Informe definitivo - Informe núm. 376, Octubre 2015

1. 449. The complaints are contained in a communication dated 27 June 2012 from the Ecuadorian Medical Federation (FME), and in communications dated 22 September and 20 November 2014, submitted jointly by Public Services International (PSI)–Ecuador, the National Federation of Education Workers (UNE) and the Standing Inter-union. The complaints were supported by the International Trade Union Confederation (ITUC) in a communication dated 24 September 2014.
2. 450. The Government sent its observations in communications dated 25 January 2013 and 20 January 2015.
3. 451. 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. 452. In its communication dated 27 June 2012, the Ecuadorian Medical Federation (FME) alleges that the Organic Act on the Civil Service (LOSEP), adopted on 29 September 2010, and its general regulations (Executive Decree No. 710 of 24 March 2011) do not recognize the freedom of association and collective bargaining rights of State employees, referred to as public servants by the LOSEP. In this regard, the complaint organization firstly states that, although article 23 of the LOSEP recognizes the right to freedom of association of public servants, the organizations that they can form do not have trade union status, the public agencies responsible for registering these organizations are not specified, and the protective provisions contained in the Labour Code do not apply to them. Secondly, it claims that the LOSEP does not recognize the right of public servants’ organizations to negotiate the working conditions and labour relations of their members, and thus violates Article 4 of Convention No. 98 and Article 5(2) of the Nursing Personnel Convention, 1977 (No. 149), according to which, the determination of conditions of employment and work should preferably be made by negotiation between employers’ and workers’ organizations concerned. The complainant organization furthermore indicates that article 24 of the LOSEP excludes the right to strike and the exercise thereof. Lastly, the complainant organization adds that the unilateralism demonstrated by the Government in the reforms that it has been implementing excludes any dialogue or consultations with trade union organizations, and that the use of legal and constitutional authorities has been rendered pointless by the control exercised by the Government over the judiciary and the Constitutional Court.
2. 453. In the communications dated 22 September and 20 November 2014, submitted jointly by PSI, UNE and the Standing Inter-union, the complainant organizations allege that the draft amendments to the Constitution of the Republic of Ecuador submitted to the Constitutional Court on 26 June 2014 seek to eliminate completely the exercise of freedom of association and collective bargaining in the public sector, therefore violating ILO Conventions Nos 87 and 98. They state that articles 10 and 13 of the draft amendments provide for the removal of article 229, paragraph 3 and the amendment of article 326, paragraph 16 of the Constitution, which establish that public sector workers are currently covered by the Labour Code. The amendments would therefore bring all public sector employees under the scope of the LOSEP system and other administrative laws. They add that the detrimental and destructive nature of the amendments with regard to rights can be seen in their sole transitional provision which sets out that public sector employees who are currently governed by the Labour Code will retain the rights guaranteed by this legal instrument.
3. 454. According to the allegations, the aforementioned amendments would complete the process to dismantle gradually the collective rights of public sector workers, which was initiated in 2007. In this regard, the complainant organizations state that: (i) the adoption of a new Ecuadorian Constitution in 2008 resulted in the exclusion of public servants, who make up 78 per cent of public sector workers, from the application of the Labour Code, as it brought them under the scope of special top-down administrative laws; (ii) since then, only public sector workers have been governed by the Labour Code and have enjoyed, albeit to a very limited extent, collective bargaining rights; (iii) the LOSEP and other laws governing working conditions in the public sector, adopted after 2008 (Organic Act on Public Enterprises (LOEP), Organic Act on Intercultural Education (LOEI) and Organic Act on Higher Education (LOES)), violate freedom of association, the right to collective bargaining, and the right to strike, as underscored by the ILO supervisory bodies, thus excluding public servants from the guarantees provided for in Conventions Nos 87 and 98; and (iv) extending the exclusion from the Labour Code to public sector employees, and consequently bringing them under the scope of the LOSEP and other administrative laws, as laid down in the draft constitutional amendments, would exacerbate the violation of Conventions Nos 87 and 98 previously indicated by the ILO supervisory bodies, and would lead to the inevitable disappearance of the trade union movement in the Ecuadorian public sector.
4. 455. Lastly, the complainant organizations claim workers’ representative organizations were not consulted previously on the draft constitutional amendments, which were supported by the judiciary.

