Benchmarks on Freedom of Association

Benchmarks for Los Alamos Case

Human Rights Watch recognizes that over two years have passed since the May 2002 labor conflict on the Los Alamos banana plantations, described in more detail in Appendix I, and that re-opening investigations into the anti-union violence and the police response, at this late date, would be difficult. Nonetheless, we also believe that Ecuador’s failure to uphold its October 2002 commitments in this regard is unacceptable. Ecuador’s response to the anti-union violence on the Los Alamos banana plantations is a tragic example of the country’s continued failure to take the necessary steps to protect workers’ right to freedom of association and hold accountable those who violate that right. Therefore, in order to achieve full ATPA and ATPDEA compliance, we believe that Ecuador should undertake new investigations into both the police response to the 2002 Los Alamos labor conflict and the May 2002 anti-union violence at Los Alamos.

Both investigations should include interviews with worker witnesses. In addition, unlike the previous criminal investigation, the new one should examine both incidents of anti-union violence, the shooting injuries of at least nine banana workers, and the roughly two hundred direct perpetrators of the crimes as well as those who may have masterminded the attacks. Parties suspected of bearing responsibility for the anti-union violence should be prosecuted; the findings of the investigation into police conduct should be publicly released; any police officers who failed to follow legally mandated procedures should be sanctioned; and workers negatively affected by improper police conduct should be compensated.

Benchmarks for Reform of Laws on Freedom of Association

In order to fully comply with the ATPA and ATPDEA, Human Rights Watch believes that not only must the draft executive decree on third-party contractors be immediately issued and effectively enforced but the Ecuadorian Labor Code should be amended to:

provide for reinstatement of all workers fired for engaging in union activity and for the payment of wages lost during the period when the workers were wrongfully dismissed;

prohibit explicitly employer failure to hire workers due to their involvement in or suspected support for organizing activity;

reduce from thirty the minimum number of workers required to form a union, as recommended by the ILO;

prohibit explicitly employer interference in the establishment or functioning of workers’ organizations, including all activities prohibited by article 2 of ILO Convention 98 concerning the Right to Organize and Collective Bargaining;^{^³⁷}

guarantee explicitly workers’ right to form industry-wide and sector-wide unions;

prohibit not only the use of temporary contracts with durations of over 180 consecutive days, as currently provided, but also ban the use of consecutive, short-term temporary contracts—by either primary employers or third-party contractors—adding up to more than 180 consecutive days;

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;

limit the percentage of subcontracted workers in any workplace to a maximum of 20 percent of the total number of workers;

limit the use of third-party contractors to those providing workers to perform temporary or complimentary services and those operating independently and autonomously, with their own capital and personnel, to perform specific, discrete jobs; and

codify the following provisions of the draft executive decree on third-party contractors:

article 3, to provide that if third-party contractors violate laws or regulations governing their operations, their subcontracted workers shall be legally considered direct employees of the main company;

article 11, to establish that subcontracted workers must receive the same salaries and benefits and enjoy the same employment conditions as employees at the same level hired directly by the main company; and

article 21, to ban third-party contractors from having business partners, associates, managers, legal representatives, or administrators who also hold such positions with the main employer or who have only one client.

[37] ILO Convention 98, article 2, establishes that “acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organisations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations, shall be deemed to constitute acts of interference within the meaning of this article.”

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March 2005