Rapport définitif - Rapport No. 30, 1960

1. 85. On 16 June 1958 the World Federation of Trade Unions addressed to the Director-General of the I.L.O a communication containing allegations relating to a putative infringement of freedom of association by the Government of Ecuador.
2. 86. By a letter dated 1 July 1958, the Director-General informed the complaining organisation, in accordance with the procedure, of its right to furnish further information in substantiation of its complaint within a period of one month. The complaining organisation has not availed itself of this right.
3. 87. Having received a copy of the complaint by letter of 1 July 1958, the Government of Ecuador presented its observations on the matter in a communication dated 25 September 1958.

A. A. The complainants' allegations

1. 88. In a complaint dated 16 June 1958 the World Federation of Trade Unions alleges that the unions of various departments of the Municipal Council of Guayaquil had submitted a series of demands which the Council refused to accept, whereupon the municipal employees declared a strike in the middle of January 1958. As a result of the dispute the Subdirector of Labour of Guayaquil handed down an award which was said to concede the majority of the workers' claims. The complainants allege, however, that the award contains a serious attack on the right to strike, in that it includes a clause stating " that the workers in question may not avail themselves of the right to strike on account of the Constitutional principle laid down in the second paragraph of clause (i) of article 185 of the Political Constitution ". On the basis of this clause, they argue, the right to strike could be denied to all the public service workers in the country. According to the complainants this Constitutional clause guarantees the right to strike by providing, to quote their words, that " the right of public service workers to strike shall be covered by special rules ". Such rules not yet having been issued, it is alleged that the right to strike is not limited by any restrictive conditions.
2. 89. In the same letter it is alleged that the Mayor of Guayaquil informed the press on 17 March 1958 that he would not act on those parts of the award by the Subdirector of Labour that went in favour of the workers, and that the Municipal Council had resolved to dismiss the 2,000 workers who had taken part in the strike. As a result the municipal employees found themselves obliged to come out on strike again.
3. 90. The letter ends by saying that the principles customarily accepted by the I.L.O in regard to freedom of association have been violated, especially as regards the right to strike, which may not be restricted by resorting to wrongful dismissals. It is further contended that to deny municipal workers the right to strike when no rules exist on the subject constitutes an infringement of trade union rights.
4. 91. The Government replied to the complaint in a memorandum of 25 September 1958, enclosing a long appendix consisting of a newspaper clipping reporting a statement by the Minister of Social Security and Labour on the sequence of events. In the documentation furnished by the Government, it is stated that, following the filing of a statement of demands by the municipal employees of Guayaquil, various agreements came to be signed in February 1957. However, the agreed stipulations were never carried into effect as various changes occurred in the mayoralty, which finally resolved to dismiss 59 workers. A new statement of demands was presented as a result, and the Ministry of Labour undertook a series of conciliation measures that proved unsuccessful. Under these circumstances the workers decided to have recourse to strike action and notified the Conciliation and Arbitration Tribunal which had intervened in the dispute. After a series of judicial proceedings the case was referred to the Subdirector of Labour for the Coastal Region, who gave an award in second instance ; this award was not observed by the Municipality, which refused to reinstate the workers who had taken part in the strike, " the dismissal thus being clearly shown to be contrary to the stipulations of the award ". The parties thereupon applied to the Tribunal, which granted a writ of execution of the award, and the Ecuadorian Confederation of Labour moved the Council of State to intervene, in order to oblige the Municipality to give effect to the award. The Government maintains that the dispute was legally terminated by the award handed down on appeal by the Subdirector of Labour for the Coastal Region, in which he ordered an immediate resumption of work by the strikers and payment of wages by the Municipality for the strike period.
5. 92. To sum up, the salient facts of this case are as follows : non-performance by the Municipality of an agreement entered into with the public service employees ; dismissal of certain employees ; declaration of a strike ; mediation by the Ministry of Social Security and Labour and intervention of the Conciliation and Arbitration Tribunal and the Subdirector of Labour for the Coastal Region, who issued an award on the appeal ; non-compliance with the award by the Municipality ; further mass dismissals ; resumption of the strike, and intervention of the Tribunal and the Council of State to secure the enforcement of the award.
   • Allegations relating to the Prohibition of Strikes in Public Services
6. 93. The Committee observes that complaint is made, in the first place, of the clause in the award which lays down that the workers involved in the dispute, being employed in public services, do not have the right to resort to strikes, pursuant to the principle enunciated in paragraph 2 of article 185 (i) of the Political Constitution.
7. 94. The Committee has, on many occasions, expressed the view that the right of workers and their organisations to strike as a legitimate means of defence of their occupational interests is generally recognised. This general principle, however, as the Committee has observed in several earlier cases, may be restricted both in what are deemed to be essential services and in the civil service. The Committee has stressed the importance it attaches in such cases to the existence of machinery for the peaceful settlement of such disputes, in order that the workers thus deprived of so essential a means of defending occupational interests as legal strike action may be assured of adequate safeguards. The Committee has also held that although a strike may be temporarily restricted by law until existing facilities for negotiation, conciliation and arbitration can be brought to bear, such limitation or counteraction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and that " where the law places restrictions on the exercise of the right to strike, appropriate guarantees should be afforded to the workers concerned in the form of adequate procedures for the peaceful settlement of disputes ".
8. 95. The Committee, while considering that it is not competent to interpret a Constitutional provision, observes that in the present case the problem depends on the application of article 185 (i) of the Political Constitution of Ecuador. This article lays down in fine that " employees of public works and institutions of public service may not go on strike, except in accordance with special rules ". These rules have not yet been promulgated. It was on these premises that the Subdirector of Labour decided that workers in public services could not have recourse to strike.
9. 96. The complainants, on the other hand, affirm that, according to the Constitution, " the right of public service workers to strike shall be covered by special rules ". As these rules have not been promulgated, they consider that the right to strike is entirely unrestricted.
10. 97. The situation is, therefore, that there is a difference of opinion as to the legal effect of the fact that the regulations provided for in the Constitution have not been issued, but that, in this instance, the workers involved in the dispute, whose right to strike was denied by the authorities, did in fact enjoy appropriate guarantees in the sense that they were able to have recourse to conciliation and arbitration machinery which recognised the justification, for the greater part, of the workers' demands.
11. 98. In these circumstances the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
    • Allegations relating to Dismissals for the Purpose of Restricting the Right to Strike
12. 99. The complainants also criticise the decision of the Municipality to dismiss the 2,000 employees involved in the strike. The complainants consider that these were abusive dismissals, with the intention of restricting the exercise of the right to strike. The Government states that, by refusing to reinstate the workers who took part in this action, the Municipality has acted in a manner " clearly contrary to the stipulations of the award " of the Subdirector of Labour.

100. The Committee notes that application has been made to the Conciliation and Arbitration Tribunal and to the Council of State, in order to secure implementation of the award of the Subdirector of Labour. In these circumstances the Committee considers that the question before it relates to the execution of a judgment within the country concerned and in consequence recommends the Governing Body to decide that the matter is inappropriate for action on its part.