Ecuador Update: Know the Regulations that Regulate the Approval Procedure

Technical Regulations that Regulate the Approval Procedure Interposed by Workers and Employers before the MDT

Next, we present the main provisions contained in the Technical Regulations that Regulate the Procedure of the Approval Interposed by Workers and Employers before the MDT, published by Ministerial Agreement No. MDT-2021-189 of May 19, 2021, applicable to the public and private sector workers and employers subject to the Labor Code.

1. Of the competition and excuse or challenge:

The competent Labor Inspector to hear the request for Approval will be that of the territorial district of the place where the employment contract was signed or, exceptionally, of the place where the provision of the service is carried out.

If the Labor Inspector who has advocated knowledge is immersed in any of the causes provided in the General Organic Code of Processes, such as having a relationship of consanguinity or affinity with any of the parties or a relationship of friendship or enmity, among others, You must excuse yourself before the Regional Director of Labor and Public Service within 24 hours of receiving the process.

In the event that the inspector has not presented an excuse, any of the parties may request their formal challenge before the aforementioned authority, who must resolve it within 48 hours.

If the excuse or challenge is accepted, the Regional Director of Labor and Public Service will designate another inspector within 24 hours.

1. From the Okay procedure:

1. From the request:

The request for Approval must be addressed to the Labor Inspector and must contain the requirements specifically established in the Ministerial Agreement.

The possibility of accumulating ex officio or at the request of a party, two processes presented between the same employer or worker in the same jurisdiction is established.

1. From the notification:

Once the request is received, the assigned inspector will acknowledge, qualify the request and order that the notification be made at the workplace or domicile of the defendant, without prejudice to the electronic notification for informational purposes.

The notification will suspend the prescription terms and will be carried out in accordance with the rules established in the Ministerial Agreement for this purpose.

1. From the reply:

Once the party has been notified, they will have a period of 2 days to reply. The answer must comply with the requirements of the application as applicable and, with or without it, the process will continue. 

1. From the conciliation:

Once the answer has been received, within a maximum term of 3 days, the inspector will set the date and time for a conciliation procedure. In case of reaching an agreement, the parties will sign a transactional act that ends the process and the inspector will order the file that same day, as well as the return of the consigned value.

If both parties accept it, the diligence may be suspended and the process referred to a qualified Mediation Center. The inspector must set a term for the resumption of the process, observing that the total term of substantiation does not exceed 30 days. If a mediation agreement is reached, it must be presented to the inspector for the same purposes.

1. From the investigative audience:

If an agreement is not reached in the conciliation phase, the investigation hearing will necessarily continue before another labor inspector. If there are not two inspectors available, the Regional Director of Labor and Public Service will refer the process to the inspector of the nearest delegation.

The Regional Director or his delegate will set the day and time for the hearing and will notify the parties at least 48 hours in advance. The responsible inspector will be designated by lottery a maximum of 24 hours before the hearing.

The investigative hearing may be suspended due to: (i) unforeseeable circumstances or force majeure that affects its development; (ii) at the joint request of the parties; and, (iii) to require the inspector to carry out an evidentiary diligence that cannot be carried out during the hearing. If a party does not attend the reinstatement, they will proceed in absentia, and if the inspector does not reinstate the hearing or has suspended it without reason, he will be sanctioned.

1. Of the resolution and challenge:

The parties may reach a conciliation agreement at any time before the resolution of the process, which must be presented to the inspector for the filing and return of the consignment.

Once the hearing has concluded, the inspector will qualify the cause and will resolve the process of Approval, accepting or denying the request orally at the same hearing. The written and motivated resolution will be notified in writing to the parties within the following 3 days.

The resolution of Okay may only be challenged before the competent Labor Judge.

1. General and Transitory Provisions:

Requests for Approval that are currently in process will not be modified and will culminate with the procedure under which they began. Within 90 days of the issuance of this agreement, all approval procedures will be carried out under this procedure.

The Okay Procedures maybe fully or partially substantiated by telematic means once the respective digital platforms are established, for which the MDT has a term of 45 days.

By Paz Horowitz Abogados, Ecuador, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact ecuador@transatlanticlaw.com

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