Rapport définitif - Rapport No. 278, Juin 1991

1. 36. The World Confederation of Organizations of the Teaching Profession (WCOTP) presented a complaint in a communication dated 13 November 1990. The Government sent its observations on the allegations in a communication dated 11 April 1991.
2. 37. 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 complainant's allegations

1. 38. In a communication dated 13 November 1990 the WCOTP presents a complaint on behalf of the National Union of Educators (UNE). It states that in view of the deterioration of the working conditions of teachers in Ecuador and in order to obtain recognition of the legitimacy of its demands, the UNE called upon its members to hold several work stoppages in recent months. In retaliation against these work stoppages the Government adopted Decree No. 211 ending the check-off of trade union dues of UNE members.
2. 39. The WCOTP points out that in a country where there are enormous difficulties involved in the direct collection of membership contributions, the sole aim of the measure adopted by the Government is to put a financial stranglehold on the UNE.

B. The Government's reply

1. 40. In its detailed communication dated 11 April 1991 the Government observes that the complaint presented by the WCOTP is general and vague, and based on subjective assertions. It refers to the allegation regarding the adoption of "Decree No. 211" and explains that, under the Constitution, only the President of the Republic may issue administrative orders and those made in exercise of executive powers in the form of decrees, while the ministers who are state secretaries carry out affairs of State by means of agreements or resolutions. This latter is the case of Ministerial Agreement No. 211 of 15 January 1990, issued by the Minister of Education and Culture, which makes provision for union dues' deductions from teachers' salaries. The Government points out that the complaint deliberately confuses legal instruments of different rank and is based on a non-existent legal instrument referred to as "Decree No. 211".
2. 41. The Government states that under the laws in force in the country teachers are public servants, whose relations with the State are regulated by the Act respecting the teaching career and the classification scale of national teaching staff. Section 5(d) of this Act guarantees teachers freedom of association for the purpose of defending their occupational interests, and in the exercise of this right teachers have set up various class organisations, including the UNE, an organisation under private law with legal personality, governed by the Civil Code. Private employees and employers and certain categories of state employees are covered by the Labour Code, title V of which lays down the principle of trade union pluralism, which is also enshrined in the Constitution.
3. 42. The Government points out that Ministerial Agreement No. 211 was enacted in circumstances in which other teachers' organisations have been set up in various provinces in the country, while in others parallel branches of the UNE have been created, claiming to represent the interests of the teachers who are members of them. In these circumstances, the UNE - whose statutes provide in section 1 for the automatic affiliation of all secular teachers at the time when they take up their duties - has come into conflict with those teachers who, exercising their right to freedom of association, have set up other organisations of educators and demand that their compulsory contribution to the UNE be withdrawn in order to be paid to the organisations to which they have freely chosen to belong.
4. 43. The Government states further that in this situation the Ministry of Education has maintained a respectful and independent attitude towards these legal entities under private law and their conflicts of interest, and therefore decided, by means of Ministerial Agreement No. 211, to suspend the check-off system which had been made in favour of the UNE without any legal obligation whatsoever. The Government points out that this Ministerial Agreement recognises that the obligation to collect contributions lies with the occupational organisations themselves, while at the same time every teacher is guaranteed the right to contribute to the occupational organisation of his or her choosing and each organisation is allowed to collect dues through direct contact with its members.
5. 44. The Government further points out that in order to guarantee respect of freedom of association, and after an exchange of views with leaders of teachers' organisations, the education authorities issued Ministerial Agreement No. 1004 of 14 May 1991 authorising provincial educational directorates to deduct UNE contributions from teachers' salaries at the express, individual and written request of teachers affiliated to the provincial branches of this organisation, thus striking a balance between the UNE's aspirations and demands, and the respect of teachers' rights. This Ministerial Agreement also clearly sets out the machinery for the collection of UNE dues and, in the event of disagreement between the provincial branches of this organisation, for suspension of such collection until the teachers of the area in question settle any such disagreements.
6. 45. Lastly, the Government observes in its communication that the administrative decisions adopted by the Ministry of Education do not involve any infringement whatsoever of freedom of association or of the right to form trade unions. The measures adopted by the executive power are aimed at effectively guaranteeing the rights of State-employed teachers to affiliate and therefore to pay membership dues to the occupational organisation of their choice.

C. The Committee's conclusions

1. 46. The Committee observes that the allegations presented by the complainant refer to the enactment by the Government of an administrative agreement (No. 211) ending the check-off of trade union membership dues of members of the UNE, allegedly in retaliation against work stoppages held by teachers.
2. 47. The Committee notes the detailed information provided by the Government. The Committee observes in particular that by adopting Ministerial Agreement No. 1004 the Government has restored the possibility for the UNE to receive union dues directly from its members on condition that the teachers expressly request this. The Committee considers that this Ministerial Agreement also conforms to the principles of freedom of association in this respect and that therefore the case does not call for further examination.