Background
Sectoral unions bring together workers from multiple worksites. In 2014, ASTAC embarked on a lengthy process for legal recognition of their sectoral union of banana workers to organize some of the most historically oppressed workers in a globally significant, yet incredibly dispersed industry.
Freedom of association is guaranteed by Articles 326 and 426 of the National Constitution of Ecuador, which explicitly recognize the right to form unions and obligate Ecuador to uphold the rights enshrined in international human rights instruments. The Labor Code governs the process of unionization for most workers in Ecuador, requiring a union to register with the Ministry of Labor to receive official recognition and collective bargaining capacity.
In response to the Ministry of Labor’s refusal to register it in its rejection of sectoral unions, in 2015, ASTAC submitted a complaint to the International Labor Organization (ILO), alleging a violation of the Freedom of Association and Protection of the Right to Organise Convention (No. 87) and the Right to Organise and Collective Bargaining Convention (No. 98). In subsequent years, the ILO’s Committee on Freedom of Association has observed that the right to form unions includes the freedom to determine their structure and has thus requested that Ecuador recognize sectoral unions.
In January 2022, the Pichincha Provincial Court of Justice ordered the Ministry of Labor to register ASTAC and other sectoral unions. The Ministry of Labor then filed an Extraordinary Protection Action before the Constitutional Court, appealing the decision. With ABA CHR’s pro bono technical legal support, ASTAC intervened to defend its legal personhood and, with it, freedom of association across Ecuador before the Constitutional Court of Ecuador.
Ecuador’s Labor Activists Push for Sectoral Unions as a Pillar of Freedom of Association
ASTAC and 7 amici curiae argued that the Ministry of Labor’s refusal to recognize sectoral unions violates fundamental constitutional and international protections of freedom of association.
Advocates explained that without sectoral unions, workers in Ecuador are unable to unionize, given the legal regime, thus impinging on freedom of association. Most banana firms in Ecuador employ far fewer than 30 workers, the minimum required by the Labor Code to form a union. Thus, to form a union in the first place, workers naturally need to join forces. Additionally, multiple advocates described how heavy-handed anti-union campaigns undermine organization efforts at small firms. Sectoral unions would help level the playing field for these workers. This extends to the international market. Franziska Humbert of Oxfam Germany explained how ASTAC’s leverage as a sectoral union has helped secure fair prices in negotiations with German banana buyers.
Advocates also pointed to how the Ministry of Labor’s failure to regulate sectoral unions, pursuant to the lower court’s order, has led to a situation where the few sectoral unions that have been recognized do not have necessary guidance nor leverage to organize workers. For example, ASTAC General Coordinator Jorge Acosta explained how a subsidiary of Dole rejected the leave request of a member to attend an international workers conference as a delegate. Even though Article 42 of the Labor Code obligates employers to permit workers to miss work to perform union related duties, the company interpreted the law as not applying to members of sectoral unions.
Representatives from international organizations echoed arguments that the denial of recognition of sectoral unions is an impermissible restriction on freedom of association as understood by well-established principles of international law. For example, Mery Laura Perdomo from ILAW cited several international cases to explain how this restriction is impermissible because it was not provided for in the law and is neither proportional nor necessary.
The Government Uses an Inferential Reading of the Labor Code to Oppose Sectoral Unions
The Ministry of Labor, Office of the Presidency, and Attorney General argued that in requiring that “leadership boards of workers' associations . . . be composed solely of employees of the company to which they belong,” Article 449 of the Labor Code excludes sectoral unions because they claim it would be unlikely that union leaders would work for multiple employers.
However, there is no explicit prohibition of sectoral unions in the Labor Code and there is a more direct interpretation of Article 449. Kevin Rosero, a delegate from the National Assembly, explained that the purpose of this language was not to exclude sectoral unions, but to safeguard workers’ interests in advancing labor conditions by ensuring that boards are composed of actual workers.
The Ministry of Labor also argued that its definition of “primary” level unions under Ministerial Agreement 012 excludes sectoral unions. At this point, it is critical to note that the Ministry of Labor itself created this definition in its own regulation. Thus, its reliance on this argument was confounding and resulted in some confusion during the hearing. Judge Andrade Quevedo requested clarification on this from CIDDT lawyer Angie Toapanta Ventura who refocused the conversation on Article 449 and aptly pointed out that the right to determine the structure of unions belongs to the union — “Not to the Ministry of Labor. Not to the Labor Code. Not to a regulation.”
Finally, the Ministry of Labor argued that by referring to a single company, Article 459 of the Labor Code precludes sectoral unions from forming a “workers’ committee” [comité de empresa] preventing them from collectively bargaining. A “workers’ committee” is a body formed after union recognition that has the power to collectively bargain. This inferential reading of Article 459, however, does not hold weight, and, if anything, demonstrates the need for specific regulation. Further, a “workers committee” is not necessary to collectively bargain. Under Article 221 of the Labor Code, in the absence of a “workers’ committee,” the union with the most affiliated workers has the power to collectively bargain so long as it represents over 50% of workers.
In his closing remarks, Jorge Acosta of ASTAC, urged the judge: “No hay que buscar la quinta pata de gato,” literally meaning, “don’t go looking for the cat’s fifth leg.” Freedom of association is a fundamental, internationally recognized right that empowers unions to determine their own structure to form sectoral unions. It's that simple.
What’s Next?
Above all, the hearing (broadcasted on YouTube) demonstrated the firm recognition of international rights in Ecuador. The parties and representatives before the court agreed that ILO Conventions 87 and 98 are included in Ecuador’s constitutional obligations and should be respected.
Last Monday, the ILO released its most recent CEACR report in which it again requests that the government of Ecuador implement measures to “ensure full recognition, in law and practice, of the right of workers from several enterprises to establish first-level trade union organizations.”
We trust that the Constitutional Court will accordingly honor Ecuador’s international obligations to uphold freedom of association and not only extend recognition to sectoral unions like ASTAC, but order the Ministry of Labor to develop regulations that would effectuate such recognition. Sectoral unions in Ecuador must be able to meaningfully engage in collective bargaining to negotiate for the improved labor conditions that workers in the banana sector have been fighting for.
