V. FREEDOM OF ASSOCIATION

Juan Luis Alfaro, who worked for six years with a permanent contract as a subcontractor for plantation Colón in Balao, told Human Rights Watch that he was fired for requesting a raise for himself and his work team and then accused by his employer of having union sympathies. He explained:

I spoke with the administrator. I wanted him to recognize the amount of boxes [of bananas we produced] and give us more money. . . . He called the plantation owner on the radio. The owner said that he couldn't do that and that I was a troublemaker and that the administrator should look for another work team. . . . I asked for a raise in the morning. At 5:00 that afternoon, they fired me-me and the whole team. . . . The administrator communicated to me that the owner did not need our services and had another team all ready.²¹³

Alfaro continued, "They [then] sent around papers so that they won't give me work on other plantations. Administrators of other plantations showed me the papers. They [the papers] say that I am a troublemaker and that I want to unionize. . . . They don't give me work. They don't want to." He added, "The following day I went to speak to the owner to ask for [indemnity]. He told me that he is not going to recognize not even a cent."²¹⁴ At the time of Human Rights Watch's interview with Alfaro, he was working in a bakery, unable to find work on banana plantations in the area.

Employers who retaliate against workers for exercising their right to organize face few, if any, meaningful repercussions under domestic law, as worker reinstatement is not required and fines for illegal dismissals, in most cases, are insignificant. Moreover, legal loopholes allow employers to create a vulnerable, "permanent temporary" workforce without job security, and the use of subcontracted temporary work teams is widespread on banana plantations. These factors have combined to create a climate of fear among banana workers and largely prevent them from organizing.

Julio Gutiérrez, a retired banana worker from Naranjal, explained to Human Rights Watch, "It's the fear they instill in you. . . . You don't affiliate. They fire you."²¹⁵ Tomás Peña, a sixty-nine-year-old banana worker who had labored in work teams for thirty-six years on a plantation in Balao, stated, "There are no unions. The employers don't want unions. . . . Knowing that you are involved in a union, they fire you. It is not good for them."²¹⁶ Cecilia Menéndez, employed until October 2000 on plantation Colón, stated, "No union. . . . They do not let us. When the people begin to get together, . . . they are fired for it."²¹⁷ Victor Garza, a banana worker in Balao for over forty years, similarly told Human Rights Watch that there are few unions because "when you want to organize and the bosses know it, they fire you. It's the fear we have. We don't have unions because we are afraid."²¹⁸

Substantiating their deep-seated fear of retaliatory dismissal, several workers described cases they recalled of workers who were fired for supporting unionization. Sara Portillo, a worker employed on the plantation group Las Fincas, explained that up until approximately six or seven years ago when the plantation group went bankrupt and was sold, a union existed on the plantations composing Las Fincas. She said, "With the new owner, all the people from Santa Rita [the previous name of the plantation group] who were trade unionists were not given work. . . . The bosses told the guards not to allow them to work. [If trade unionists entered the plantation,] people who knew them told the guards that they were unionists, and the guards advised the administrator, and they were thrown out."²¹⁹ She concluded that people do not attempt unionization now because they fear losing their jobs.

So great are the impediments to and risks in exercising the right to freedom of association that organizing efforts in the sector have been rare. An organizing drive began in February 2002 and is still underway at this writing. Prior to this effort, however, the last concerted attempt to organize banana workers occurred more than five years ago, according to several representatives from the National Federation of Free Farmworkers and Indigenous Peoples of Ecuador (FENACLE) and a representative of the AFL-CIO Solidarity Center in Ecuador.²²⁰ Workers have successfully organized on only roughly five of the more than 5,000 registered banana plantations in Ecuador,²²¹ and only about 1,650 of the roughly 120,000 to 148,000 banana workers are affiliated-approximately 1 percent.²²² The result is a banana worker affiliation rate far lower than that of Colombia or any Central American banana-exporting country.²²³

Freedom of Association under International Law

The ICCPR states that "everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests,"²²⁴ and the International Covenant on Economic, Social and Cultural Rights (ICESCR) similarly recognizes "[t]he right of everyone to form trade unions and join the trade union of his choice."²²⁵ The ILO Declaration on Fundamental Principles and Rights at Work has recognized freedom of association as one of the "fundamental rights," which all ILO members have an obligation to respect and promote.²²⁶ The ILO Convention concerning Freedom of Association and Protection of the Right to Organise states, "Workers . . . without distinction whatsoever, shall have the right to establish and . . . to join organizations of their own choosing without previous authorization."²²⁷ The ILO has clarified that "without distinction" means that "workers . . . be they employed on a permanent basis or for a fixed term, have the right to establish and join organizations of their choosing."²²⁸

The ILO Convention concerning the Right to Organise and Collective Bargaining elaborates on the fundamental right to freedom of association, establishing:

Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. . . . Such protection shall apply more particularly in respect of acts calculated to . . . (b) [c]ause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.²²⁹

According to the ILO Committee on Freedom of Association, protection against anti-union discrimination should cover the periods of recruitment and hiring, employment, and dismissal.²³⁰ The committee has found, however, that as long as "adequate protection" during these periods is, in fact, provided, the methods adopted to safeguard workers against anti-union discrimination may vary from country to country.²³¹ The ILO's Committee of Experts on the Application of Conventions and Recommendations (ILO Committee of Experts) has clarified, however, that because the remedy for anti-union dismissal should "compensate fully, both in financial and in occupational terms, the prejudice suffered by a worker as a result of an act of anti-union discrimination . . . [t]he best solution is generally the reinstatement of the worker in his post with payment of unpaid wages and maintenance of acquired rights."²³² Further:

The Committee considers that legislation which allows the employer in practice to terminate the employment of a worker on condition that he pay the compensation provided for by law in all cases of unjustified dismissal, when the real motive is his trade union membership or activity, is inadequate under the terms of Article 1 of the Convention [ILO Convention concerning the Right to Organise and Collective Bargaining], the most appropriate measure being reinstatement. . . . Where reinstatement is impossible, compensation for anti-union dismissal should be higher than that prescribed for other kinds of dismissal. ²³³

