Informe provisional - Informe núm. 407, Junio 2024

1. 189. The Committee last examined this case (submitted in May 2015) at its October 2019 meeting, when it presented an interim report to the Governing Body [see 391st Report, approved by the Governing Body at its 337th Session (October 2019), paras 225–252].
2. 190. The Trade Union Association of Banana Plantation, Agricultural and Rural Workers (ASTAC) sent additional allegations in communications dated 31 October 2019, 5 January 2020, 18 and 30 May 2021, 17 March 2022 and 15 March 2023.
3. 191. The Government sent its replies in communications dated 4 February and 30 April 2020, 25 February 2022, 30 August 2023, 10 January and 15 April 2024.
4. 192. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Rural Workers’ Organisations Convention, 1975 (No. 141).

A. Previous examination of the case

1. 193. In its previous examination of the case in October 2019, the Committee made the following recommendations [see 391st Report, para. 252]:
   • (a) The Committee once again requests the Government to take the necessary measures to ensure that ASTAC is registered as a trade union organization if the organization so requests it again and to ensure that, in the meantime, the necessary guarantees and protections are provided to its members.
   • (b) In connection with the complaints filed by ASTAC on 8 November 2017, and 8 November and 28 March 2018 concerning blacklisting and anti-union acts, the Committee requests the Government to conduct the respective inquiries, to provide a copy of the findings of the inquiries and, if it is confirmed that anti-union acts were committed, to take measures with sufficient dissuasive effect to penalize those responsible.
   • (c) As to the allegations concerning anti-union acts perpetrated against the leaders and members of the 7 February Association of Banana Plantation Workers and ASTAC, the Committee urges the Government to meet with representatives of both complainant organizations to examine the allegations of anti-union discrimination in the banana sector outlined in the complaint.
   • (d) The Committee urges the Government to communicate without delay specific information on the alleged death threats against the general secretary of the 7 February Association of Banana Plantation Workers, Mr Luis Ochoa, and to keep it informed in this respect.
   • (e) The Committee urges the Government to ensure that the complaint filed by the secretary general of ASTAC, Mr Jorge Washington Acosta Orellana, on 7 March 2018, is investigated, that the Government takes any action necessary to prevent any repetition of those acts in the future and to ensure his safety, and that it keeps the Committee informed in this respect.
   • (f) As to the alleged anti-union effects of the three ministerial agreements issued by the Ministry of Labour (MDT-2017-0029, MDT-2018-0096 and MDT-2018-0074), the Committee invites the Government to examine, together with the organizations of employers and workers concerned, the impact of the reform on the exercise of freedom of association. The Committee requests the Government to keep it informed in this respect.

