VIII. SPECIFIC RECOMMENDATIONS

Human Rights Watch makes the following specific recommendations to suggest concrete steps to remedy Ecuador's violations of its international legal obligations and to address the conduct of banana-exporting corporations and their local banana suppliers that allows them to benefit from these violations.

To the Government of Ecuador: Preventing the Worst Forms of Child Labor

Legal and labor reforms

Finding: Despite the Worst Forms of Child Labour Convention requirement that countries define, in consultation with employers' and workers' organizations, and prohibit work "likely to harm the health, safety or morals of children," the Labor Code fails to prohibit explicitly the performance of certain tasks and work under conditions hazardous to children. Only if very broadly construed could the effective enforcement of existing Ecuadorian law governing child labor prevent children from working in all conditions and performing all tasks that constitute the worst forms of child labor.

Recommendation: Although the Labor Code prohibits children from work that can be harmful to "physical, mental, spiritual, moral, or social development" and bans children from "handling psychotropic or toxic objects or substances" or performing tasks considered "dangerous or unhealthy," Congress should amend the law, as an interim step to achieving full compliance with the Worst Forms of Child Labour Convention, to explicitly prohibit all individuals under the age of eighteen from using dangerous tools, from handling pesticides and pesticide-treated products, and from being exposed to pesticides in the workplace through third-party application or aerial fumigation.

Recommendation: The Ministry of Labor in coordination with the Ministry of Agriculture should ensure that restricted-entry intervals (REIs)-the time after pesticide application when entry into the treated area is banned or limited-are clearly established in government regulations and vigorously enforced and, as a preliminary step to achieving compliance with the Worst Forms of Child Labour Convention, include special REIs for children, taking into consideration the greater risks they face from exposure to toxic chemicals.

Recommendation: Following the suggestion of the Worst Forms of Child Labour Recommendation that special attention be given to girls and recognizing that sexual harassment is a form of sex discrimination, Congress should amend the Ecuadorian Labor Code to prohibit sexual harassment in the workplace. It should define sexual harassment in accordance with the definition adopted by the United Nation's Committee on the Elimination of All Forms of Discrimination against Women and establish separate and more stringent penalties for cases in which the victim of sexual harassment is a minor.

Enforcement

Finding: The Ministry of Labor fails to enforce effectively laws governing the human rights of child workers, including the minimum age and maximum hours for child workers, limits on tasks children may perform, school completion requirements, health and safety conditions for children in the workplace, and access at work to potable water and sanitation facilities.

Recommendation: The Labor Inspectorate of the Ministry of Labor should fulfill its responsibility to enforce all Labor Code provisions governing and relevant to child labor. As a first step to achieving effective enforcement, Ecuador should uphold its obligations under article 10 of the ILO Labour Inspection Convention, which states, "The number of labour inspectors shall be sufficient to secure the effective discharge of the duties of the inspectorate." As a state party to the convention, Ecuador should allocate additional resources to the Labor Inspectorate to provide for a sufficient number of inspectors to guarantee effective implementation of child labor laws through proactive monitoring and unannounced on-site inspections rather than reliance on a complaint-driven enforcement strategy.

Recommendation: As a preliminary step towards fulfilling Ecuador's ILO Labour Inspection Convention obligations, the Ministry of Labor should, as required by Ecuadorian law, designate one or more labor inspectors for minors in each province. In accordance with article 7(3) of the convention, which provides that "[l]abour inspectors shall be adequately trained for the performance of their duties," the government should ensure that these inspectors receive sufficient funding and other resources and specialized training to enforce child labor laws.

Recommendation: The Labor Inspectorate should ensure that, as an interim step to achieving full compliance with the Worst Forms of Child Labour Convention, all workers, including children, receive full information and training from their employers about occupational illnesses and injuries related to work on banana plantations, including those associated with exposure to pesticides. The Labor Inspectorate should guarantee that trainings are conducted regularly and in a manner understandable to children, in compliance with Ecuadorian law that requires that employers not only provide workers with appropriate protective equipment but train them on the correct means of protecting themselves from workplace hazards and ensure that "labor conditions . . . do not present a danger to [workers'] health or life."