Freedom of Association under Domestic Law

In Ecuador, workers have two primary options for exercising their right to organize: unions and comités de empresa or company committees. Formation of either requires a minimum of thirty workers-raised in 1991 from the previous minimum of fifteen.²³⁴ Formation of a company committee also requires participation of over 50 percent of the workforce.²³⁵ Company committees and unions fill similar roles, yet only a company committee can negotiate a collective contract. If no such committee exists in a workplace, however, a union may negotiate the contract if over 50 percent of company workers are union members.²³⁶

According to the ILO Committee of Experts, fixing a minimum number of members for the establishment of a workers' organization does not in itself violate workers' right to organize, but "the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered."²³⁷ In the case of Ecuador, the ILO has explicitly criticized the thirty-worker minimum for unions and company committees, finding:

Even though the minimum number of 30 workers would be acceptable in the case of sectoral trade unions, the Committee considers that the minimum number should be reduced in the case of [company committees and company unions] so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions.²³⁸

The ILO has twice recommended that Ecuador "take measures to amend the legislation so as to reduce the minimum number of workers required under the Act (presently 30) in order to establish enterprise unions."²³⁹

Ecuador has responded to the complaints filed against it before the ILO by denying that the thirty-worker minimum hinders workers' rights to unionize. The government stated, "[I]t became indispensable and urgent to adjust the rules in the labour law concerning the minimum number of workers necessary for the exercise of the right of association and unionisation, at a time when the country is moving ever faster in a subregional process of economic, customs and industrial integration. . . . The amendment . . . is far from impeding the right of unionisation."²⁴⁰ When Human Rights Watch asked the undersecretary of labor and human resources (undersecretary of labor) for the coastal and Galápagos region to comment on the change from a fifteen- to thirty-worker minimum, however, he explained:

When unionizing began, it began because of ideas of the extreme left. . . . It was so easy to unionize. There was great bitterness among business. The following problem was occurring: . . . to avoid leftist unionization, [companies] did not grow sufficiently. They reached twelve or thirteen [workers] in order not to have unions. The same occurs [now at] twenty-nine.²⁴¹

He concluded, therefore, that the difference now is that avoidance of unionization can be accomplished concurrently with reasonable business growth.

Nonetheless, the Constitution states that "workers' right to organization will be guaranteed."²⁴² Incorporating the language of the ILO Convention concerning Freedom of Association and Protection of the Right to Organise, the Labor Code establishes that "workers . . . without distinction and without need for prior authorization, have the right to form professional associations or unions" and, similarly, that "all workers of the [company] will have the right to form part of the company committee, without any distinction."²⁴³ Under the Labor Code, employers are required to "respect all workers' associations" and are prohibited from "interfering with or violating the right to free development of union . . . activities."²⁴⁴ Despite the general language safeguarding workers' right to freedom of association, a number of crucial weaknesses in Ecuador's labor regime, including the thirty-worker minimum for workers' organizations, render these protections, in practice, virtually meaningless for banana workers and facilitate anti-union discrimination in the sector.

Employers who engage in anti-union discrimination face few, if any, significant repercussions. If an employer violates a worker's right to form a union or company committee, fails to respect a workers' organization, or interferes with a worker's right to develop a workers' association but does not fire the worker for engaging in organizing activity, the employer's conduct can only be sanctioned with a fine of up to U.S. $200 if imposed by the regional Labor Directorate and up to U.S. $50 if imposed by labor inspectors or labor courts.²⁴⁵ Furthermore, only if Labor Code prohibitions of such conduct are liberally construed, is anti-union discrimination in hiring prohibited under Ecuadorian law. The ILO, however, has clearly stated that anti-union hiring discrimination violates worker' right to organize. As discussed, the ILO Committee on Freedom of Association has found that the international law requirement that workers enjoy "adequate protection against acts of anti-union discrimination in respect of their employment" includes protection against anti-union discrimination in hiring.

If an employer dismisses a worker for union activity, the Labor Code does not require that the worker be reinstated. Instead, the law establishes a list of causes for which a worker can legally be terminated and requires that any worker fired for a reason not enumerated therein receive three months' pay if she has worked three years or less for the same employer and one month's pay for every year worked thereafter.²⁴⁶ As union activity is not on the list of permissible causes for dismissal, an anti-union dismissal must be compensated with that same fine. The ILO, however, has explicitly found such a sanctions regime to be inadequate to protect freedom of association. As explained above, the ILO Committee of Experts has found imposition of a fine "provided for by law in all cases of unjustified dismissal, when the real motive is . . . trade union membership or activity" to be inadequate under international law.

Furthermore, with an estimated average monthly salary of between U.S. $110 and U.S. $150 for adult banana workers, a company's cost-benefit analysis may well militate in favor of dismissing possible union supporters and paying the minimal fine-often less than U.S. $400-as a cost of business and a small price to pay for a union-free workplace.²⁴⁷ These minimal penalties and those, described above, established for other anti-union employer conduct fall short of those recommended by international legal bodies and fail to deter employers from retaliating against workers who exercise the right to organize.

In addition, ambiguous Labor Code provisions governing employment contracts and inadequate labor law enforcement allow for the use of consecutive short-term contracts and multiple "project contracts" to hire workers year-round to perform everyday tasks on plantations. Such ambiguity and weak enforcement encourage the creation of a vulnerable and precarious "permanent temporary" workforce, excluded from important Labor Code protections governing freedom of association. Plantations also make prolific use of subcontracted temporary labor, frequently in work teams with fewer than the thirty workers required for organization, thus erecting often prohibitive obstacles to workers' exercise of their right to freedom of association.

Together, these factors have largely stifled organization of banana workers in Ecuador and rendered the constitutionally and internationally protected right to organize a fiction for most in the sector. Ecuador has therefore failed to fulfill its obligation under international law "to ensure to all individuals within its territory and subject to its jurisdiction" the right to organize and "to take the necessary steps . . . to adopt such legislative or other measures as may be necessary to give effect" to that right.²⁴⁸

"Permanent temporary" workers

The Labor Code allows employers to hire temporary workers to satisfy exigent circumstances, such as temporary personnel reductions, or when the demand for regularly provided products or services increases.²⁴⁹ In the former case, the contract must state the reason for hiring, the names of the replaced personnel, and the contract's duration; in the latter case, "the contract cannot have a duration of more than 180 consecutive days."²⁵⁰ The rationale behind this provision is that a worker who provides everyday services to a company on a regular basis, month after month, should be considered a permanent employee and enjoy the corresponding legal protections and benefits.

