Developments Since September 2004

However, the executive decree on subcontracting issued on October 5, 2004, is significantly weaker than previous drafts.  Of the three draft articles described above—articles 3, 11, and 21—only article 21 appears in the final version.  Although the decree establishes a limit on the percentage of subcontracted workers in any workplace, the limit is 75 percent of the total workforce, rather than the 20 percent we had recommended.  The decree includes none of our other recommendations and does nothing to address the other violations of workers' right to organize that we have identified and that infringe ATPDEA eligibility criteria. 

In addition, the decree contains a loophole by which individuals acting as subcontractors in the agricultural sector may be exempt from many of its provisions.  As Human Rights Watch documented in our 2002 report, Tainted Harvest: Child Labor and Obstacles to Organizing on Ecuador’s Banana Plantations, the use of individual subcontractors and their hired work teams is common in Ecuador’s banana sector, creating a serious obstacle to workers’ right to freedom of association.  By exempting these individual subcontractors from many executive decree provisions, Ecuador further reduces an already weak decree’s potential for positive impact on workers’ human rights. 

As a result of these serious shortcomings, even if fully enforced, the executive decree will likely fail to effectively prevent subcontractors from being used to undermine workers’ right to freedom of association in Ecuador.  In addition, implementation of the decree is off to a rocky start, as the Ministry of Labor has extended by seven months—until July 31, 2005—the December 31, 2004, deadline by which, according to the decree, all subcontractors covered by its terms were to have registered with the Labor Ministry.

Child Labor Inspectors: Inadequate Funding, Training, and Infrastructure

Since September 2004, Ecuador has selected additional child labor inspectors to reach at least the full complement required by law—twenty-two.³  Twenty-three child labor inspectors have reportedly been selected, with an additional one or two slated for hire soon.  Human Rights Watch applauds this step. 

Nonetheless, since January 2005, many of the child labor inspectors reportedly do not have labor contracts and they are not receiving their salaries.  They do not have funds for operating expenses, still lack basic infrastructural and logistical support, have inadequate offices and few computers, and lack other basic supplies.  The newly hired inspectors have received far less training than other inspectors.  The new child labor inspectors have reportedly only received two days training, as compared to the roughly seven and a half days for inspectors hired in 2004 and the three months for those hired in 2003.  Inspections are currently sporadic and spotty at best, and the results are reportedly not being fully or properly processed. 

While the Ministry of Labor has developed and outlined plans for child labor related activities and programs, including inspections, for FY 2005 at a cost of  upwards of U.S.$300,000, Ecuador’s FY 2005 budget includes no money for any of them.  The Ministry of Labor has requested the funds, but the matter is still pending, and in the interim, money is lacking.   Human Rights Watch believes that it will be very difficult for the child labor inspectors to carry out their duties if they are not paid and given adequate infrastructure, logistical support, and training.