promotion of Investment and Citizen Participation Act which, according to the complainants, allow collective bargaining with non-unionized workers; (3) article 94 of the Economic Transformation Act, which allegedly restricted salary negotiations.
2. 851. As regards the alleged pressure by the COSMAG company in 2000 to force workers to leave the union, thus preventing registration of the newly formed union on the grounds that it lacked the legal minimum number of members, the Committee notes that according to the Government: (1) no worker has taken legal action on this matter; (2) some workers had a probationary contract and therefore did not remain with the company in order to follow up their request to form a union; (3) four of the workers who were interested in organizing remain with the company. According to an inspection report (March 2003), the current manager stated that the majority of the unionized workers had been tricked by the supervisor, who made them sign blank sheets which were later put together for the purpose of establishing the union, and that the company has never opposed free unionization. In a report by the labour inspectorate (March 2003), the following is found in the conclusions:
   • According to Mr. Mayor José Cano (currently Managing Director of the company), the workers who formed an organization decided to leave the company and only four of them were left, so it is obvious that the organization was not legally registered because membership fell below the legal minimum. However, it is hard to believe that having got as far as announcing that they were forming a trade union, they suddenly resigned, and it is not possible to know what actually happened since the workers in question have now left the company and there exist termination statements duly legalized, in accordance with section 592 of the Labour Code.
   • The documents supplied by the Government indicate that six workers ended their employment with the company by mutual agreement (most of them in December 2000) and four others had probationary contracts dated 1995 (two), 1998 (one) and 2000 (one).
3. 852. Under these circumstances, taking into account the fact that the version of events given by the new manager was not accepted by the labour inspectorate, the Committee cannot rule out the possibility that in 2000 the new trade union had ceased to have the legal minimum membership for registration as a result of anti-union practices. As the allegations go back to 2000, it might be difficult to reinstate the dismissed workers, especially given the labour inspection report which appears to indicate that the whereabouts of those concerned are not known. Nevertheless, the Committee requests the Government to ensure that no person is prejudiced in his or her employment by reason of their trade union membership or legitimate trade union activities, whether past or present. It recalls that where a government has undertaken to ensure that the free exercise of trade union rights shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should when necessary be accompanied by measures which include the protection of workers against anti-union discrimination in their employment. The Committee therefore requests the Government to undertake all necessary efforts to locate the workers in question, so that they may be reinstated in the company or, if that is impossible, they receive adequate compensation.
4. 853. As regards the allegation regarding the Hotel Chalet Suisse (failure on the part of the administrative authority to set up a conciliation and arbitration tribunal at the request of the union following presentation of a collective agreement), the Committee notes the Government’s statement and the documents it has provided, according to which: (1) the workers in question were not consulted on the request to form a trade union, and asked to have the request or claim set aside; (2) the signatories to the request did not appear before the administrative authority when invited to do so in 2002 in connection with the application to set aside the request.
5. 854. As regards the allegation concerning section 94 of the Economic Transformation Act (the gist of which is given by the Government in its reply), the Committee notes the Government’s statement to the effect that the provisions in question do not restrict negotiation of wage increases, and are intended only to standardize various elements of pay. It is the Committee’s understanding that this provision is intended to simplify the way in which workers’ pay is set, and that while it does not rule out wage increases, it does appear to prohibit additional increases based on special criteria.
6. 855. As regards the allegation regarding sections 190 and 191 of the Promotion of Investment and Citizen Participation Act (which, according to the complainants, allow collective bargaining with non-unionized workers), the text of which is given in the Government’s reply, the Committee notes that the Constitutional Court has found section 190 unconstitutional on the grounds that it violates the constitutional guarantee of collective bargaining and Convention No. 98, and that section 191 simply repeals section 225 of the Labour Code. Consequently, the Committee requests the Government to amend section 190 so as to bring it into conformity with Conventions Nos. 87 and 98, ratified by Ecuador and requests the Government to keep it informed in this respect.