Nonetheless, this intent can be easily flouted by employers, without contravening the letter of the law, through the use of multiple temporary contracts to satisfy alleged demand increases. Although the Labor Code establishes a cap of 180 consecutive days for one such contract, it does not prohibit the use of consecutive, short-term temporary contracts-weekly or even daily contracts-for many months or years on end, periods that come to far more than 180 consecutive days. In addition, though implicit in the 180-consecutive-day cap for a single contract is a corresponding 180-consecutive-day cap on an employer's right to claim legally an increase in demand, no such limitation is explicitly set forth in the Labor Code. Instead, the proposition that an increase in demand must be transitory can only be inferred. Furthermore, as Minister of Labor Insua explained to Human Rights Watch, "When the temporary contract was created, there was a trick. It said that temporary workers are for when personnel are missing but also when [there is a need for] more workers, and with the [latter], temporary workers were hired all over and the concept of temporary workers was ruined."²⁵¹ As the undersecretary of labor for the coastal and Galápagos region observed, it is very difficult to prove that demand has not increased.²⁵² Thus, by invoking the inherently ambiguous "increase in demand" provision and stringing together a series of short-term contracts, employers create "permanent temporary" employment relationships.

In contrast to temporary contracts, project contracts-contracts for a set amount of work to be performed in a fixed time period-if made for the performance of regular workplace activities, must last, at a minimum, for one year.²⁵³ Only if the project contracts are executed for the performance of tasks outside the scope of normal business operations may they have durations of under one year. Nonetheless, weak enforcement of this requirement gives employers another means by which to employ the same banana workers temporarily, for many months or years on end, to perform everyday tasks, such as processing bananas for shipment.

Using these contracting methods, employers create "permanent temporary" workforces, not covered by Labor Code provisions applicable to legally permanent workers. These contracts-often for a few days or weeks-are rarely put in writing, however, and workers do not know how their employment relationships are classified by the Labor Code. They are aware only that, in the eyes of the law, they are not permanent workers.²⁵⁴

The general manager of Bandecua, Del Monte's subsidiary in Ecuador, described the "permanent temporary" worker phenomenon as follows: "Many independent producers have an informal labor system. . . . Workers can arrive for the day, leave, arrive the next day, and the next. . . . [It's] that way all year, and [it] can be that way for years."²⁵⁵ Gema Caranza, a banana worker employed as a temporary worker for a year and a half on plantations Recreo #1 and #3 in the canton of Naranjal and a year on another group of plantations owned by Arturo Quirola also in Naranjal,²⁵⁶ explained, "Most of us are temporary. . . . We do not have written contracts. No indefinite contract. That's not custom."²⁵⁷ Another temporary packing-plant worker, employed on plantation Italia in the canton of Balao, noted that even field workers working for five years are classified as temporary.²⁵⁸ He said, "In the fields, they work every day, [but] they are not stable." He continued, explaining that in the packing plants there are workers who work directly for the plant administrator, five or six days a week, year-round, and who are also considered temporary workers. Confused, he said, "We don't understand why they are not permanent."²⁵⁹ Two other workers employed on plantation Italia estimated that between 40 and 50 percent of the workers on the plantation are temporary workers.²⁶⁰ The preference for temporary workers, according to Julio Gutiérrez, a retired banana worker, is also evident in the collective bargaining agreement reached between workers on Balao Chico and management, which "before . . . said that if [the company] fired a permanent worker, the company had to replace him with a permanent worker. Now it does not say it." Gutiérrez added, "In Balao Chico, there are workers with over six or eight years. They are permanent, but they are not treated as permanent."²⁶¹

Without permanent contracts, "permanent temporary" workers do not enjoy benefits such as weekends off or paid vacation days.²⁶² In practice, they are also, in most cases, not affiliated with Ecuador's Social Security Institute, providing public health insurance, despite the Labor Code requirement that employers affiliate all workers from their first day of employment.²⁶³ Julio Gutiérrez explained, "The temporary workers enter with the permanent workers. They work every day, [but] they don't receive benefits."²⁶⁴ A nurse employed Monday through Friday from 7:00 a.m. to 4:00 p.m. on a plantation primarily producing for Dole, which she asked Human Rights Watch not to identify for fear of repercussions, explained, "I'm a temporary worker by contract. . . . The contract says that I do not have a right to vacations, to a raise, to overtime, for being temporary."²⁶⁵ A nurse and the head of a pesticide storage facility, working for six days a week for over ten years on another plantation in the canton of Naranjal, remarked that they were also considered temporary workers, did not receive holidays, had no written contracts, and "worked for the company without any benefits." They estimated that of the approximately 300 workers on the plantation, only about twenty are permanent.²⁶⁶

Not only do these "permanent temporary" workers not enjoy benefits due to permanent workers, but they enjoy no job security. Because they are not permanent, they have no legal, contractual expectation that their jobs will extend beyond the days or weeks for which they are officially hired, even though they may work on a daily or weekly basis for many months or even years on end. If such a temporary worker, at the expiration of her short-term contract, is suddenly told not to return to work the following day or week, she has not, technically, been fired, simply not rehired. Therefore, the employer is not bound by Labor Code provisions that govern worker dismissal, including those setting forth a finite number of causes for which a worker can legally be dismissed and requiring that the employer pay indemnity to any worker dismissed for a cause not articulated therein.²⁶⁷ Furthermore, as the Labor Code does not explicitly prohibit anti-union discrimination in hiring, the employer also may not run afoul of Ecuadorian law by failing to rehire a worker for organizing. If, instead, the worker is fired prior to expiration of her short-term contract and the reason for termination is not among the causes for which a worker can be legally dismissed, the worker is due 50 percent of the wages owed for the time remaining on the contract.²⁶⁸ In the case of a banana worker hired for a month, this will likely amount to a sum of less than U.S. $50; for a worker hired for a five-day week, less than U.S. $15; and for a worker hired for a day, less than U.S. $2. The temporary nurse employed on a plantation primarily producing for Dole added, "The temporary workers do not have the same rights as the permanent workers. The administrator [of the plantation] says that the temporary workers do not have a right to an opinion. . . . Because they are temporary, in any moment he can grab them and fire them."²⁶⁹