B. Additional information from the complainant

1. 194. In its communication of 5 January 2020, the complainant alleges that: (i) the application submitted by ASTAC on 11 January 2019 to register the trade union of workers at the CALAJUSA company (hereafter the trade union of company 1) was rejected by the Deputy Minister of Labour and Employment on 8 April 2019; (ii) the application from the trade union of workers at the Agricultural Company Banana Plantations of Ecuador (hereafter the trade union of company 2) to register its new leaders, submitted on 14 August 2018 to the Regional Labour Directorate, received no response; and (iii) contrary to what is stated by the Government, there is a lack of dialogue from the Ministry of Labour, which led ASTAC to appeal to the Office of the President of the Republic, which then referred the matter to the Ministry of Labour, as a result of which the Minister of Labour assigned the Undersecretary of Labour to deal with them, although only one 30-minute meeting has been held.
2. 195. On the other hand, the complainant reiterates its previous complaint that the Ministry of Labour’s issuance of three ministerial agreements between April 2017 and May 20918 relating to contractual arrangements applicable to workers in the banana sector constitutes a serious deterioration in freedom of association, the right to collective bargaining and the right to fair remuneration and a minimum wage. ASTAC alleges that those agreements were issued with the argument that banana production in Ecuador revolves around the popular, solidarity economy, with specific periods for planting and harvesting that adjust to statutory working hours, when in reality, banana production is a continual and intensive agro-industrial activity, in which the majority of cultivated land, where the majority of workers are employed and there are the worst labour conditions, is held by a small number of large and medium-sized producers.
3. 196. The complainant also alleges reprisals against two workers from the ORODELTI company (hereafter company 3) for requests relating to breastfeeding entitlements, which led to a reduction in working hours for ASTAC member Ms Maritza Mendoza and the blacklisting and dismissal of her husband. In addition, the complainant alleges that the contracting of Mr Juan Mora as a service-provider by the company COBONAFIN (hereafter company 4), was done with a view to evading labour costs and that the use of this contractual arrangement restricts his right to freedom of association.
4. 197. In its communications of 18 May 2021, the complainant reports that the Chamber of Admissions Tribunal of the Constitutional Court had decided to accept the request for an extraordinary protection order submitted on 22 June 2020 jointly with the Office of the Ombudsperson (as part of case No. 12-21-EP) in which it reported, among other things, the obstruction of the establishment of a branch-level trade union in the banana sector.
5. 198. In its communication of 31 May 2021, the complainant reports that, in a ruling dated 25 May 2021, the Tribunal of the Criminal Chamber of the Pichincha Provincial Court of Justice instructed the Ministry of Labour to: (i) register ASTAC as a trade union; (ii) regulate the exercise of the right to freedom of association by branch of activity; (iii) refrain from restricting or limiting the rights relating to freedom of association of other organizations applying for registration by branch of activity, under the same conditions and circumstances as those examined in this case; and (iv) directly and immediately observe and implement, in its actions and decisions, ILO Conventions Nos 87, 98, 141 and the Plantations Convention, 1958 (No. 110).
6. 199. In its communication of 17 March 2022, the complainant alleges that: (i) although the Government of Ecuador registered ASTAC as a banana sector trade union on 11 January 2022 as a result of that ruling, the Government designated that decision as unique such that it would not lead to the registration of other branch-level trade unions nor to a legislative change; (ii) the Government, through the Ministry of Labour, submitted an extraordinary protection order with a view to striking down the aforementioned ruling, which would not only put ASTAC at risk, but would also deny the right of all workers who wanted to organize themselves in a branch-level trade union; and (iii) the lack of standards that recognize industry trade unions represents a continued violation of the right to freedom of association and weakens ASTAC in a practical sense, as it seriously inhibits is ability to negotiate necessary improvements in working conditions in the banana sector.
7. 200. On the other hand, the complainant alleges, with regard to the death threats against Mr Jorge Washington Acosta Orellana which were the subject of a complaint to the Public Prosecutor’s Office on 23 February 2018, that they have not been investigated, as urged by the Committee on Freedom of Association, in fact quite the contrary: (i) he has been the subject of numerous complaints, including the spreading of false information to create economic panic, invasion of privacy and tax fraud, in retaliation for his efforts to secure the registration of the ASTAC union; and (ii) the American Bar Association Center for Human Rights, which supervised the proceedings in the tax fraud case, concluded that there was cause for concern that officials could be using the criminal proceedings against Mr Jorge Washington Acosta Orellana to intimidate and silence him, in violation of his right to a fair trial, as well as his right to freedom of association and expression.
8. 201. In its communication of 15 March 2023, the complainant alleges that: (i) five months after the registration of ASTAC, on 27 June 2022, the organization’s extraordinary general assembly was held, during which it was decided to admit 47 workers to the organization; (ii) the registration application for the leadership of ASTAC, which had been submitted on 28 October 2022, was denied through official letter No. MDT-VTE-2022-0948-O which stated that the formal registration requirements had not been complied with, when in fact it was the Ministry of Labour itself that had neglected to issue a regulation permitting the regulation of the exercise of freedom of association for branch-level trade unions; (iii) consequently, an appeal was submitted for violation of the right to freedom of association and the right to organize of the workers in question without prior authorization; (iv) although, as a trade union, ASTAC is recognized by the State, its legal representation remained restricted, which meant that its current elected leadership was being prevented from exercising its function; and (v) the struggle for freedom of association and the right to organize at the branch level in Ecuador rests on just two organizations – ASTAC and the Ecuadorian Digital Platform Workers’ Front (FRENAPP), which are being denied registration for branch-level unions and the full exercise of their trade union rights, in clear non-compliance with the ruling achieved by ASTAC.

