Informe provisional - Informe núm. 329, Noviembre 2002

1. 493. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) and the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL) presented the complaint in communications dated respectively 27 May and 17 June 2002. The Government forwarded its observations in communications dated 11 June, 22 August and 8 October 2002.
2. 494. 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. The complainants’ allegations

1. 495. In its communication dated 27 May 2002, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) referred to a strike that began in May 2002 in the plantations of the Los Alamos ranch (which grows bananas for the Noboa Banana Corporation). The strike involved the National Federation of Free Peasants’ and Indigenous Peoples’ Associations of Ecuador (FENACLE), which is endeavouring to organize the banana workers.
2. 496. The IUF alleges that, on 26 April 2002, recognition was granted to the trade union organizations that had applied for registration in order to represent the workers of the three companies administering the Los Alamos ranch and selling produce to the Noboa Banana Corporation. On 6 May, a strike was begun to protest at the dismissal and harassment of the trade unionists and demand the reinstatement of 124 workers dismissed as a consequence of a previous strike for trade union recognition. However, instead of negotiating, the employers organized violent attacks on the workers. On the morning of 16 May 2002, hundreds of hooded men, many of them armed, attacked the striking workers in the Los Alamos plantations. A dozen men were injured, some by bullets, and some women were harassed. It was reported that a Noboa company vehicle accompanied the assailants. According to the IUF, the Los Alamos plantations remain occupied by armed men, who are supplied and reinforced by Noboa company planes. The strike is ongoing, but the Government of Ecuador has still not taken effective measures to protect these workers against dismissals, intimidation and armed attacks and the Ministry of Labour has stated that it is not able to intervene to defend these fundamental rights guaranteed by ILO Conventions Nos. 87 and 98.
3. 497. In its communication dated 17 June 2002, the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL) referred, like the IUF, to the conflict involving the Noboa Banana Corporation. According to the CEOSL, the Los Alamos ranch, in Guayas Province, was in May subdivided into seven “mini-ranches” in order to prevent unionization by making them independent of the main Los Alamos ranch and, inconsistently with this policy, three third-party companies were set up, which exploit the workers mercilessly. When an attempt was made to uphold the workers’ rights by means of a strike, some 400 mercenaries were sent in to shoot at the workers point-blank, wounding a number of them, two seriously. The Government dragged its feet and behaved in a manner that indicated it favoured the employers. The CEOSL sent a summary of the conflict, produced by FENACLE, which stated the following:
4. – on 6 May 2002, the strike was announced at the Los Alamos ranch, with participation by some 1,200 workers (many of whom live at the ranch) who wished to improve their working conditions by means of a collective agreement;
5. – on 16 May at approximately 2 a.m., a group of approximately 400 hooded and armed men arrived, broke down the door with a truck and began to shoot at and attack the striking workers. Between 60 and 80 workers were taken to the radio office, where they were subjected to abuse and made to get into various vans; they were then locked in a truck and threatened that they would be taken far away and killed. Other workers called the police and in the meantime punctured the vehicle’s tyres to help their comrades escape. The attackers stole and looted workers’ property, which had been bought with great difficulty on the low wages they earned. During the attack, a number of workers were wounded by shots from the attackers’ rifles. One, Mr. Luis Vernaza, was shot at very close range and severely wounded in the right foot (which subsequently had to be amputated) and bled profusely for approximately two hours without being given first aid. The assailants threatened those of the workers who tried to help him. An ambulance arrived at 8 a.m. A small number of police arrived at approximately 6 a.m. in a patrol car. This made it more difficult for the criminals to leave, and moreover they wanted to take the stolen goods with them. They remained inside the ranch all day and were evacuated by helicopter to avoid identification. The assailants later admitted that they were under company orders and in company pay; two of them claimed to be personal bodyguards of Mr. Alvaro Noboa. The police accepted food from the attackers and refused to intervene to help the workers;