Even Minister of Labor Insua, responsible for ensuring Labor Code enforcement in Ecuador, was aware of this problem. He commented to Human Rights Watch that, in practice, temporary workers do not enjoy their legally protected right to organize:

They can fire them because they [temporary workers] do not have a right to stability. They are fired if they try to unionize. . . . They all fire them. There is not a company that would not fire them. The temporary worker that gets involved in [unionizing] already knows that he's out. . . . Temporary workers are [hired] so as not to have problems with unions. In the moment that the temporary workers unionize, they are fired.²⁷⁰

Gema Caranza, after working as a "temporary" worker for a year and a half on Recreo #1 and #3 in the canton of Naranjal, was indefinitely "suspended" on May 7, 2001, allegedly for involvement in union activity. She explained that she was told by the boss of the packing plants that "by order of the administrator of all the plantations of Enrique López," she would be suspended. "[The boss said,] `He [the administrator] has found out what you're involved in and [is afraid] that you will want to speak with the people and organize.'"²⁷¹ According to Caranza, her boss, with whom she had a good working relationship, added, "I told you not to get involved in that-that you'd lose your job." Caranza said that in June 2000, she began to attend union-sponsored events and seminars. In most cases, she said, she invented excuses for her absence, afraid to disclose their true purpose. Before leaving for her first union-sponsored event outside Ecuador, however, she showed her boss the event invitation. She said, "He told me to be careful [and] that others might soon know [what I was doing]." Caranza said, "I knew that if they [the administrator, the plantation owner, or others in management] found out, they would fire me. . . . Because that's the way it is. If they find out, they fire you. This is why most people are scared."²⁷²

The practical reality for temporary workers is, therefore, that their right to freedom of association is effectively nullified. In fact, even key Labor Ministry officials do not know the right exists. Although Minister of Labor Insua acknowledged temporary workers' right to organize, high-ranking officials of the Undersecretariat of Labor and Human Resources (Undersecretariat of Labor) for the Coastal and Galápagos Region-directly responsible for approving and registering unions as well as enforcing labor law in that region-believe that their right to organize is not even guaranteed by Ecuadorian law. Despite the Labor Code's explicit protection of the right of "workers . . . without distinction" to organize, the undersecretary of labor for the coastal and Galápagos region, who heads the regional undersecretariat, told Human Rights Watch:

Temporary workers are precarious. They do not have the same guarantees as permanent workers because they do not have the right to indemnity. . . . They do not have the right to unionize. . . . [Unions] could not count temporary workers to meet the minimum number of workers [required for union formation].²⁷³

A representative of the undersecretariat's Legal Department similarly stated, "Temporary workers who work per month do not have the right to organize because they are not stable. . . . If there are temporary workers in the statutes [or] founding papers, they do not count towards the minimum [number required to unionize]."²⁷⁴ And the head of the undersecretariat's Labor Directorate, who oversees the regional labor inspectors and registers unions for the undersecretariat, told Human Rights Watch, "Only stable workers [can unionize]. . . . Temporary workers . . . cannot affiliate. . . . They cannot affiliate after [union formation, either]."²⁷⁵

According to Minister of Labor Insua, however, the difficulty temporary workers face in exercising their right to freedom of association is not as prejudicial to their interests as it might at first seem because "labor law says that the collective contract cannot exclude anyone. . . . [It's] for everyone."²⁷⁶ The Supreme Court of Ecuador has, in fact, found that "the collective labor contract protects all workers subject to the Labor Code's regime, even though they were not affiliated to the association of workers that signed it."²⁷⁷

Therefore, though temporary workers might not be union or company committee members, they legally should enjoy the benefits of any negotiated collective agreement in their workplaces. This does not occur in practice, however, according to a labor leader and several workers who spoke with Human Rights Watch.

An Ecuadorian labor leader representing the AFL-CIO's Solidarity Center in Ecuador explained that, in practice, if temporary workers are to be covered by a collective agreement, the union or company committee that is party to the agreement must negotiate a specific provision that explicitly extends coverage to the temporary workers.²⁷⁸ For example, Carla Villa, a worker employed on plantation Italia, explained, "Those who are not members of the committee do not receive the benefits of the collective agreement."²⁷⁹ Her coworker elaborated, stating that there are roughly ninety workers on the company committee, that they are all permanent workers, and that, as a temporary worker, she enjoyed "no benefits of the collective agreement. [They are] only for the committee, who are permanent workers."²⁸⁰

Use of subcontractors

Approximately half the adults interviewed by Human Rights Watch and almost all the children identified their bosses not as the plantation administrators but as the leaders of small work teams, either in the fields or the packing plants.²⁸¹ These "team leaders," as the workers call them, are responsible for finding, hiring, and overseeing the workers and paying them directly, either in cash or check, often from money given to them by the plantation administrators. According to a banana producer and long-time member of the banana industry in El Oro province, "Normally, they are subcontractors, but semi-permanent subcontractors-months or years on the same plantation."²⁸² Juan Luis Alfaro, a subcontractor employed for six years by plantation Colón in the canton of Balao, stated that he rotated with his team of sixteen workers among the plantation's three packing plants.