Recommendation: As required by the Worst Forms of Child Labour Convention, Ecuador should "design and implement programmes of action to eliminate as a priority the worst forms of child labour . . . in consultation with relevant government institutions and employers' and workers' organizations." In particular, the National Council for Children and Adolescents, the National Directorate for Protection of Minors, juvenile courts, and the Ministry of Labor, along with the National Committee for the Progressive Elimination of Child Labor, in coordination with community-based workers' and employers' organizations, should take concrete steps to give effect to the general regulation for implementation of the Minors' Code that recommends the establishment of programs "for protection, defense, and promotion of the rights of child workers . . . in the rural sector." Such programs could include labor rights education for children and their parents in rural areas, development of legislative reform proposals that address the problem of child labor in the rural sector, and coordination with the International Programme on the Elimination of Child Labour (IPEC) to develop programs for rural child workers.

Finding: The Ministry of Labor fails to keep data on the number of child laborers in Ecuador's banana sector. Although the National Institute of Statistics and Census (INEC) signed an agreement with the ILO's Statistical Information and Monitoring Programme on Child Labour (SIMPOC) in June 2001 to implement a national child labor survey, which began in August 2001, this survey will not disaggregate data by occupation. Without reliable statistics defining the scope and scale of child labor in the banana sector, it will be difficult for the government or other institutions to design programs and allocate sufficient resources to address the problem.

Recommendation: In accordance with the proposal in the ILO Recommendation concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labour that countries keep "detailed information and statistical data on the nature and extent of child labour" and "[a]s far as possible, . . . include data disaggregated by sex [and] occupation," the Ministry of Labor, in cooperation with INEC and SIMPOC, should undertake a comprehensive survey to determine the scope and scale of child labor in the banana sector, disaggregate the data by sex, and update the data regularly.

Finding: Pesticides potentially harmful to children are used on banana plantations that supply exporting corporations, and, in some cases, those corporations have approved application of those pesticides. Human Rights Watch believes that when child workers laboring on these plantations experience serious adverse health effects from pesticide exposure, the corporations and local suppliers are complicit in the violation of those children's right to health. When the illnesses suffered are caused by corporate-sanctioned pesticides, Human Rights Watch considers the corporations' complicity in the violation of children's rights is heightened.

Recommendation: As a preliminary measure to ensure that child workers are not exposed to hazardous substances, independent local plantation owners and banana-exporting corporations, in coordination with the Ministry of Agriculture, should conduct a joint survey of the health impact on children of exposure to the pesticides used on banana plantations, with a particular focus on corporate-sanctioned pesticides.

Recommendation: As an interim step to achieving full compliance with the Worst Forms of Child Labour Convention, the Ministry of Labor should guarantee that child banana workers whose health is damaged by pesticide exposure have access to free health care. To these ends, the Ministry of Labor should actively enforce Labor Code articles 359 and 371 that require employers to ensure free medical treatment for their workers, not covered by social security, who suffer workplaces accidents and illnesses.



To the Government of Ecuador: Protecting the Right to Freedom of Association

Finding: The ILO's Committee of Experts on the Application of Conventions and Recommendations has stated that the best solution for anti-union dismissal is generally the reinstatement of the affected worker with payment of lost wages; where reinstatement is impossible, compensation for anti-union dismissal should be higher than that prescribed for other kinds of dismissal. In Ecuador, an employer who fires a worker for engaging in union activity is not required to reinstate the wronged worker and, in most cases, is only subject to a small fine if the labor law violation is confirmed and a sanction imposed. The fine is usually no greater than the amount owed by an employer for dismissing a worker for any cause not recognized by the Labor Code as an acceptable reason for dismissal.

Recommendation: Congress should amend the Labor Code to require the reinstatement of permanent workers fired for engaging in union activity and payment of wages lost during the period when the workers were wrongfully dismissed. Where reinstatement is impossible, compensation for dismissal should be substantially higher than for other illegal terminations.

Recommendation: Congress should amend the Labor Code to provide explicitly that temporary workers or workers with project contracts who are fired for exercising the right to freedom of association have the right to reinstatement until the conclusion of their short-term contracts and to payment of any lost wages incurred during the period of wrongful dismissal. Where reinstatement is impossible, workers should receive meaningful compensation for the anti-union dismissal.

