Effect given to the recommendations of the committee and the Governing Body - Report No 363, March 2012

Effect given to the recommendations of the Committee and the Governing Body

1. 33. The Committee last examined this case at its November 2010 meeting [see 358th Report, paras 43–46], when it asked the Government to provide without delay the information requested in recommendations (a), (d) and (e), specifically:
   • – As regards the declaration as illegal of a strike called at ECOPETROL on 22 April 2004, the Committee, while reiterating its considerations expressed on many occasions, must again urge the Government, in consultation with the representatives of workers’ and employers’ organizations, to take steps without delay to send a proposal to the legislative authority with a view to amending the legislation (section 430(h) of the Substantive Labour Code) in order to define the conditions for the exercise of the right to strike in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service involving the participation of the trade unions, the employer and the public authorities concerned. The Committee requests the Government to keep it informed of all the relevant developments in the legislation;
   • – The Committee invites the complainant organization to provide the Government with all the information in its possession concerning the allegations that ECOPETROL grants benefits, better working conditions or bonuses individually to non-unionized workers, encouraging them to give up trade union membership, and requests the Government to take the necessary steps, as a matter of urgency, to carry out an independent investigation in order to determine on the basis of complete information whether the allegations are true. The Committee requests the Government to keep it informed in this respect; and
   • – As regards the allegations relating to the refusal of Chevron Petroleum Company to bargain collectively with the trade union, the appointment of a Compulsory Arbitration Tribunal and the appeal for annulment of the arbitral award lodged by the company and the trade union in the Supreme Court of Justice, the Committee requests the Government to keep it informed of the pending administrative investigation into the company.
2. 34. In its communication dated 21 December 2010, the Government states that the Labour Chamber of the High Court of the District of Cúcuta handed down ruling No. T-1936/10 dated 22 July 2010, which (1) revokes in its entirety the ruling handed down on 4 June 2010 by the Third Labour Court of the Cúcuta Circuit and instead accords the plaintiffs the court’s protection in respect of their fundamental right to work, to freedom of association, to join trade unions and to strike, which the enterprise Empresa Colombiana de Petróleos (ECOPETROL SA) infringed by refusing to comply with the recommendations of the ILO Committee on Freedom of Association; and (2) orders the enterprise, through its legal representative and within 48 hours of notification of the court’s ruling, to proceed with the reinstatement of the workers, who had been dismissed for taking part in the 22 April 2004 strike, in the same posts as they had held previously, or in posts of an equal or higher grade, and to grant them the wages and benefits that they had ceased to receive, as if for all legal purposes there had been no interruption in their employment relationship with the enterprise, and as if the disciplinary proceedings that were initiated by the enterprise and led to the termination of the workers were null and void. The Government adds that, on 26 July 2010, the enterprise and the Petroleum Industry Workers’ Trade Union (USO) agreed not to resort to legal action against the abovementioned ruling, and to set up an induction and reinstatement programme to promote the working lives of the workers covered by the ruling. In its communication dated 22 February 2011, the Government also states that Order No. 004311 of the Attorney-General’s Office created scope for dialogue between the Attorney-General and the trade union with a view to putting an end to trials and sanctions and the sanctions imposed on the workers. On 24 September 2010, the High Court of Cúcuta announced injunction No. T-2005/10 ordering the enterprise to reinstate other workers. The Government emphasizes that the parties will continue to negotiate to resolve the cases of workers who are still dismissed, namely, five Cartagena workers.
3. 35. The Committee notes with interest the above information and requests the Government to keep it informed of changes in the status of those five workers. Furthermore, the Committee observes that neither the complainant organization nor the Government has replied to its earlier recommendation in which it: (1) invited the complainant organization to provide the Government with all the information in its possession concerning the allegations that ECOPETROL grants benefits, better working conditions or bonuses individually to non-unionized workers, encouraging them to give up trade union membership; and (2) requested the Government to take the necessary steps, as a matter of urgency, to carry out an independent investigation in order to determine on the basis of complete information whether the allegations are true. The Committee reiterates this recommendation.
4. 36. In its communication dated 25 October 2011, concerning the refusal of Chevron Petroleum Company to bargain collectively with the trade union, the appointment of a Compulsory Arbitration Tribunal and the appeal for annulment of the arbitral award lodged by the company and the trade union in the Supreme Court of Justice, the Government states that no labour administration inquiry was conducted, bearing in mind that the Ministry of Social Protection, through Decision No. 003404 of 20 September 2006, ordered the establishment of a Compulsory Arbitration Tribunal tasked with settling the dispute. The Tribunal was then set up and duly started operations. Given the above information, the Committee requests the Government to confirm that the appeal for annulment of the arbitral award lodged by the company in the Supreme Court of Justice was rejected.
5. 37. Lastly, the Committee observes that the Government has provided no information on the Committee’s recommendation urging it, in consultation with the representatives of workers’ and employers’ organizations, to take steps without delay to send a proposal to the legislative authority with a view to amending the legislation (section 430(h) of the Substantive Labour Code) in order to define the conditions for the exercise of the right to strike in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service involving the participation of the trade unions, the employer and the public authorities concerned. The Committee reiterates this recommendation and requests the Government to keep it informed in this respect.