They made me sign a contract to hire personnel to process bananas in the packing plant. . . . They wanted to charge me taxes. . . . They made me do a payroll. I had to make the rolls [and] put [the workers'] names and sign [the] blank [paper]. They put the amount. They gave me money to pay the team. . . . They gave me cash.²⁸³

According to the workers who make up these work teams, most of whom work three or four days a week, their team leaders notify them, usually one day prior, when they will be needed on the plantations. A twelve-year-old girl working on the plantation group Las Fincas explained, "They come tell you so you know when they need workers."²⁸⁴ Lisa Moreno, a thirteen-year-old, described being recruited by team leaders, saying, "The boss came looking for me at home because they needed people on Colón. Recently, two weeks ago . . . the [team] boss of Pachina came looking."²⁸⁵ Victor Garza, a sixty-two-year-old worker, explained that he had worked for contractors for approximately forty years. He stated that since 1998, he had worked in Balao on plantations San Vicente, Luz Belén, and San José, owned by Parazul, S.A., for subcontractors hired by the plantations' administrators.²⁸⁶ He told Human Rights Watch, "I am not a permanent worker. . . . No written contract, verbal. They come in trucks to pick us up. They communicate to you so that later, the next day, they pick you up."²⁸⁷

Francisco Lazo, a management-side lawyer in private practice in Ecuador, told Human Rights Watch that subcontracting "is how to break unionization. It is used a lot in the banana sector."²⁸⁸ Exactly how widespread the use of subcontractors is in the sector, however, is difficult to estimate. Use varies greatly from plantation to plantation and company to company. For example, the executive vice president of Favorita, the second-largest nationally owned banana company in Ecuador, told Human Rights Watch that on the plantations of Reybancorp, its banana-producing subsidiary, only 700 of the 5,600 workers-13 percent-are direct company employees; the other 87 percent work for subcontractors.²⁸⁹ In contrast, Noboa, the largest nationally owned banana company, stated that on its plantations, it directly employs approximately 5,300 workers and does not use subcontractors.²⁹⁰

Like temporary workers employed directly by plantation administrators, subcontracted workers, also working on a temporary weekly or daily basis and often without a written contract, lack job security. Cecilia Menéndez, a worker formerly employed on plantation Colón, explained to Human Rights Watch that after she complained about her salary, she knew she had been suspended because, "He [my team leader] stopped looking for me. . . . If he advises me that I should go to work, I go. If not, not." Menéndez added that she learned a lesson from her experience: "You should never complain because it doesn't matter to them. Better to keep quiet."²⁹¹

In addition, though subcontracted workers perform labor from which the company, not the individual subcontractor, directly benefits and may receive wages indirectly from the company, the workers are legally employed only by the subcontractor. This contradicts the spirit of the Constitution, which provides that, "without prejudice to the principal responsibility of the [direct contractor], . . . the person for whose benefit work is realized or services are given will be jointly responsible for compliance with labor obligations, even though the contract is executed by an intermediary."²⁹² Despite the Constitution's inclusive intent, workers are not permitted to organize and then bargain collectively with that "person for whose benefit work is realized or services are given"-that is, the company that, to a great extent, controls their salaries, benefits, and workplace health and safety conditions. Instead, they can only legally organize and negotiate collectively with the subcontractor, the most direct source of their salaries and, therefore, their legal employer.

Even if workers determined that it was worthwhile to organize and then negotiate with their subcontractor, however, they would most likely not be able to do so because the Labor Code requires a minimum of thirty workers to form a union or company committee. As subcontracted teams usually consist of fewer than thirty workers, organization is not even an option for most subcontracted workers. For example, none of the twenty-five current and former adult banana workers interviewed by Human Rights Watch reported working in teams with over twenty-eight workers. According to Joaquín Vásquez, president of UROCAL, an association of small producers, the work teams in packing plants usually consist of between fifteen and twenty workers and, in the fields, no more than twenty-five.²⁹³ And not only does the thirty-worker minimum often preclude subcontracted workers from organizing their work teams, it can also preclude organization among workers laboring on plantations where subcontracting is so heavily utilized that the number of direct company employees is reduced to fewer than thirty.

When asked why plantations of Reybancorp, the banana-producing subsidiary of Favorita, rely so heavily on subcontracted workers, the executive vice president of Favorita told Human Rights Watch, "The advantage is flexibility" and "to avoid a high concentration [of workers] on just one worksite with regards to payment. . . . For more reasonable administrative management, so the company does not have to dedicate itself to this [administrative] work."²⁹⁴ Officials of the Ministry of Labor, however, explained the prolific use of subcontractors differently. The undersecretary of labor for the coastal and Galápagos region stated that companies allow the number of their directly contracted personnel on a given worksite to reach twenty-nine and then "subcontract so as not to have [unions]."²⁹⁵ A labor inspector for the regional undersecretariat, who had visited banana plantations, added, "On the majority of plantations, there are fewer then thirty [direct employees]. They [the plantations] divide into various companies in order to avoid unionization [or] they subcontract and use third-party companies."²⁹⁶ Minister of Labor Insua told Human Rights Watch, "Having subcontracted personnel is a way to avoid unionization and not comply with labor laws."²⁹⁷ At the International Labour Conference in Geneva in June 2001, the minister publicly criticized "`subcontracting' . . . in his country that permits many national and foreign companies to function without one directly employed worker" and indicated that among the primary reasons companies adopt this practice of contracting is "to get rid of unions."²⁹⁸

Weak protections for permanent workers

Even those workers lucky enough to have been hired with permanent employment contracts directly by plantation owners risk dismissal if they attempt to organize. As discussed above, the Labor Code does not require reinstatement when a worker is fired for engaging in union activity, and, instead, in most cases, only requires the payment of a relatively small fine.²⁹⁹ As Undersecretary of Labor Montalvo noted, "If the dismissal is for disharmony, [the fines] will not be an obstacle. . . . It does not function to dissuade. If [the employer] wants to fire [the worker], it will fire [him]."³⁰⁰ Francisco Lazo, a business-side labor lawyer, told Human Rights Watch:

Companies . . . try to avoid unionization because it implies they have to negotiate a collective contract and increase production costs. . . . When the conditions are very bad, they resort to firing. Before, there was [some] minimal stability. The company had to recognize two [years' pay for indemnity]. The visto bueno [mandatory approval for dismissal from the Labor Inspectorate] was more complicated. . . . Now, three months is the indemnity for illegal firing. . . . It's harder for the workers and more favorable for the employer. It's easier to fire workers.³⁰¹

