When the planes pass, we cover ourselves with our shirts. . . . We just continue working. . . . We can smell the pesticides.
-Enrique Gallana, a fourteen-year-old working on plantation San Carlos in the canton [municipality] of Balao, approximately seventy miles south of Guayaquil in southern Guayas province.
They are fired if they try to unionize. . . . 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.
-Martín Insua, minister of labor and human resources of Ecuador.
Roughly one quarter of all bananas on tables in the United States and the European Union are grown on plantations scattered along Ecuador's coast, where workers' international labor rights are flouted daily. Ecuador, the largest banana exporter in the world, whose plantations supply corporations like Dole Food Company, Inc. (Dole), Del Monte Fresh Produce Company (Del Monte), and Chiquita Brands International, Inc. (Chiquita), does not adequately enforce its own labor laws. Nor do those laws fully meet international standards. Ecuadorian children as young as eight labor in banana fields and packing plants where they are exposed to toxic pesticides and other unsafe working conditions in violation of their rights, while adult workers toil in the same hazardous worksites, often with little or no job security, deterred from organizing for fear of summary dismissal. Even Chiquita's own 2000 Corporate Responsibility Report, analyzing its attempt at socially responsible engagement in Ecuador, recognizes that the country's rise to become the world's leading banana exporter "has been fueled by lower labor, social, and environmental standards than are generally present in the rest of Latin America."
In 2000, roughly 31 percent of Dole's export bananas, 13 percent of Del Monte's, and 7 percent of Chiquita's were supplied by Ecuadorian plantations. In contrast to other Latin American banana-producing countries, where multinational corporations directly own the majority of banana-producing land, in Ecuador, multinationals generally obtain bananas from a multitude of third-party Ecuadorian producers. Of the world's three largest banana corporations-Chiquita, Dole, and Del Monte-only Dole directly owns banana-producing land in Ecuador, approximately 2,000 acres. Similarly, Ecuador's two largest nationally owned banana-exporting companies, Exportadora Bananera Noboa, S.A. (Noboa), and Rey Banano del Pacífico, C.A. (Reybanpac), the banana-exporting subsidiary of Holding Favorita Fruit Company, Ltd. (Favorita), also rely heavily on third-party producers to supply their export bananas. Thus, exporting corporations, which have foreign sales of over four million metric tons of bananas annually, are able to limit their direct responsibility for the harsh conditions endured by workers producing those bananas. Nonetheless, Human Rights Watch believes that the exporting corporations have an obligation to ensure respect for workers' rights even on their supplier plantations.
In May 2001, Human Rights Watch conducted a three-week fact-finding mission in Quito and the Guayas and El Oro provinces in Ecuador to investigate child labor and obstacles to freedom of association in the banana sector. During the investigation, Human Rights Watch spoke with seventy current and former banana workers, adults and children, whose real names are not used in this report to protect them from potential employer reprisals.
Human Rights Watch interviewed forty-five children who had worked or were working on banana plantations in Ecuador. Forty-one of them began in the banana sector between the ages of eight and thirteen, most starting at ages ten or eleven. They described workdays of twelve hours on average and hazardous conditions that violated their human rights, including dangerous tasks detrimental to their physical and psychological well-being. The children reported being exposed to pesticides, using sharp tools, hauling heavy loads of bananas from the fields to the packing plants, lacking potable water and restroom facilities, and experiencing sexual harassment. Children told Human Rights Watch that they handled insecticide-treated plastics used in the fields to cover and protect bananas, directly applied fungicides to bananas being prepared for shipment in packing plants, and continued working while fungicides were sprayed from planes flying overhead. Sometimes the children were provided protective equipment; most often, they were not. These children enumerated the various adverse health effects that they had suffered shortly after pesticide exposure, including headaches, fever, dizziness, red eyes, stomachaches, nausea, vomiting, trembling and shaking, itching, burning nostrils, fatigue, and aching bones. Children also described working with sharp tools, such as knives, machetes, and short curved blades, and three pre-adolescent girls, aged twelve, twelve, and eleven, described the sexual harassment they allegedly had experienced at the hands of the administrator of two packing plants where they worked. In addition, four boys explained that they attached harnesses to themselves, hooked themselves to pulleys on cables from which banana stalks were hung, and used this pulley system to drag approximately twenty banana-laden stalks, weighing between fifty and one hundred pounds each, over one mile from the fields to the packing plants five or six times a day. Two of these boys stated that, on occasion, the iron pulleys came loose and fell on their heads, making them bleed.
Fewer than 40 percent of these children were still in school at age fourteen. When asked why they had left school to work, most answered that they needed to provide money for their parents to purchase food and clothing for their families, many of whom also relied on the nearby banana plantations for their income. Though important for their families, the average income contributed by the children with whom Human Rights Watch spoke was only U.S. $3.50 for every day worked-roughly 64 percent of the average wage earned by the adults interviewed by Human Rights Watch and 60 percent of the legal minimum wage for banana workers.