C. The Government’s reply

1. 202. In its communication of 4 February 2020, in connection with the complaints filed by ASTAC on 8 November 2017, and 8 November and 28 March 2018 concerning blacklisting and anti-union acts for which the Committee had requested the Government to conduct the respective inquiries, the Government states that: (i) the Ministry of Labour guarantees the right to freedom of association by means of labour inspections, addressing complaints from workers who claim to have been victims of anti-union acts and the application of sanctions; and (ii) the Standard for the Eradication of Labour Discrimination (Ministerial Decision No. MDT-2017-0082) provides for the imposition of fines from 3 to 20 times the statutory minimum wage for acts of discrimination, such as blacklisting.
2. 203. As to the allegations concerning anti-union acts perpetrated against the leaders and members of the 7 February Association of Banana Plantation Workers and ASTAC, and the Committee’s request for it to meet with representatives of those organizations to examine the allegations, the Government states that it had made ongoing dialogue a policy of State, and on that basis it was prepared to hold the necessary meetings to bring resolution to the reported acts of union discrimination.
3. 204. With regard to the report of alleged death threats against ASTAC’s general coordinator, Mr Jorge Washington Acosta Orellana, and the complaint alleging intimidation against the general secretary of the 7 February Association of Banana Plantation Workers for the fruit company Compañía Frutas Selectas SA (FRUTSESA), Mr Luis Ochoa, the Government states that the Ministry of Labour has requested information from the Attorney General’s Office on whether such complaints have been made, as well as on the status of the investigative process.
4. 205. As to the anti-union effects of the three ministerial agreements issued by the Ministry of Labour between April 2017 and May 2018 (No. MDT-2017-0029 governing labour relations specifically in the agriculture, livestock and agro-industrial sector; No. MDT-2018-0096 establishing a special employment contract for part-time activities in the agriculture sector; and No. MDT-2018-0074 establishing a special employment contract for part-time activities in the banana sector), the Government states that, within the framework of the ongoing dialogue between workers and employers, held within the National Labour and Wage Council, an amendment will be proposed to those agreements in order to comply with the Committee’s recommendation and to strengthen and adapt those provisions to the needs of the workers.
5. 206. With regard to ASTAC’s allegations of obstructions to unionization in the banana sector, the Government states that there are 30 trade unions of banana company workers in the country, which disproved the complainant’s allegation that unionization in the sector was not possible in Ecuador.
6. 207. In its communication of 30 April 2020, with regard to the registration of the leadership of the union of company 2 and the allegation from ASTAC that this delay was due to the interest in providing proof of non-compliance with the organization’s statutes by not electing new leaders, the Government reports that, after the complaints had complied with the Ministry’s observations, the organization’s leadership was registered for a period of two years, from 18 July 2018 until 18 July 2020.
7. 208. In response to ASTAC’s allegation that the Ministry had not demonstrated a willingness to hold dialogue with its representatives, the Government states that, via the Ministry of Labour, it has committed to provide the appropriate and legal attention to petitioners, as long as they comply with the requirements and procedures legally established in the various existing bodies of standards. The Government states that Mr Jorge Washington Acosta Orellana has not submitted any other application for the granting of legal status for ASTAC, nor has he requested to meet with the Ministry, noting furthermore that the aforementioned Undersecretary of Labour left the post in January 2019, but that neither the previous nor the current administration had received any meeting request. The Government adds that, since one is required, Ministry officials will await such a request, as it does with all the other meeting requests it receives every day from labour and social organizations around the country.
8. 209. With regard to ASTAC’s questioning of the current contractual arrangements in the banana sector, the Government states that the Ministry of Labour, having noted the informal manner of labour relations in the banana sector resulting from the lack of a contractual arrangement that could adapt to the needs and realities of that work, drew up a contractual arrangement that would respond to the cyclical requirements of banana production.
9. 210. With regard to the allegations of reprisals against two workers reported by ASTAC, the Government states that the Ministry of Labour will carry out inspections to guarantee compliance with the workers’ rights and will request information from both company 3, in order to obtain a response to the arguments submitted by the complainants, and from company 4, with regard to the aforementioned contractual relationship, considering that the provision of services is a legally established form of contract governed by the Civil Code, and that information will be communicated to the Office as soon as possible.
10. 211. In its communication of 30 August 2023, the Government states the following: (i) on 17 June 2021, the Ministry of Labour and the State Attorney General’s Office filed an extraordinary protection order (No. 1760-21-EP), which is still being reviewed by the Constitutional Court of Ecuador, against the 25 May 2021 ruling that had instructed the Ministry of Labour to register ASTAC as a branch-level union and that would regulate the registration of trade unions by branch of activity; (ii) on 10 January 2022, in compliance with the ruling issued on 25 May 2021, the Deputy Minister of Labour and Employment, by means of official letter No. MDT-VTE-2022-0035-O, registered the nomination of 31 founding members of ASTAC and, by means of ministerial agreement No. MDT-2022-001 of 11 January 2022, approved its statute and granted it legal status; and iii) by means of official letter No. MDT-VTE-2022-0948-O of 17 November 2022, the Deputy Minister of Labour and Employment denied the registration of the ASTAC leadership because persons outside the organization had participated in the election process.
11. 212. In its communications of 10 January and 15 April 2024, the Government reports that, by means of official letter No. MDT-VTE-2023-1017-O of 18 December 2023, the Deputy Minister of Labour and Employment informed the representative of ASTAC that the Executive Board of ASTAC had been registered for a period of two years, from 18 November 2023 until 18 November 2025.

