Section 7. Worker Rights
The law, with some exceptions, provides for the rights of workers to form and join trade unions of their choice, bargain collectively, and conduct legal strikes. The law prohibits the dismissal of union members from the moment a union notifies the labor inspector of its general assembly until the formation of its first executive board, the first legal steps in forming a union. Employers are not required to reinstate workers fired for union activity but are required to pay compensation and fines to such workers. According to the Ministry of Labor, 2,969 labor unions represented 879,000 workers. The Center for Labor Policy Studies estimated that labor organizations represented 4 percent of all public and private workers.
Companies that dismiss employees attempting to form a union or that dismiss union members exercising their rights face a fine of one year’s annual salary for each individual wrongfully let go. The process to register a union often took weeks or longer and was complicated, inhibiting union registration. Individual workers still employed may take complaints against employers to the Labor Inspection Office. Individuals no longer employed may take their complaints to courts charged with protecting labor rights. Unions may also take complaints to a tripartite arbitration board established to hear these complaints. These procedures often were subject to lengthy delays and appeals.
All private employers with a union are required to negotiate collectively when the union so requests. The law requires a minimum of 30 workers for the creation of an association, work committee, or labor union, and it does not allow foreign citizens to serve as trade union officers. The law prohibits employers from using domestic outsourcing, including subcontracting, third party, and hourly contracts, to avoid providing employees the right to form a union and to receive employee benefits.
The law provides for the right of private-sector employees to strike on their own behalf and conduct three-day solidarity strikes or boycotts on the behalf of other industries. The law also establishes, however, that all collective labor disputes be referred to courts of conciliation and arbitration. In 2014 the International Labor Organization (ILO) called on the government to amend this provision by limiting such compulsory arbitration to cases where both parties agree to arbitration and the strike involves the public servants who exercise authority in the name of the state or who perform essential services. As of August 17, the government had not taken any action.
In most industries the law requires a 10-day “cooling-off” period from the time a strike is declared before it can take effect. In the case of the agriculture and hospitality industries, where workers are needed for “permanent care,” the law requires a 20-day “cooling-off” period from the day the strike is called, and workers cannot take possession of a workplace. During this time workers and employers must agree on how many workers are needed to ensure a minimum level of service, and at least 20 percent of the workforce must continue to work in order to provide essential services. The law provides that “the employer may contract substitute personnel” only when striking workers refuse to send the number of workers required to provide the minimum necessary services.
The law prohibits formation of unions and restricts the right to collective bargaining and striking of public-sector workers in “strategic sectors.” Such sectors include workers in the health, environmental sanitation, education, justice, firefighting, social security, electrical energy, drinking water and sewage, hydrocarbon production, fuel processing, transport and distribution, public transportation, and post and telecommunications sectors. Some of the sectors defined as strategic exceed the ILO standard for essential services. Workers in these sectors attempting to strike may face charges with penalties of between two and five years’ imprisonment. All unions in the public sector fall under the Confederation of Public Servants. Although the vast majority of public-sector workers also maintained membership in labor sector associations, the law does not allow such associations to bargain collectively or strike. In 2015 the National Assembly amended the constitution to specify that only the private sector could engage in collective bargaining.
Government efforts to enforce legal protections of freedom of association and the right to collective bargaining often were inadequate and inconsistent. Employers did not always respect freedom of association and collective bargaining. Although independent, unions often had strong ties to political movements.
During the year labor organization reported several cases of labor abuse and illegal dismissal of workers. There were no reports of workers being fired for union activities. On August 25, bus owners and drivers voted to suspend all municipal transit service in Quito, following negotiations with the municipal council to raise fares. Quito Mayor Mauricio Rodas announced legal action against the Pichincha Chamber of Transport, the union representing bus owners, based on a law prohibiting strikes of providers of public transportation services. The daylong strike resulted in 10 persons detained and four injured. On August 26, leaders from Quito’s municipal transportation service announced an end to the strike following meetings with municipal officials to seek agreement on a resolution. On September 6, Mayor Rodas said that municipal transportation employees had 30 days to demonstrate improved service in order to secure a five-cent fare increase. During this period the Metropolitan Transit Agency conducted random inspections and recorded 495 sanctions and 14 major infractions committed by transportation employees. They also received close to 800 complaints for poor service. Mayor Rodas said that all of the data collected during the 30-day period would be taken into account when evaluating a possible fare increase.
The law prohibits all forms of forced or compulsory labor. The law does not require the means of force, fraud, or coercion for cases of forced labor and includes all forms of labor exploitation, child labor, illegal adoption, servile marriage, and the sale of tissues, fluids, and genetic materials of living persons. Penalties under this article range from 13 to 16 years’ imprisonment. The law penalizes forced labor and other forms of exploitative labor, including all labor of children younger than age 15. Penalties for forced or exploitative labor are 10 to 13 years’ imprisonment.
