Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 11 and 12 of the Convention. Protection of wage claims in the event of bankruptcy and the payment of wages at regular intervals. The Committee notes that, once again, trade union organizations have brought to its attention problems relating to the preferential treatment of workers’ wage claims in the event of the bankruptcy of the employer, as well as problems relating to the payment of wages at regular intervals. More specifically, the Committee notes the Government’s reply to the comments of the Colombian Association of Airline Pilots (ACDAC), dated 25 May 2007. The ACDAC previously drew attention to the alarming situation of the Airline Pilots’ Provident Fund (CAXDAC) and its growing deficit which is due to the fact that, for many years, the Government has not prevented airline companies which have not paid their contributions from filing for bankruptcy without having first paid all outstanding contributions to the Fund. In its reply of 6 March 2008, the Government indicates that, after requesting information from the various regional directorates concerning the investigations carried out for non-payment of contributions due to the CAXDAC, it was found that no investigation is under way at the administrative level with regard to the events alleged by the ACDAC. The Government also indicates that it is awaiting further information from the supervisory authority for ports and transport. The Committee requests the Government to keep the Office informed of its further actions and any developments in this regard and to provide the above information as soon as possible.

The Committee also notes the comments submitted by the Union of Maritime and Inland Water Transport Workers (UNIMAR) dated 14 April 2008 and sent to the Government on 7 August 2008. UNIMAR once again refers to the liquidation process of the Merchant Navy Investment Company SA (formally the Grand Colombian Merchant Navy SA) and emphasizes that the liquidator’s advisory board, with the authorization of the Supervisory Authority for Companies, gave the order not to pay the 18 sailors whose employment contracts had been suspended since September 1997, the wages, social benefits and compensation owed to them. UNIMAR adds that 16 final court decisions have ordered that the illegally suspended employment contracts be restored and that the related wages and social benefits be paid, with an order to attach the accounts of the enterprise, which no longer contain any funds allowing the payment of the workers’ claims. The Supervisory Authority for Companies and the former liquidator had assured the Constitutional Court that the rights of the workers would be respected, ordering the payment of wages and social benefits for 2003. UNIMAR indicates that the Government, instead of executing the court decisions, dismissed the workers without paying them the wages and social benefits owed to them. In this regard, the Committee notes the information provided by the Supervisory Authority for Companies and transmitted by the Government in a communication dated 30 April 2009. With regard to the above final court decisions, the Supervisory Authority for Companies indicates that the proceedings are pending before the national courts and that the legal rulings handed down by the magistrates responsible for the enforcement of sentences have been transmitted, firstly, to the magistrate responsible for the liquidation and, secondly, to the liquidator so that the payment of the wages, social benefits and compensation can be made, in accordance with the principle of proportionality. The Committee requests the Government to keep the Office informed of any developments in this regard, and in particular to indicate whether the payments have been made and whether the dispute has been resolved.

Furthermore, the Committee notes the comments made by the National Union of Workers of the Enterprise Administradora de Seguridad Limitada (SINTRACONSEGURIDAD) received on 15 August 2008 and recalls that it has already issued an opinion on this point, as raised by the Government in its reply dated 4 November 2008. In so far as the former workers of the company CONSEGURIDAD have exhausted all the legal remedies available, they have to comply with court decisions which have the effect of res judicata. The Committee once again recalls that it has no power to intervene in the operation of the national judicial authorities, particularly in the manner in which they have adjudicated.

Finally, the Committee notes that the Government does not provide any new information concerning the settlement of the wages owed to the employees of the public hospital San Juan de Dios following the comments made in March 2006 by the National Association of Health, Social Security and Allied Service Workers and Public Employees (ANTHOC). The Committee once again requests the Government to keep the Office informed of any settlement of the dispute or any progress made to that end.