B. The Government’s reply

1. 456. In its communication of 25 January 2013, the Government of Ecuador forwards the observations of the Ministry of Public Health, which states that the allegations made by the FME, according to which the LOSEP does not recognize the principles of freedom of association and collective bargaining, and violates ILO Conventions Nos 87, 98 and 149, are completely unfounded. It indicates that the support provided by the Ecuadorian Government for the trade union movement can be seen in the significant increase in the number of registered trade unions in recent years, and that full effect is given to Conventions Nos 87, 98 and 149, in particular Article 6 of Convention No. 149 which establishes that nursing personnel should enjoy conditions at least equivalent to those of other workers in the country concerned.
2. 457. In its communication of 20 January 2015, the Government provides its observations on the complainant organizations’ allegations regarding the draft amendments to the Constitution. The Government states that: (i) the draft constitutional amendments are currently being debated before the National Assembly and therefore it is not completely certain that they will be incorporated in Ecuadorian legislation; (ii) the removal of article 229, paragraph (3) of the Constitution and the amendment of article 326, paragraph (16) seek to apply and extend the principle of equality and non-discrimination in labour relations in the public service, by harmonizing the legislation governing labour relations in the public sector; (iii) Article 6 of Convention No. 98 establishes that the Convention does not deal with the position of public servants engaged in the administration of the State; (iv) the LOSEP recognizes the freedom of association and the right to organize of public servants, as demonstrated in article 24 which prohibits public servants from abusing their authority in order to restrict the freedom to vote, freedom of association or other constitutional guarantees, and, in article 33, which provides for the granting of paid leave to public servant associations, therefore demonstrating that the harmonization of the labour regimes of public bodies will not diminish the rights of their employees; and (v) lastly, given that the Labour Code, due to its age, contains better-developed provisions in this regard, the Ministry of Labour will issue, once the constitutional amendments have been adopted, the relevant regulations in order to ensure the observance of the trade union rights contained in the Constitution of the Republic and the international Conventions, and to guarantee the rights of all workers in the public sector.
3. 458. The Government also indicates that, prior to being submitted to the National Assembly for approval, the draft constitutional amendments were brought to the attention of the Constitutional Court, which considered that the removal of labour regime differences for public servants and public sector workers, far from undermining constitutional rights, guarantees equal treatment for state employees. As regards the transitional provision contained in the amendments, which establishes that public sector workers hired before the entry into force of the amendments will retain the rights guaranteed by the Labour Code, the Court observed that the proposal seeks to ensure the principle that the law may not be backdated.