D. The Committee’s conclusions

1. 213. The Committee recalls that, in this case, the complainants denounceallege, firstly, that the Government is obstructing the registration of a trade union of banana plantation workers comprising workers from various companies in the sector and, secondly, anti-union action to prevent the setting up of company unions in that sector.
2. 214. The Committee recalls that, in its previous examinations of the case, it had requested the Government to take the necessary measure to ensure the registration of ASTAC as a trade union. The Committee notes that both ASTAC and the Government report that: (i) in a ruling dated 25 May 2021, the Tribunal of the Criminal Chamber of the Pichincha Provincial Court of Justice instructed the Ministry of Labour to register ASTAC as a trade union, to regulate the exercise of the right to freedom of association by branch of activity, and to refrain from restricting or limiting the rights relating to freedom of association of other organizations applying for registration by branch of activity; (ii) as a result of this, the Ministry proceeded to register ASTAC on 11 January 2022; (iii) however, the Government stated that this ruling would not lead to the registration of other branch-level unions or to a legislative change; and (iv) the Ministry of Labour contested that ruling before the Constitutional Court. The Committee also notes that ASTAC maintains that the lack of standards that recognize industry trade unions represents a continued violation of the right to freedom of association and weakens its capacity for action in a practical sense, as it seriously inhibits is ability to negotiate improvements in working conditions in the banana sector.
3. 215. The Committee notes with interest the registration of ASTAC as a trade union as a result of the ruling handed down by the Pichincha Provincial Court. At the same time, the Committee regrets to observe that the country’s legislation still does not permit the establishment of primary-level trade unions composed of workers from different enterprises and that the Ministry of Labour contested the aforementioned ruling before the Constitutional Court. In this regard, the Committee once again recalls that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 502] and that workers should be free to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industrial or craft union [see Compilation, para. 504]. The Committee also recalls that, in its previous examinations of the case, it had observed with concern that many agricultural workers in Ecuador not only found it impossible to set up company unions owing to the minimum membership requirement, which conflictsis conflicting with the structure of a sector where most production units are small, but that they were also seeing their efforts to overcome that obstacle by grouping together in sectoral organizations being frustrated. In view of the above, the Committee trusts that the process of contesting the legal decision that ordered the registration of ASTAC will be resolved as soon as possible in accordance with the criteria expressed above. The Committee requests the Government to keep it informed of the corresponding Constitutional Court decision. Recalling that it had referred the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations (CEACR), the Committee also trustsurges that national legislation will recognize as soon as possible the right of workers to establish primary-level trade unions composed of workers from different enterprises.
4. 216. The Committee also notes that ASTAC alleges that the registration application for its leadership submitted on 28 October 2022 was denied by the Ministry of Labour in violation of the freedom of association. In this regard, the Committee notes that the Government reports that the registration of the ASTAC leadership, initially denied due to the participation of persons outside the organization in the election process, was finally authorized on 18 November 2023 for a period of two years. Taking into account that the leadership of ASTAC was registered, the Committee will not pursue the examination of this aspect of the case.
5. 217. In addition, the Committee notes ASTAC’s allegation that the Ministry of Labour denied the request to register the trade union of company 1. The Committee observes that the Government has not sent its observations about this allegation but that, at the same time, the complainant has not provided details about it. The Committee therefore requests both the Government and the complainant to provide information about the alleged refusal to register the trade union of company 1.