Finding: Inadequate government enforcement of the Labor Code combined with its ambiguity thwarts the law's intent to cap temporary employment contracts, negotiated to satisfy an "increase in demand for production or services," at 180 consecutive days. Weak Labor Code enforcement also frustrates the law's requirement that all project contracts for the performance of regular workplace activities last, at a minimum, for one year. Employers, both companies and subcontractors, often hire workers informally to labor on the same plantations or in the same work teams for many months or years on end, using consecutive temporary contracts or project contracts to create a precarious and vulnerable "permanent temporary" workforce. These workers enjoy no job stability and lack effective protection against anti-union discrimination.

Recommendation: The requirement that a temporary contract only be negotiated to satisfy exigent circumstances, such as the temporary absence of personnel, or to meet an "increase in demand for production or services" should be strictly enforced by the Labor Inspectorate, and the burden of proof should be placed on the employer to demonstrate, in each case, the existence of such circumstances. "An increase in demand for production or services" should be narrowly construed and defined to require a meaningful increase. In particular, an employer should be explicitly prohibited from asserting the existence of such an increase for more than 180 consecutive days.



Recommendation: To make the letter of the law conform with its spirit, Congress should amend the Labor Code to prohibit not only the use of temporary contracts with durations of over 180 consecutive days but also the use of consecutive, short-term temporary contracts adding up to more than 180 consecutive days to satisfy employers' demand increases. To these ends, as these short-term contracts are often executed for less than full five-day work weeks and may not require performance of the same tasks each day or each week, contracts for "180 consecutive days" should be understood as employment for the performance of any task, for any number of days per week, for roughly half a year-twenty-six consecutive weeks.

Recommendation: The requirement that all project contracts for the performance of regular workplace activities, such as the everyday tasks of banana workers in packing plants and banana fields, last, at a minimum, for one year should be vigorously enforced by the Labor Inspectorate.

Recommendation: In the few cases in which collective bargaining agreements have been negotiated on banana plantations, the Labor Inspectorate should ensure that the terms and conditions of the agreements are applicable to all workers, temporary and permanent, regardless of whether they are affiliated with the workers' organizations party to the agreements, as required by Labor Code article 224 and a Supreme Court of Justice resolution that establish that a collective agreement protects all workers in a workplace.

Finding: The Constitution provides that when workers are hired by a subcontractor, the "person for whose benefit work is realized" is jointly responsible for compliance with labor law obligations. Nevertheless, workers employed by a subcontractor are not permitted to organize and collectively bargain with the "person for whose benefit work is realized," who often controls the workers' salaries, benefits, and health and safety conditions. Instead, the subcontracted workers can only legally organize and negotiate collectively with their subcontractors. As recognized by the ILO Convention concerning the Right to Organise and Collective Bargaining, however, collective bargaining should occur "with a view to the regulation of terms and conditions of employment."

Recommendation: Congress should amend the Labor Code to allow subcontracted workers to organize and bargain collectively with the person or company for whose benefit work is realized if that person or company, in practice, has the economic power to dictate, directly or indirectly, the workers' terms and conditions of employment.

Finding: In 1991, the Ecuadorian Labor Code was amended to raise the minimum number of workers required for the formation of a workers' organization from fifteen to thirty. This high thirty-worker mandatory minimum enables employers to attain significant business growth-up to twenty-nine employees-and preserve a union-free workplace. The ILO has twice recommended that Ecuador reduce the number, noting that Ecuador "has a very large proportion of small enterprises."

Recommendation: The Ministry of Labor should undertake a survey to determine the number of employers with fewer than thirty workers in the banana sector and update the data regularly.

Recommendation: Congress should amend the Labor Code to reduce the minimum number of workers required to form a union, pursuant to the ILO's recommendations.

To Banana-Exporting Corporations and Local Suppliers

Finding: Corporations export over four million metric tons of Ecuadorian bananas annually, a significant percentage of which are supplied by third-party plantations. When labor rights abuses occur on these plantations and exporting corporations fail to take remedial steps to ensure respect for workers' rights, these companies facilitate and benefit from the violations. Therefore, exporting corporations, in addition to independent local plantation owners, have an obligation to ensure that workers' rights are upheld on companies' independent supplier plantations.