Minister Insua also explained, "If the possibility of people wanting to unionize is seen, they are all fired. . . . They prefer to bring workers from other areas than to have a union. They fire them and they propose a diminished indemnity, and if they don't accept it, they can go to court. For the field worker, . . . it's too difficult [to go to court]. . . . The judicial avenue is very long-two years at a minimum."³⁰² The attorney Lazo concurred, noting:

I can fire workers if I want. I don't necessarily have to pay. It is the worker who has to complain to the Ministry of Labor. The worker is obligated to file the case. The case can last . . . two years. Companies that tell a man to leave tell him that they will not pay and don't pay. A company can pay much more and [get] good lawyers so [the case] lasts many years. . . . They prefer to pay the lawyer [than the worker].³⁰³

Commenting on the anti-union climate in the banana sector, the general manager of Del Monte's Ecuadorian subsidiary noted:

The [Ecuadorian] banana producer is very radical. He has a phobia of unions. . . . They cut at the roots any efforts [to organize]. They fire the people. . . . In meetings of producers, I've heard that they will do anything not to have unions. . . . The producers here see Costa Rica, Guatemala, and Colombia and talk with producers from those countries who are tied by the unions. They don't want . . . that problem.³⁰⁴

Similarly, a labor inspector for the Undersecretariat of Labor for the Coastal and Galápagos Region told Human Rights Watch, "There have been cases in which they [workers] have wanted to form unions or company committees, and they have been fired. In the banana sector, this is an everyday occurrence."³⁰⁵ The director of the undersecretariat's Labor Directorate added, "Employers are afraid of workers' organizations. If they discover them, they [the workers] are fired . . . before notifying here [to register the organization]."³⁰⁶

²¹³ Human Rights Watch interview, Juan Luis Alfaro.

²¹⁴ Ibid.

²¹⁵ Human Rights Watch interview, Julio Gutiérrez, Guayaquil, May 10, 2001.

²¹⁶ Human Rights Watch interview, Tomás Peña, Balao, May 27, 2001. Peña told Human Rights Watch that the plantation on which he worked, whose name Human Rights Watch has omitted to protect Peña's anonymity, primarily produces for Noboa but that he occasionally saw stickers for Dole placed on the bananas.

²¹⁷ Human Rights Watch interview, Cecilia Menéndez, Balao, May 27, 2001. According to Francisco Chávez, director of human resources for Noboa, Alamos Rey-Rancho is directly owned by Noboa. Human Rights Watch interview, Francisco Chávez.

²¹⁸ Human Rights Watch interview, Victor Garza, Balao, May 19, 2001.

²¹⁹ Human Rights Watch interview, Sara Portillo.

²²⁰ Human Rights Watch interview, Franklin Zambrano, secretary general, FENACLE, Naranjal, May 20, 2001; Human Rights Watch interview, Guillermo Touma, president, FENACLE, Quito, May 8, 2001; Human Rights Watch interview Patricio Contreras, Ecuador representative, AFL-CIO's Solidarity Center, Washington, DC, April 24, 2001.

²²¹ Ibid.

²²² Guillermo Touma and Franklin Zambrano provided Human Rights Watch with estimates of the number of affiliates in each of the five workers' organizations. Human Rights Watch interview, Franklin Zambrano; Human Rights Watch interview, Guillermo Touma.

²²³ Although information and data regarding worker organization rates vary, often widely, depending on the source, Human Rights Watch estimates that organization rates in the top five banana-exporting countries in Latin America are: Ecuador at approximately 1 percent; Costa Rica, with the next lowest rate, at between roughly 6 and 7 percent; Colombia and Panama at approximately 90 percent; and Guatemala at roughly 40 percent, with the rate varying significantly depending on the region. Human Rights Watch telephone interview, Efrén Sandovál, Office of the Legal Commission, Sindicato de Trabajadores de Bananeros de Izabal [Union of Banana Workers of Izabal] (SITRABI), Guatemala, June 25, 2001; Human Rights Watch telephone interview, Manuel Marqués, secretary of education, Sindicato de Trabajadores de la Industria Agropecuaria [Union of Workers of the Agriculture and Livestock Industry] (SINTRAINAGRO), Colombia, June 25, 2001; Human Rights Watch telephone interview, Germán Zepeda, director, Coordinadora Latinoamericana de Sindicatos Bananeros [Coordinator of Latin American Banana Unions] (COLSIBA), Honduras, June 25, 2001; Human Rights Watch telephone interview, Gilberth Bermúdez, director, Sindicato de Trabajadores de Plantaciones Agrícolas [Union of Workers of Agriculture Plantations] (SITRAP), Costa Rica, June 25, 2001; U.S./Labor Education in the Americas Project, Issue #2, August 2000, p. 5.

²²⁴ ICCPR, Article 22(1).

²²⁵ International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316, 993 U.N.T.S. 171, December 16, 1966, Article 8(1). Ecuador ratified the ICESCR on March 6, 1969.

²²⁶ International Labour Conference, ILO Declaration on Fundamental Principles and Rights at Work, 86^th Session, Geneva, June 18, 1998. According to ILO Declaration on Fundamental Principles and Rights at Work, "all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions." Therefore, even countries that have not ratified the ILO Convention concerning Freedom of Association and Protection of the Right to Organise and the ILO Convention concerning the Right to Organise and Collective Bargaining are bound by this obligation.

²²⁷ ILO Convention concerning Freedom of Association and Protection of the Right to Organise (ILO No. 87), 68 U.N.T.S. 17, July 4, 1950, Article 2. ILO Convention No. 87 was ratified by Ecuador on May 29, 1967.

²²⁸ ILO, Complaint against the government of the Philippines presented by the International Federation of Building and Woodworkers (IFBWW), Report No. 292, Case No. 1615, Vol. LXXVII, 1994, Series B, No. 1, para. 332(a).

²²⁹ ILO Convention concerning the Right to Organise and Collective Bargaining (ILO No. 98), 96 U.N.T.S. 257, July 18, 1951, Article 1. ILO Convention No. 98 was ratified by Ecuador on May 28, 1959.