If applied, Ecuadorian laws governing child labor could go a long way to protecting the human rights of these children-preventing them from laboring in conditions that violate their right to health and development. If implemented, the laws could also prevent children from engaging in employment likely to interfere with their right to education. Nonetheless, the Ministry of Labor and Human Resources (Ministry of Labor) and the juvenile courts-from which employers must obtain authorization prior to hiring any child under fourteen-fail to fulfill their legally mandated responsibility to enforce domestic laws governing child labor, and the other governmental entities commissioned to address children's issues do not include child banana workers in the scope of their activities. The result is an almost complete breakdown of the government bureaucracy responsible for enforcing child labor laws and preventing the worst forms of child labor in Ecuador's banana sector.
Freedom of Association
In contrast to child labor legislation, Ecuadorian law intended to protect workers' right to freedom of association and to form and join trade unions, even if enforced, is inadequate and fails to deter employers from retaliating against workers for organizing. For example, although the Ecuadorian Constitution and Labor Code guarantee the right to organize, they do not require reinstatement of workers fired for union activity. Instead, an employer need only pay a relatively small fine for an anti-union dismissal, less than U.S. $400 in most cases involving a banana worker.
In addition, Ecuador's failure to enforce its Labor Code provisions governing labor contracts and the ambiguity of those provisions enable employers to create a vulnerable "permanent temporary" workforce in the banana sector. These failures allow for the informal use of consecutive short-term contracts and multiple project contracts. Temporary contracts are strung together, one after the other, for many months or years on end, to create a precarious "permanent temporary" workforce. These "permanent temporary" workers are not entitled to benefits due workers recognized as permanent in the eyes of the law. Because they are not permanent, they have no legal expectation that their jobs will extend beyond the few days or weeks for which they are officially hired. Therefore, their employers are not bound by Labor Code provisions that prohibit anti-union dismissals-if temporary workers are suddenly told not to return to work the following day or week, they have not technically been fired; they have simply not been rehired. And the Labor Code does not explicitly prohibit anti-union discrimination in rehiring.
Finally, the use of subcontracted labor, frequently in work teams with fewer than the thirty workers required by law to form a workers' organization, has also erected often prohibitive obstacles to worker organization. Like "permanent temporary" workers, subcontracted workers, if temporary, lack employment stability. In addition, however, subcontracted workers have no legal right to organize and then collectively bargain with the companies or employers benefiting from their labor-though the companies may determine their wages, benefits, and working conditions. These subcontracted workers are, instead, able to organize and negotiate collectively only with their subcontractors.
Workers with whom Human Rights Watch spoke understood that their right to freedom of association is not, in practice, protected by the Labor Code. The risks inherent in organizing were very clear to workers, particularly temporary workers, and they described a pervasive climate of fear in the sector that deterred them and others from organizing-fear of dismissal and of being labeled "troublemakers."
So strong is the deterrent that banana worker organizing in Ecuador has largely been stifled, and the constitutionally and internationally protected right to freedom of association has been rendered a fiction for most in the sector. So great are the impediments to and risks in exercising the right to freedom of association that, prior to the organizing drive begun in late February 2002 and still underway at this writing, the last concerted attempt to organize banana workers occurred as much as five years ago. Workers have successfully organized on only roughly five of the more than 5,000 registered banana plantations in Ecuador. Only approximately 1,650 of the roughly 120,000 to 148,000 banana workers are affiliated with workers' organizations- approximately 1 percent of the workforce-a banana worker affiliation rate far lower than that of Colombia or any Central American banana-exporting country.
These labor rights abuses underlie the production of millions of metric tons of bananas supplied to exporting corporations every year. They occur because of Ecuador's failure to enforce its labor laws and its lack of sufficient legal protections for workers' rights-governmental omissions that allow banana producers to violate workers' rights with impunity. Exporting corporations contract directly with these national producers and benefit from these violations by receiving goods produced under abusive labor conditions. Nonetheless, representatives of Dole, Chiquita, Del Monte, Noboa, and Favorita with whom Human Rights Watch spoke in Ecuador all disclaimed any obligation to demand respect for workers' rights on third-party plantations from which they purchase bananas for export. They explained, in some cases contradicting their own codes of conduct, that supplier plantations are private property over which they have no jurisdiction and that decisions regarding labor matters thereon are ultimately the prerogative of the plantations' administrators. Human Rights Watch believes that when exporting corporations fail to use their financial influence to demand respect for labor rights on their supplier plantations, the exporting corporations benefit from, facilitate, and are therefore complicit in labor rights violations.
By failing to enforce its child labor laws and its compulsory education requirements in the banana sector, Ecuador has breached its legal obligations under the Convention on the Rights of the Child, the International Labor Organization (ILO) Convention Concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labour (Worst Forms of Child Labour Convention), and the ILO Minimum Age Convention. Lacking explicit protections against sexual harassment, Ecuadorian law also fails to fulfill the country's obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belém do Pará). And by failing to give effect to banana workers' right to organize, instead legislatively permitting impediments to freedom of association, Ecuador has violated its duty to respect, protect, and promote workers' right to organize, as required by the International Covenant on Civil and Political Rights (ICCPR), 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.