Recommendation: Exporting corporations, in coordination with their independent local suppliers, should ensure that pesticides potentially harmful to children are neither sanctioned for use nor applied in practice on supplier plantations.



Recommendation: In the event that corporations discover violations of Ecuadorian labor law or international labor standards on supplier plantations, the corporations should immediately turn this information over to the appropriate Ecuadorian authorities.

Recommendation: When exporting corporations find children under fifteen working on their directly owned or third-party supplier plantations, they, in coordination with the independent local suppliers, should provide adequate support for those children to attend school or a suitable academic alternative until they reach age fifteen, in accordance with the Constitution that mandates schooling for children under fifteen. When those children are under fourteen, the minimum age of employment established by the Labor Code, adequate support should be provided for them to attend school or an appropriate academic alternative in lieu of working.

Recommendation: Dole, a signatory member of the workplace code of conduct SA8000, should fulfill its public commitment to monitor labor conditions, including freedom of association and child labor, on third-party supplier plantations; begin to bring all suppliers, both long-term and sporadic, into compliance with Ecuadorian labor law and SA8000 standards as soon as possible and at least within the reasonable period of 180 days; and report publicly on such efforts on at least an annual basis.

Recommendation: Chiquita, which has incorporated into its company code of conduct most of SA8000's terms, should fulfill its public commitment to monitor labor conditions, including freedom of association and child labor, on its third-party supplier plantations; begin to bring all suppliers, both long-term and sporadic, into compliance with Ecuadorian labor law and its company code of conduct as soon as possible and at least within the reasonable period of 180 days; and report publicly on such efforts on at least an annual basis.

Recommendation: Chiquita should ensure that all external agreements negotiated with trade union bodies or other third parties that address labor rights on Chiquita's supplier plantations, like the "IUF/COLSIBA and Chiquita Agreement on Freedom of Association, Minimum Labour Standards and Employment in Latin American Banana Operations," meet or exceed the standards set forth in the company's internal code of conduct.



To the International Labor Organization and the United Nations Children's Fund

Finding: Ecuador has signed a Memorandum of Understanding with the ILO's International Programme on the Elimination of Child Labour, a program that works progressively to eliminate child labor, largely by strengthening national capacities to address child labor issues. IPEC has developed action programs in Ecuador to address the issues of street children, children in brick-making, and children laboring in small-scale traditional mining, and Quito's Construction Chamber (Cámara de Construcción de Quito) has signed an agreement with IPEC to finance economic feasibility studies for the brick-making sector programs.

Recommendation: IPEC should consider expanding its work in Ecuador to include action programs and other initiatives to address child labor in the banana sector and should negotiate agreements with banana-exporting corporations in which the corporations commit to providing financial assistance to these activities.

Finding: In 2001, the United States Congress appropriated U.S. $45 million to IPEC to focus on five objectives, one of which is "[e]liminating child labor in specific hazardous and/or abusive occupations" with an aim to "remove children from work, provide them with educational opportunities, and generate alternative sources of income for their families." No such program has been developed to address child labor on Ecuador's banana plantations.

Recommendation: IPEC should develop and implement such a project in Ecuador's banana sector in cooperation with the government, labor and banana industry groups, and nongovernmental organizations.

Finding: Although SIMPOC's national child labor survey, begun in August 2001, will document the number of children working in the agriculture sector, the data will not indicate how many of those rural child laborers are banana workers.

Recommendation: Through its national child labor survey, SIMPOC should gather statistics that demonstrate the scope and scale of child labor in the banana industry and should use Rapid Assessment Methodology-an alternative to scientifically designed statistical methods of data collection designed to obtain information quickly on child labor in a particular setting-to develop a quantitative and qualitative profile of child labor in the banana sector.

Finding: As part of its "Medium-term strategic plan, 2002-2005" (MTSP), UNICEF has identified improved protection of children from violence, exploitation, abuse, and discrimination as one of five priorities. Within the area of exploitation, eliminating the worst forms of child labor is a particular focus.