6. – in the afternoon of 16 May, the attackers threatened the workers that, if they did not leave voluntarily by 6.30 p.m., they would be forced out. At about 6.15, someone tried to leave the ranch by bus. This was used as an excuse for starting the second attack on the workers. The attackers moved up the entry road, shooting into the air, while a second group concealed itself and shot at the workers directly. They wounded a number of workers and a police officer. One of the victims (Bernabé Menéndez) was seriously wounded in the stomach and head;
7. – a police special forces (GOE) unit arrived at about 7 p.m. and captured 16 of the attackers, who are being held at Milagro police station. The police took the entrance to the ranch, which meant that the workers were not allowed to go back to their former positions;
8. – a negotiating meeting began at 1 p.m. on 20 May in the Department of the Ministry of Labour. It was called by the Minister and attended by representatives of the Noboa Corporation and representatives of the Los Alamos workers affiliated to FENACLE, CEOSL and the Guayas Free Workers’ Federation (FETLIG). The workers demanded the following: job security for three years; reinstatement of the workers dismissed; payment of wages lost before suspension; payment of wages for the time of the strike; payment of social benefits or extra redundancy pay for those who were given redundancy pay below the legal minimum; payment of all workers’ social insurance contributions; and compensation for the wounded;
9. – on 27 May, the Los Alamos ranch admitted in writing that it was not complying with the labour legislation and promised to comply with it; unfortunately, the letter did not provide for worker reinstatement, job security and compensation. On 28 May, the workers, who were still on strike, presented the company with a formal written statement of their demands. Meanwhile, the company brought in strike-breakers (mostly under age) accompanied by hired assassins; and
10. – from the beginning of June, there were negotiations between the workers and the Ministry of Labour on the subject of the workers’ demands, but the employers refused to accept any compromises.
11. B. The Government’s replies
12. 498. In its communication dated 11 June 2002, the Government states that in 2002 the Ministry of Labour, acting through the Department of Coastal Labour, granted legal personality to seven trade unions connected with the banana industry. The Government states that the Ministry of Labour took the following measures in response to the problem that arose at the Los Alamos ranch, where there is a collective labour dispute:
13. – it asked the police to intervene on an ongoing basis to protect the workers from harm and avoid confrontations;
14. – it used an independent mediation process to bring the parties together and seek a rapid solution to the conflicts;
15. – in parallel, and in accordance with the national Constitution and Labour Code, three Conciliation and Arbitration Tribunals were organized. These are the only forums that have the authority to examine collective labour disputes and include two worker representatives, two employer representatives and a labour inspector, who chairs the tribunal and leads and organizes the process;
16. – in the event that the mediation activities, which are ongoing, were to be unsuccessful, the conflicts would have to be further examined by the courts and a judgement rendered; and
17. – the conflict at the Los Alamos ranch actually consists of three collective labour disputes, since the workers there are employed by three different companies.
18. 499. The Government adds that it can be seen from the above that the Ministry of Labour has been proactive and diligent and that, given the nature of conflicts (which tend to be explosive), the Ministry of Labour would not otherwise be involved as it is in settling the current dispute. The Ministry has been careful and diligent and complied with constitutional and legal standards in attempting to resolve this and other conflicts in order to uphold workers’ rights and ensure that peace is maintained.
19. 500. In its communication dated 22 August 2002, the Government states that unlawful acts of wounding are entirely at odds with the Ecuadorian legal system and society and such acts are noted and deplored. The criminal acts in this case, which appear to have occurred within a banana ranch, must be duly investigated by the competent authorities, namely the Office of the Public Prosecutor and the Ministry of Internal Affairs, in order that the perpetrators and their accomplices and abettors may be brought to justice.
20. 501. In accordance with the above, it should be carefully established that these criminal acts are not connected with the labour legislation, nor with individual or collective labour disputes, nor, indeed, with any failure to comply with international social and labour standards, but with circumstances of crime that can, unfortunately, occur in any country and any society.
21. 502. As regards restrictions on freedom of association and unionization, there are no such limitations or infringements. This right is granted freely on request in accordance with the legislation.
22. 503. The competent authorities have been approached and informed about the alleged criminal acts described above; further information will be transmitted to the ILO as soon as it becomes available.