Limited resources, limited presence in parts of the country, and inadequate victim services hampered the effectiveness of police and prosecutors. As of October human rights organizations and media outlets continued to report that children were being subjected to forced criminality, particularly drug trafficking. The government identified and assisted 75 potential child trafficking victims, at least 11 of whom were victims of forced labor. A report issued during the year stated that the antitrafficking and human smuggling police unit arrested 56 suspected traffickers and conducted 52 antitrafficking operations in 2016.
Reports of forced labor of children (see section 7.c.) and women persisted. Observers most frequently reported women as victims of sex trafficking or of working in private homes under conditions that may amount to human trafficking. On April 12, El Telegrafonewspaper reported a 25-year prison sentence against a man who forced a 12 year-old female into prostitution. Forensic tests revealed that the perpetrator drugged the minor. Indigenous Afro-Ecuadorians, as well as Colombian refugees and migrants (see section 7.d.), were particularly vulnerable to human trafficking. Traffickers often recruited children from impoverished families under false promises of employment; these children were then forced to beg or to work as domestic servants, in sweatshops, or as street and commercial vendors within the country or in other South American countries. Women and children were exploited in forced labor and sex trafficking abroad, including in other South American countries, the United States, and Europe. The country is a destination for Colombian, Peruvian, Paraguayan, and Cuban women and girls exploited in sex trafficking, domestic servitude, and forced begging.
Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
The law sets the minimum working age for minors at 15 for all types of labor and the maximum hours a minor may work at six hours per day, five days per week. The law requires employers of minors who have not completed elementary school to give them two additional hours off from work to complete studies. The law requires employers to pay minors the same wages received by adults for the same type of employment and prohibits minors under the age of 18 from working in “dangerous and unhealthy” conditions. A 2015 ministerial accord lists 27 economic activities that qualify as dangerous and unhealthy. Other illegal activities, including slavery, prostitution, pornography, and drug trafficking, are punishable. The law identifies work that is “likely to harm the health, safety, or morals of a child,” including work in mines, garbage dumps, slaughterhouses, livestock, fishing, textiles, logging, and domestic service, as well as any work environment requiring exposure to toxic or dangerous substances, dust, dangerous machinery, or loud noises.
The law establishes penalties for violations of child labor laws, including fines and closure of the business. Fines for violations of child labor laws range from $50 to $300 for parents or guardians and $200 to $1,000 for employers hiring children younger than age 15. These penalties were not sufficient to deter violations. If an employer commits a second child labor violation, inspectors may close the business temporarily. The law authorizes labor inspectors to conduct inspections at workplaces including factories, workshops, and any other location when they consider it appropriate or when an employer or worker requests an inspection.
The Ministries of Labor and of Economic and Social Inclusion and the Minors’ Tribunal enforce child labor laws.
Statistics from the National Institute of Statistics and Census (INEC) and the National Survey of Employment, Unemployment, and Underemployment (ENEMDU) reported in March a total of 522,656 children and adolescents between the ages of five and 17 working in the country. This was a significant increase compared with NGO reporting in 2016. As reported in local press on May 1, statistics by the Ministry of Economic and Social Inclusion also indicated that the province with the highest rate of child labor was Cotopaxi, with 25.1 percent of children working, followed by Bolivar, Chimborazo, Canar, Loja, and Azuay. The two provinces with the lowest rate of child employment were Manabi (4.4 percent) and Santa Elena (4.9 percent). In a 2015 INEC study, more than 73 percent of child laborers up to age 14 worked in agriculture, while trade and manufacturing represented 12.2 percent and 5.5 percent, respectively, of the overall child labor rate.
Several labor organizations and NGOs reported that child labor in the formal-employment sectors continued to decline. According to these groups, it was rare in virtually all formal-sector industries due to an increased number of government inspections, improved enforcement of government regulations, and self-enforcement by the private sector. For example, in the past several years, banana producers working with the Ministry of Agriculture and unions on a plan to eliminate child labor formed committees to certify when plantations used no child labor. These certification procedures do not apply to the informal sector.
Child labor remained a problem in the informal sector. In rural areas children were most likely found working in family-owned farms or businesses, including banana and rose farms. Labor organizations reported that children were largely removed from the most heavy and dangerous work. Additionally, there were reports of rural children working in small-scale, family-run brick-making and gold-mining operations. In urban areas many children under age 15 worked informally to support themselves or to augment family income by street peddling, shining shoes, or begging.
