• Published in the Second Supplement to Official Gazette Nº 825, dated August 24, 2016.
• The aim of the agreement is to govern teleworking as a mechanism for rendering services in the private sector.
• Teleworking is a manner of rendering services from home during ordinary and special workdays, in which the worker performs activities outside of the employer’s facilities, provided the needs and nature of the work allow for this, making use of information and communication technologies for management, administration and control.

Teleworking could be:

• Full-time: when work is always performed outside of the employer’s facilities. The teleworker may go to the employer’s facilities when required by the employer.
• Part-time: Work is performed outside of the employer’s facilities up to a maximum of 24 hours per week, and the remaining hours are fulfilled in the employer’s facilities.
  The application of this form of rendering services is voluntary, and there must be a written agreement between the parties to implement this type of work. Teleworking may be included in the initial description of work, or it may be incorporated subsequently.
  This type of contract must include, in addition to the requirements established in the Labor Code, the following:
• A clear description of the work to be performed, conditions of performance, remuneration and other benefits, and information related to this type of work;
• Identification of the instruments to be used by the employer to supervise and control the work;
• Identification of the instruments to be used by the teleworker and determination of the party responsible for providing, installing and maintaining work equipment;
• The organizational unit that the teleworker belongs to, as well as an indication of the name and position of their immediate superior or other individuals who may be contacted regarding professional or personal matters;
• With regards to part-time teleworkers, the days in which the work will be performed under this regime, or the manner in which this is determined;
• Methods for presenting work reports; and,
• Other specifics regarding teleworking, depending on the work being performed.
• When a worker has become a teleworker, they may return to the modality of work initially agreed upon by agreement of the parties or at the request of one of the parties. In this case, save a contractual provision to the contrary, a minimum of 90 days must be respected for the teleworking commitment, and the communication to return to the initial modality of rendering services must be notified with at least 15 days’ anticipation to the other party.

Court Decision rejects the petitioner’s submission on procedural technicalities, and doesn’t reflect on the merits.

Any project in any industrial sector with potential environmental impacts should be consulted to communities as part of the licensing process (prior consultation). This is not the kind of consultation at issue; instead, petitioners resorted to the public consultation process, a mechanism contemplated for quite different political participation purposes.

Under the Ecuadorian Constitution (EC), public consultation requests should be approved by the Constitutional Court (CC) before the National Electoral Council calls for a local or national vote, in order to ensure that the subject matter proposition is consistent with constitutional provisions. Respondents -including mining companies, business associations, government agencies, business chambers and other stakeholders- argued thorough amicus curiae that public consultations should not be allowed by the CC to the extent it calls into question constitutional or legal rights or would otherwise contradict constitutional provisions. Also, to the extent a given consultation is not intended to amend the law -there is a very specific and qualified national process in that regard-, the CC must also ensure that consultation requests do not attempt to by-pass the legal constitutional process that would otherwise be necessary in order to change the legal framework.

In case 0002-19-CP, where the consultation’s question would have called fora vote on whether mining is accepted or not, the CC could have rule out, once and for good, public consultation requests of the sort, particularly as the EC provides for specific mechanisms of prior consultation designed to ensure community participation. The CC avoided dealing on the case merits and limited itself to reject the petition on legal standing grounds and further technicalities. Given this outcome, the industry should expect anti-mining groups to reformulate their legal approach and come back in the short term with a number of public consultation requests to be heard by the CC.

It should be stressed that the threat the mining industry is facing as a result of the abuse of the consultation mechanism may extend to any other industry, so it can be also expected that other business sectors will get organized and join the defence of the rule of law.

The mining industry has still a number of legal and communication initiatives to advance its cause and deal with the upcoming wave of political consultations, this time hopefully through a proactive strategy.

For more information and deeper understanding of this ruling or of the legal and political battle ahead, please contact INFO@TZVS.EC.