23. 504. As regards the Los Alamos ranch and its collective labour disputes, which are being handled through the normal proceedings, the Government attaches documents on the steps taken by the authorities and the Conciliation and Arbitration Tribunal, from which it follows that there is a problem between two special committees that are disputing the right to represent workers and that there have been no rulings on the substance. It is emphasized once more that the alleged acts of violence are ordinary criminal acts that do not represent the labour or trade union situation. It will be necessary to examine the police and prosecution reports in order to determine the truth of these allegations of unlawful acts.
24. 505. In its communication of 8 October 2002, the Government sent information from the Attorney-General’s office from which it emerges that an officer from that office started a preliminary investigation and that there are sufficient grounds to bring penal charges against several people for participation in criminal acts. As a result, 16 enterprise security guards and two policemen are held in custody. The officer from the Attorney-General’s office should present a report to the judge.

C. The Committee’s conclusions

1. 506. The Committee notes that the complainants allege serious violations of the right to strike at the Los Alamos ranch. According to the complainants, the strike was responded to by hundreds of armed and hooded men invading the plantations, wounding twelve workers (two seriously) and harassing female workers. It is also alleged that the attackers detained, threatened and abused a group of 60 to 80 workers and looted workers’ belongings; the attackers were subsequently evacuated by helicopter. Finally, it is alleged that, when negotiations began, the employers brought in strike-breakers accompanied by hired assassins. The complainants emphasize the employers’ responsibility for these actions.
2. 507. As regards the alleged acts of violence, the Committee notes the Government’s statement, according to which: (1) the alleged criminal acts are to be investigated by the Office of the Public Prosecutor and the Ministry of the Interior in order that the perpetrators and their accomplices and abettors may be brought to justice; (2) the competent authorities (Attorney-General’s office) have been approached regarding the alleged criminal acts and have provided information that, according to the preliminary investigation of the officer of the Attorney-General’s office, sufficient grounds exist in order to bring penal charges against those who took part in the events and that, as a result, 16 enterprise security guards and two policemen are held in custody. The officer from the Attorney-General’s office should present a report to the judge; and (3) the Ministry of Labour has asked the police to intervene on an ongoing basis at the Los Alamos ranch to protect the workers from harm and avoid confrontations.
3. 508. The Committee emphasizes the gravity of the allegations of various acts of violence and intimidation in response to a strike and recalls that “freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed” and that “the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 46 and 47]. Since the case under consideration involves serious wounding of trade unionists and abuse and aggression against strikers and their property, the Committee urges the competent authorities to ensure immediately that an investigation and legal proceedings are commenced to find out what happened, define responsibilities, punish the guilty parties, award compensation and prevent such incidents happening again. The Committee requests the Government to inform it of developments in this respect and notes that “justice delayed is justice denied” [see Digest, op. cit., para. 56].
4. 509. As regards the labour aspects of the conflict at the Los Alamos ranch, the Committee notes that the allegations are connected with the negotiation of a collective agreement and that the complainant recognizes that there have been negotiations, but states that the employers would not compromise and, while acknowledging that the labour legislation is not being complied with, still ignores the issues of reinstatement of the dismissed workers, job security and compensation of the injured. The Committee notes that the Government has provided information on the steps taken by the authorities as regards the normal procedures for labour disputes (independent mediation and the simultaneous intervention of three Conciliation and Arbitration Tribunals).
5. 510. The Committee observes, however, that neither these measures nor the intervention of the Tribunal have resolved the conflict and that the Tribunal has not pronounced on the substance (this is due at least partly to a problem between two special committees that both claim competence to represent the workers). Hence, the Committee reiterates that it is important to resolve labour disputes without delay and that justice delayed is justice denied. The Committee requests the Government to encourage negotiation in good faith between the parties with a view to the conclusion of a collective agreement on general working conditions and hopes that the three Conciliation and Arbitration Tribunals will pronounce without delay on other, more specific issues relating to the strike at the Los Alamos ranch (dismissals, compensation of the injured, the introduction of strike-breakers, etc.). The Committee emphasizes that no worker should be dismissed or prejudiced for having peacefully exercised the right to strike and requests the Government to inform it in this respect.