²³⁰ ILO Committee on Freedom of Association, General (Protection against anti-union discrimination), Digest of Decisions, Doc. 1201, 1996, para. 695. The ILO Committee on Freedom of Association examines complaints from workers' and employers' organizations against ILO member states alleging violation of the right to freedom of association, makes determinations based on the facts and applicable legal standards, and recommends measures to resolve the disputes.

²³¹ ILO Committee on Freedom of Association, Need for rapid and effective protection (Protection against anti-union discrimination), Digest of Decisions, Doc. 1204, 1996, para. 737.

²³² International Labour Conference, 1994, Freedom of association and collective bargaining: Protection against acts of anti-union discrimination, Report of the Committee of Experts on the Application of Conventions and Recommendations, 81^st Session, Geneva, 1994, Report III (Part 4B), para. 219. The ILO Committee of Experts is composed of a group of independent experts that reviews reports submitted by ILO member states on their ratification of and compliance with ILO conventions and recommendations. Once a year the committee produces one report on its general observations concerning certain countries and another on a particular theme covered by ILO conventions and recommendations.

²³³ Ibid., paras. 220, 221.

²³⁴ Labor Code, Articles 450, 459.

²³⁵ Ibid., Article 459.

²³⁶ Ibid., Article 226.

²³⁷ International Labour Conference, 1994, Freedom of association and collective bargaining: Right of workers and employers to establish and join organizations, Report of the Committee of Experts on the Application of Conventions and Recommendations, 81^st Session, Geneva, 1994, Report III (Part 4B), para. 81.

²³⁸ ILO, Complaints against the Government of Ecuador presented by the Confederation of Workers of Ecuador (CTE), the Ecuadorian Confederation of Free Trade Union Organisations (CEOSL) and the Latin American Central of Workers (CLAT), Report No. 284, Case No. 1617, Vol. LXXV, 1992, Series B, No.3, para. 1006, citing International Labour Conference, Report of the Committee of Experts on the Application of Conventions and Recommendations, 79^th Session, Geneva, 1992, Report III (Part 4A), pp. 212, 213, 268.

²³⁹ ILO, Complaint against the Government of Ecuador presented by the Ecuadorian Federation of Agricultural, Agro-Industrial and Food Workers (FETAL), Report No. 294, Case No. 1746, Vol. LXXVII, 1994, Series B, No. 2; ILO, Complaints against the Government of Ecuador presented by CTE, CEOSL and CLAT . . . , para. 1006

²⁴⁰ ILO, Complaints against the Government of Ecuador presented by CTE, CEOSL and CLAT . . . , para. 1001.

²⁴¹ Human Rights Watch interview, Alberto Montalvo, undersecretary of labor for the coastal and Galápagos region, Ministry of Labor, Guayaquil, May 16, 2001.

²⁴² Constitution, Article 35(9).

²⁴³ Labor Code, Articles 447, 467; see Convention concerning the Right to Organise and Collective Bargaining, Article 2.

²⁴⁴ Labor Code, Articles 42(10), 44(j).

²⁴⁵ Ibid., Article 626. The IMF has also noted that in Ecuador, "the punishment for noncompliance with labor legislation is relatively low." IMF, "Ecuador: Selected Issues and Statistical Annex" . . . , p. 57.

²⁴⁶ Labor Code, Article 188.

²⁴⁷ Ibid., Articles 459, 462. The indemnity for dismissing a union organizer is only greater if the dismissed worker is a member of a union's elected leadership or if the workers at her workplace have just organized and notified the Labor Inspector but not yet selected union leadership. In such cases, the worker enjoys special union protection, fuero sindical, and the fine due is one year's salary, averaging roughly U.S. $1,300 for banana workers. However, reinstatement is still not required. Ibid., Article 187.

²⁴⁸ ICCPR, Article 2.

²⁴⁹ Labor Code, Article 17. The Labor Code also permits the use of temporary contracts, not to exceed thirty days, for workers hired to attend to emergencies or extraordinary business needs that, unlike the everyday processing or field activities of banana workers, are not linked to the normal activity of the employers. Seasonal contracts may also be used to hire workers for cyclical labor and are understood to create the right for such workers to be hired back the following cycle or season. As banana production in Ecuador is not cyclical and, instead, involves the performance of all phases of production activity year-round, seasonal contracts are generally not used in the sector. Ibid.

²⁵⁰ Ibid.

²⁵¹ Human Rights Watch interview, Minister of Labor Martín Insua.

²⁵² Human Rights Watch interview, Undersecretary of Labor Alberto Montalvo.

²⁵³ Labor Code, Articles 14, 16.

²⁵⁴ The Labor Code requires that temporary contracts and project contracts for ordinary business activities, with a mandatory minimum duration of one year, be executed in writing. Ibid., Article 19.

²⁵⁵ Human Rights Watch interview, Marco García.

²⁵⁶ Gema Caranza told Human Rights Watch that Recreo #1 and #3 primarily produce for Noboa. According to Caranza, Arturo Quirola's plantations are owned by Quirola, a smaller Ecuadorian banana company. Human Rights Watch interview, Gema Caranza, Guayaquil, May 10, 2001.

²⁵⁷ Ibid.

²⁵⁸ According to many workers, Italia primarily produces for Dole. Nonetheless, one child, Ricardo Leiva, and two adults, Carla Villa and Antonio Romero, reported occasionally seeing Del Monte stickers on the bananas produced by Italia; one child, Violeta Chamorro, and Villa and Romero stated that they also saw stickers with Noboa's brand name, Bonita, on the plantation's bananas; Romero claimed also to have seen Favorita stickers on the bananas; and Villa asserted that she occasionally saw Chiquita stickers on the fruit. Human Rights Watch interview, Ricardo Leiva, May 19, 2001; Human Rights Watch interview, Violeta Chamorro; Human Rights Watch interview, Carla Chamorro; Human Rights Watch interview, Carla Villa, Naranjal, May 20, 2001; Human Rights Watch interview, Antonio Romero; Human Rights Watch interview, Julio Gutiérrez, Naranjal, May 26, 2001. Chiquita, however, denied that it purchased bananas from Italia from 1995 through the end of June 2001, years that encompass the period during which these workers labored on plantation Italia. Letter from Jeffrey Zalla to Human Rights Watch, August 28, 2001.