Recommendation: In accordance with the MTSP, the UNICEF country office in Ecuador should establish effective national, local, and community-based systems to monitor child labor in the banana sector, develop, support, and realize program interventions to end child labor practices in that sector contrary to international standards, and implement recovery and reintegration programs for affected children.

To Countries Engaged in or Preparing to Engage in Trade with Ecuador

Finding: Ecuador is the largest banana exporter in the world. When its bananas enter the global marketplace, many have been produced in violation of internationally recognized labor rights, including freedom of association and the prohibition of the worst forms of child labor.

Recommendation: International trade agreements to which Ecuador is a party and trade regimes governing the importation of Ecuadorian bananas should include provisions that ensure respect for internationally recognized workers' rights, including the right to freedom of association and the prohibition of the worst forms of child labor. In trade agreements, failure to effectively enforce or progressively implement such standards should trigger the same dispute settlement, enforcement procedures, or penalties available to other issues covered by these agreements.

To International Financial Institutions

Finding: The International Finance Corporation's (IFC's), a member of the World Bank Group, in March 1998, adopted its "Policy Statement on Harmful Child and Forced Labor," with "Interim Guidance" that encourages companies receiving IFC financing to review major supplier relationships and ask suppliers to "address" instances of harmful child labor.

Recommendation: Although the IFC "Policy Statement on Harmful Child and Forced Labor" also states, "Projects should comply with the national laws of the host countries, including those that protect core labor standards and related treaties ratified by the host countries," the IFC should expand the policy to provide explicitly that the IFC will not support projects in which the ILO Declaration on Fundamental Principles and Rights at Work is violated.

Recommendation: The IFC should revise its "Policy Statement on Harmful Child and Forced Labor" to make investment assistance contingent on beneficiary corporations' respect for the internationally recognized workers' rights set forth in the ILO Declaration on Fundamental Principles and Rights at Work, which include the right to "freedom of association" and the "effective abolition of child labour"-both in enterprises directly owned by the corporations and in third-party supplier enterprises.

Recommendation: The IFC should ensure that any IFC projects that invest in corporations exporting bananas from Ecuador conduct reviews of labor practices both on the corporations' directly owned plantations as well as independent supplier plantations during initial project appraisals and ongoing supervision and make investment conditional on respect for internationally recognized labor rights on those plantations.

Finding: In the past decade, the Inter-American Development Bank (IADB) and the World Bank have funded a number of programs in Ecuador's rural and agricultural sectors. In the project appraisal for its program approved July 2001, "Rural Poverty Alleviation and Local Development Project," the World Bank noted, "Public regulatory and administrative institutions are weak and inefficient" and "the economic crisis has severely reduced government resources." Nevertheless, none of the IADB or World Bank programs have dedicated resources to address the failure of Ecuador's Ministry of Labor to enforce domestic labor laws in the banana sector.

Recommendation: In consultation with the ILO, the World Bank and/or IADB should fund a project in Ecuador that provides technical support and capacity building assistance for the Ministry of Labor to enforce labor legislation effectively in the banana sector.

IX. CONCLUSION

Human Rights Watch takes no position on trade nor globalization per se, but instead believes that the two must not occur at the expense of the labor rights of workers producing goods for the global stream of commerce. National governments, exporting corporations, and importing countries have a responsibility to demand respect for the internationally recognized labor rights of these workers from whose toil they all reap rewards. The Ecuadorian government and exporting corporations purchasing bananas from Ecuadorian plantations, however, have fallen far short of fulfilling this responsibility. Similarly, the United States and the European Union, the two largest importers of Ecuadorian bananas, have failed to use their economic power to pressure for respect for the labor rights of banana workers, both young and old, in Ecuador.

The result is widespread labor rights abuses on Ecuador's banana plantations. Children labor for long hours in unsafe and unhealthy working conditions, often leaving school years before they reach the secondary level. Adults work in the same hazardous worksites, deterred from forming workers' organizations by fear of being fired-effectively denied the right to use this internationally sanctioned tool for demanding better working conditions. For many of these child and adult banana workers, laboring on banana plantations is a way of life. Unfortunately, so is the labor exploitation they suffer while the

industry, Ecuador, and foreign markets benefit from the abuse.