The law and regulations prohibit discrimination regarding race, sex, gender, disability, language, sexual orientation, and/or gender identity, HIV-positive status or other communicable diseases, or social status. The law prohibits employers from using discriminatory criteria in hiring, discriminating against unions, and retaliating against striking workers and their leaders. The government did not effectively enforce those laws and regulations.
Employment discrimination against women was prevalent, particularly with respect to economic opportunities for older women and for those in the lower economic strata. On October 4, El Telegrafo reported that the Ministry of Labor received 347 complaints from employees about workplace harassment between 2015 and 2017. On August 24, the National Assembly approved a series of labor reforms for employees in the public and private sectors to prevent workplace harassment.
On May 7, El Comercio newspaper reported the average income of women was 27 percent lower than that of men. In December 2016 Los Andes online media outlet cited a study by the Ipsos Ibid Consultancy noting that only “one in 10 general managerial positions was occupied by a woman in Ecuador, while in positions such as vice presidencies the percentage was 20 percent.” On March 1, INEC published the results of an ENEMDU survey that reported nationally 5.5 percent of women in the economically active population were unemployed, while among men, unemployment was 3.6 percent. On June 20, El Telegrafo reported that Afro-Ecuadorians continued to demand more opportunities in the workforce and complained that employers often would profile them based on their job application photographs. Indigenous and LGBTI individuals also experienced employment discrimination.
e. Acceptable Conditions of Work
The minimum monthly wage was $375. Additional benefits mandated by law correspond to 40 percent of this salary. The official poverty level was $85.58 per month, and official extreme poverty level was $48.23 per month. According to official statistics published in June, 23.7 percent of the population lived at or below the poverty level, and 8.6 percent lived at or below the extreme poverty level.
The law limits the standard work period to 40 hours a week, eight hours a day, with two consecutive days of rest per week. Miners are limited to six hours a day and may only work one additional hour a day with premium pay. Premium pay is 1.5 times the basic salary for work done from 6 a.m. to 12 p.m. Work done from 12 a.m. to 6 a.m. receives twice the basic salary, although workers whose standard shift is at night receive a premium of 25 percent instead. Premium pay also applies to work on weekends and holidays. Overtime is limited to no more than four hours a day and a total of 12 hours a week. Mandatory overtime is prohibited. Workers are entitled to a continuous 15-day annual vacation, including weekends, plus one extra day per year after five years of service. Different regulations regarding schedule and vacations apply to live-in domestic workers. The law mandates prison terms for employers who do not comply with the requirement of registering domestic workers with the Social Security Administration. The law provides for the health and safety of workers and outlines health and safety standards, which were current and appropriate for the country’s main industries. These regulations and standards were not applied in the informal sector, which employed more than 53 percent of the population.
The 2016 Organic Law for the Promotion of Youth Work, Exceptional Regulation to the Working Day, Severance, and Unemployment Insurance provides that Social Security contributors who lose their job may opt for withdrawing their individual severance funds. Alternatively, the law provides the option of using the government’s unemployment insurance, which includes a monthly payment for five months’ equivalent to between 50 and 70 percent of the contributor’s monthly average salary over the 12 months prior to the contributor’s dismissal.
Enforcement of labor laws is the responsibility of the Ministry of Labor and the Social Security Administration. The government’s 134 inspectors enforced all labor laws, including those for child labor.
Authorities may conduct labor inspections by appointment or after a worker complaint. If a worker requests an inspection and a Ministry of Labor inspector confirms a workplace hazard, the inspector then may close the workplace. Labor inspections generally occurred because of complaints, not as a preventive measure, and inspectors could not make unannounced visits. In some cases violations were remedied, but other cases were subjected to legal challenges that delayed changes for months. Penalties were limited to monetary fines between $950 and $6,360; they were not sufficient to deter violations and were often not enforced.
The Ministry of Labor continued its labor rights enforcement reforms by increasing labor inspections and increasing the number of workers protected by contracts, minimum wage standards, and registration for social security benefits.
Most workers worked in the large informal sector and in rural areas. They were not subject to the minimum wage laws or legally mandated benefits. Occupational health and safety problems were more prevalent in the large informal sector. The law singles out the health and safety of miners, but the government did not enforce safety rules in informal small-scale mines, which made up the vast majority of enterprises in the mining sector. Migrants and refugees were particularly vulnerable to hazardous and exploitative working conditions.
Workers in the formal sector could generally remove themselves from situations that endangered health or safety without jeopardy to their employment, and authorities effectively protected employees in this situation. Workers in the informal sector received far fewer labor protections, and they were less likely to be able to remove themselves from dangerous health or safety situations without jeopardy to their employment.