C. The Committee’s conclusions

1. 459. The Committee notes that this case concerns, first of all, the alleged violation by the LOSEP of the international labour Conventions on freedom of association and collective bargaining ratified by Ecuador, and secondly, the alleged exacerbation of this situation in the event of the adoption of the draft constitutional amendments, which were submitted in 2014 and are currently being considered by the National Assembly. These draft amendments provide for the exclusion of public sector workers from the application of the Labour Code and bring them under the scope of administrative laws governing the employment conditions of other public sector workers, among which the LOSEP is the most important legal instrument.
2. 460. The Committee notes that the Government denies having violated the principles of freedom of association and collective bargaining by stating that the LOSEP recognizes freedom of association and that the constitutional amendments criticized by the complainant organizations are not only necessary to ensure compliance with the principle of equality among public sector employees, but also are respectful of the acquired rights of workers in this sector, and that it furthermore recognizes that the provisions on freedom of association contained in the administrative laws should, in due course, be further developed.
3. 461. The Committee observes that the issue of the LOSEP’s conformity with Conventions Nos 87 and 98, raised in the first allegation in this case, has already given rise to: various comments by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) which requested a reform of the law; a discussion before the Conference Committee on the Application of Standards in 2014 on ILO Convention No. 98; and, as a result of this discussion, an Office mission headed by the Director of the International Labour Standards Department, which visited the country from 26 to 30 January 2015 and whose mandate addressed the application of Conventions Nos 87 and 98, in addition to the cases pending before the Committee. The Committee notes that the CEACR particularly regretted the absence in the LOSEP of protective provisions against anti-trade union discrimination and interference by employers, in addition to the exclusion of the collective bargaining rights of all public servants, which therefore also applies to public servants who are not engaged in the administration of the State.
4. 462. While noting the Government’s recognition that, with regard to freedom of association, the legislation pertaining to the public sector should be further developed, the Committee observes that the Government’s reply does not contain any specific details on the measures taken to reform the LOSEP. In these circumstances, the Committee considers it necessary for the Government to initiate, without delay, consultations with workers’ organizations in the public sector, in order to implement reforms that would ensure that the LOSEP fully complies with the principles of freedom of association and collective bargaining. Since Ecuador has ratified Conventions Nos 87 and 98, the Committee hopes that the Government will provide the CEACR with detailed information on the measures taken to reform the LOSEP in this respect, and on the legislative aspects of this case.
5. 463. With regard to the alleged violation of Conventions Nos 87 and 98 by the draft constitutional amendments which were submitted in June 2014 and which are currently under consideration by the National Assembly, the Committee notes the following issues raised in the complainant organizations’ allegations and in the Government’s reply: (i) under article 229 and article 326, paragraph (16) of the 2008 Constitution, which is currently in force, a distinction is drawn between public servants whose employment and working conditions are governed by special administrative laws (including the LOSEP) and public sector workers who are governed by the Labour Code; (ii) the draft constitutional amendments that are the subject of the complaint provide for the removal of article 229, paragraph (3) of the Constitution and the amendment of article 326, paragraph (16) in such a way that public sector employees would no longer be governed by the Labour Code and would therefore be entirely subject to the administrative laws governing working conditions in the public sector; (iii) the rules applicable to public sector employees (including public enterprises) would therefore be harmonized, with the exception of the sole transitional provision contained in the draft amendments; (iv) under this transitional provision, public sector workers hired before the entry into force of the amendments would retain the rights guaranteed by the Labour Code, and therefore the amendments would only affect workers hired after their entry into force; (v) the draft amendments were examined by the Constitutional Court, which considered that they did not restrict the rights insofar as they helped ensure compliance with the principle of equality; and (vi) in accordance with the National Constitution, the draft amendments were submitted to the National Assembly for initial consideration, and a second reading by the Assembly is pending.
6. 464. The Committee notes the complainant organizations’ allegations that the draft amendments, on which the trade union organizations had not been consulted, would complete the process to dismantle gradually the collective rights of public sector workers which was initiated in 2007 and accelerated by the adoption of the LOSEP and other organic laws governing the public sector (LOEP, LOEI and LOES). The Committee notes the Government’s statements that: (i) the draft amendments ensure full respect for the principle of equality and non-discrimination in the public sector by harmonizing the legal systems applicable to public sector employees; (ii) the transitional provision ensures the observance of acquired rights; (iii) the provisions of the LOSEP which will apply to all public servants are not contrary to the right to organize; and (iv) as the Labour Code contains better-developed provisions in this regard, the Ministry of Labour will issue, once the constitutional amendments have been adopted, the relevant regulations in order to ensure the observance of the trade union rights contained in the Constitution of the Republic and the international Conventions so as to guarantee the rights of all public sector workers.
7. 465. As this case deals with draft amendments that have not yet been adopted, the Committee wishes, firstly, to recall that, when it has had to deal with precise and detailed allegations regarding draft legislation, the Committee has taken the view that the fact that such allegations relate to a text that does not have the force of law should not in itself prevent it from expressing its opinion on the merits of the allegations made. It has considered it desirable that, in such cases, the Government and the complainant should be made aware of the Committee’s point of view with regard to the proposed bill before it is enacted, since it is open to the Government, on whose initiative such a matter depends, to make any amendments thereto (see paragraph 27 of the Special procedures for the examination in the International Labour Organization of complaints alleging violations of freedom of association).
8. 466. The Committee also indicates that the transfer from a private law system to a public law system is not problematic per se, as long as it respects the principles of freedom of association and collective bargaining. In this regard, the Committee recalls that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment be preceded by detailed consultations with the relevant organizations of workers and employers [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1075], and observes the Government’s lack of response to the allegations, according to which the public sector workers’ organizations were not previously consulted on the draft constitutional amendments.
9. 467. As regards the content of the draft constitutional amendments and their potential consequences in terms of freedom of association and collective bargaining, the Committee takes note of the following extracts from the report of the ILO mission, which visited Ecuador between 26 and 30 January 2015, and which forwarded a copy of the report to the Ecuadorian tripartite constituents:
   • Given that the ILO supervisory bodies have already made repeated comments highlighting serious limitations on the right to collective bargaining in the public sector, which are contrary to Convention No. 98, the Mission draws the Government’s attention to the sensitive nature of the amendments in question, which are currently the subject of a complaint before the Committee on Freedom of Association (Case No. 2970). In light of the above, the Mission considers it appropriate for the Government to initiate, without delay, substantial dialogue with the trade union organizations on the proposed amendments, in order to ensure that the possible transfer of public sector employees from the public system under the Labour Code to the LOSEP system does not cause a further restriction of the collective bargaining rights of public sector employees who are not engaged in the administration of the State. Accordingly, the Mission recalls once again that the ILO is fully prepared to provide technical assistance for the aforementioned dialogue and for the discussions on the amendments within the National Assembly.
10. 468. In light of the above, the Committee observes that the possible adoption of the draft constitutional amendments would extend the scope of application of the LOSEP and other related administrative laws (LOEP, LOEI, LOES) to all State employees (except public sector workers hired before the entry into force of the amendments). The Committee observes in particular that the aforementioned laws do not recognize the right of public servants to collective bargaining, regardless of whether they are engaged in the administration of the State, and notes that, if the current legislation were maintained, the adoption of the constitutional amendments would increase the restrictions on the collective bargaining rights of public sector employees who are not engaged in the administration of the State.
11. 469. In this respect, the Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies) as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the government, by public undertakings or by autonomous public institutions; only the former category can be excluded from the scope of Convention No. 98 [see Digest, op. cit., para. 887]. The Committee therefore considers that, in light of the draft constitutional amendments, which, if adopted, would extend the application of the LOSEP, it is even more imperative to reform this law, as underscored earlier in these conclusions. While noting the Government’s statement that the Ministry of Labour would adopt rules to govern the trade union rights of public servants more expressly once the constitutional amendments had been adopted, the Committee observes that it has not received any information on specific initiatives to reform the LOSEP accordingly.
12. 470. Under these circumstances, the Committee urges the Government to initiate immediately consultations with workers’ organizations in the public sector, with a view to taking the measures necessary to ensure that the draft constitutional amendments are in line with the principles of freedom of association and collective bargaining and the legislation applicable to the public sector, fully complies with these principles. The Committee expects that the Government, in light of its ratification of Conventions Nos 87 and 98, will send detailed information to the CEACR on the measures taken in this regard, and on the legislative aspects of this case. The Committee also recalls that the Government may draw upon the technical assistance of the Office.