²⁵⁹ Human Rights Watch interview, Antonio Romero.

²⁶⁰ Human Rights Watch interview, Carla Villa; Human Rights Watch interview, Julia Villanueva, Naranjal, May 20, 2001.

²⁶¹ Human Rights Watch interview, Julio Gutiérrez, Guayaquil, May, 10, 2001.

²⁶² The Labor Code grants each worker the right to fifteen uninterrupted paid vacation days annually, including weekends and, after working for over five years for the same employer, one additional vacation day for each year worked, not to exceed fifteen. Labor Code, Article 69. The Labor Code also provides that Saturdays and Sundays are obligatory days of rest, unless circumstances dictate that work cannot be interrupted on those days, in which case, two other days will be designated as days of rest. Ibid., Articles 51-53. Without a stable contract and continuous employment with the same employer, however, these benefits are inaccessible to workers.

²⁶³ Ibid., Article 42(31).

²⁶⁴ Human Rights Watch interview, Julio Gutiérrez, Guayaquil, May 10, 2001.

²⁶⁵ Human Rights Watch interview, Julia Villanueva. As previously stated, all workers' names have been changed to protect them from potential reprisals.

²⁶⁶ Human Rights Watch interview, Manuel Vega and Cristina Gallo, Naranjal, May 26, 2001.

²⁶⁷ Labor Code, Articles 169, 172, 180.

²⁶⁸ Ibid., Article 181.

²⁶⁹ Human Rights Watch interview, Julia Villanueva.

²⁷⁰ Human Rights Watch interview, Minister of Labor Martín Insua.

²⁷¹ Human Rights Watch telephone interview, Gema Caranza, Naranjal, June 8, 2001.

²⁷² Ibid.; Human Rights Watch interview, Gema Caranza, Guayaquil, May 10, 2001.

²⁷³ Human Rights Watch interview, Undersecretary of Labor Alberto Montalvo.

²⁷⁴ Human Rights Watch interview, Mauro Vargas, Department of Legal Assistance, Undersecretary of Labor for the Coastal and Galápagos Region, Guayaquil, May 16, 2001.

²⁷⁵ Human Rights Watch interview, Efraín Duque.

²⁷⁶ Human Rights Watch interview, Minister of Labor Martín Insua.

²⁷⁷ Resolution of the Supreme Court of Justice, March 8, 1990, cited in Labor Code, Article 224.

²⁷⁸ Human Rights Watch interview, Patricio Contreras, Quito, May 22, 2001. The AFL-CIO's Solidarity Center promotes labor rights and labor organizing around the world.

²⁷⁹ Human Rights Watch interview, Carla Villa.

²⁸⁰ Human Rights Watch interview, Julia Villanueva.

²⁸¹ The workers did not distinguish between team leaders who were permanent employees of the company and team leaders who were contracted by the company to hire subcontracted work teams. Therefore, Human Rights Watch is unable to determine with certainty how many of these workers were, in fact, subcontracted.

²⁸² Human Rights Watch telephone interview, Arturo Buchelli, general manager, Movilizadora de Banano, S.A. (MOBANSA), Machala, July 7, 2001.

²⁸³ Human Rights Watch interview, Juan Luis Alfaro.

²⁸⁴ Human Rights Watch interview, Fabiola Cardozo.

²⁸⁵ Human Rights Watch interview, Lisa Moreno.

²⁸⁶ Victor Garza stated that both Luz Belén and San Vicente primarily produce for Dole. Garza added, however, that, on occasion, he had seen boxes produced on Luz Belén for Noboa. Another banana worker working on Luz Belén, Arturo Zedillo, also stated that the plantation produces primarily for Dole. Human Rights Watch interview, Victor Garza; Human Rights Watch interview, Arturo Zedillo, Balao, May 27, 2001.

²⁸⁷ Human Rights Watch interview, Victor Garza.

²⁸⁸ Human Rights Watch interview, Francisco Lazo, attorney, Quito, May 8, 2001.

²⁸⁹ Human Rights Watch interview, Vicente Wong.

²⁹⁰ Human Rights Watch interview, Francisco Chávez. Human Rights Watch interviewed four adult workers who worked or had worked on Alamos-Rey Rancho, a plantation directly owned by Noboa, and they all stated that they were direct company employees and that subcontractors were rarely used.

²⁹¹ Human Rights Watch interview, Cecilia Menéndez.

²⁹² Constitution, Article 35(11). Similarly, according to the Labor Code, an employer and that employer's intermediary hired to contract personnel to perform everyday company tasks share "joint responsibility" for the violation of "obligations to the worker." Labor Code, Article 41.

²⁹³ Human Rights Watch interview, Joaquín Vásquez.

²⁹⁴ Human Rights Watch interview, Vicente Wong.

²⁹⁵ Human Rights Watch interview, Undersecretary of Labor Alberto Montalvo.

²⁹⁶ Human Rights Watch interview, Ricardo Campozano, regional labor inspector for the coastal and Galápagos region, Ministry of Labor, Guayaquil, May 16, 2001.

²⁹⁷ Human Rights Watch interview, Minister of Labor Martín Insua.

²⁹⁸ "Ministro Insua denunció abuso subcontratción" ["Minister Insua denounces the abuse of subcontracting"], El Universo, June 20, 2001.

²⁹⁹ Labor Code, Article 188.

³⁰⁰ Human Rights Watch interview, Undersecretary of Labor Alberto Montalvo.

³⁰¹ Human Rights Watch interview, Francisco Lazo.

³⁰² Human Rights Watch interview, Minister of Labor Martín Insua.

³⁰³ Human Rights Watch interview, Francisco Lazo.

³⁰⁴ Human Rights Watch interview, Marco García. Nevertheless, the International Confederation of Free Trade Unions (ICFTU) notes that more trade unionists-135-were killed in Colombia in 2000 than in any other country. ICFTU, Annual Survey of Violations of Trade Union Rights 2001 (Brussels, Belgium: ICFTU, 2000), pp. 5, 44, 53.

³⁰⁵ Human Rights Watch interview, Ricardo Campozano.

³⁰⁶ Human Rights Watch interview, Efraín Duque.