6. 218. With regard to the allegations of blacklisting and the commission of anti-union acts, including allegations of numerous anti-union dismissals in various companies in the sector about which the Committee had requested the Government to conduct inquiries, the Committee notes that the Government states that: (i) the Ministry of Labour guarantees the right to freedom of association by means of labour inspections, addressing complaints from workers who claim to have been victims of anti-union acts and the application of sanctions; and (ii) the Standard for the Eradication of Labour Discrimination provides for the imposition of fines from 3 to 20 times the statutory minimum wage for acts of discrimination, such as blacklisting. The Committee nonetheless observes that the Government has not provided specific information about the investigations carried out or inspections specifically aiming to shed light on the aforementioned allegations. In this regard, the Committee recalls that all practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [see Compilation, para. 1121].
7. 219. In addition, the Committee notes the new allegations communicated by the complainant about reprisals against its members in two companies in the sector. In this regard, the Committee notes that the Government reports that the Ministry of Labour will carry out inspections to guarantee compliance with the aforementioned workers’ rights and will request information from the respective companies about these allegations, which will be communicated to the Office as soon as possible. In light of the above, the Committee requests the Government to provide specific information without delay about the actions taken to shed light on the various allegations of blacklisting and other anti-union acts made in the context of this case. Also recalling that ASTAC had filed legal action and criminal complaints on 8 November 2017, and 8 November and 28 March 2018 in relation to several of the aforementioned allegations, the Committee requests the Government to provide information about the resolution of these. Lastly, in light of its previous recommendations and taking note of the Government’s stated readiness in this regard, the Committee once again urges the Government and the complainants to meet with the complainants in order to help resolve the allegations of anti-union discrimination in the banana sector outlined in this case.
8. 220. With regard to the allegations of death threats and intimidation that led to the filing of criminal complaints by Mr Luis Ochoa, general secretary of the 7 February Association of Banana Plantation Workers and Mr Jorge Washington Acosta Orellana, ASTAC’s general coordinator, the Committee notes that the Government merely indicates that it has requested information from the Attorney General’s Office on whether such complaints have been made, as well as on the status of the investigative process. Recalling that the exercise of trade union rights is incompatible with violence or threats of any kind and it is for the authorities to investigate without delay and, if necessary, penalize any act of this kind [see Compilation, para. 88], the Committee once again urges the Government to communicate without delay specific information about the actions taken by the competent authorities to shed light on the alleged death threats made against Mr Luis Ochoa and Mr Jorge Washington Acosta Orellana and to keep it informed on the situation of the criminal complaints filed in this regard.
9. 221. Lastly, as to the alleged anti-union effects of the three ministerial agreements issued by the Ministry of Labour (Nos MDT-2017-0029, MDT-2018-0096 and MDT-2018-0074) relating to contractual arrangements applicable to workers in the banana sector, the Committee recalls that, in its previous examination of the case, it had invited the Government to examine, together with the organizations of employers and workers concerned, the impact of the reforms on the exercise of freedom of association. The Committee notes that: (i) in a 2020 communication, the Government indicated that, within the framework of the ongoing dialogue between workers and employers, held within the National Labour and Wage Council, an amendment would be proposed to the aforementioned ministerial agreements in order to comply with the Committee’s recommendation and to strengthen and adapt those provisions to the needs of the workers; and (ii) it has not received any subsequent information from the Government on the matter. On the basis of the foregoing, the Committee requests the Government to examine, together with the organizations of employers and workers concerned, the impact of ministerial agreements Nos MDT-2017-0029, MDT-2018-0096 and MDT-2018-0074 on the exercise of trade union activity.