Informe definitivo - Informe núm. 202, Junio 1980

1. 243. The Workers' Trade Union of Cano Isaza and Co. Graphic Arts "El Spectador" presented a complaint for violation of trade union rights in Colombia in a communication dated 4 December 1979. It sent additional information in support of its complaint in a communication dated 28 January 1980. The Government has since sent its observations in a communication of 16 April 1980.
2. 244. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of the complainant organisation

1. 245. The complainant organisation refers to dismissals of trade union leaders and militants by the printing company Cano Isaza and Co. and wishes to cancel a collective accord which governs the labour relations between non-unionised workers and the undertaking.
2. 246. The dispute allegedly began over technical modifications to the newspaper and periodicals production process which resulted in an increase in the responsibility and length of work.
3. 247. On 12 December 1978, the workers requested a meeting with the management with a view to obtaining better working conditions, and believing this was going to take place, they went to the undertaking's amphitheatre to voice their claims. The management then called on the Minister of Labour to have it noted through an inspector that the workers had left their posts. The management is also alleged to have consequently called a three days' lock-out.
4. 248. In an effort to weaken trade union resistance within the undertaking, in June 1979 the management is said to have dismissed three leaders of the National Press Association and to have pressured militant trade unionists to incite them to resign from the trade union by giving special bonuses to non-trade unionists. The management is also said to have fired the 50 trade unionists who refused to leave the trade union.
5. 249. In addition, the complainants allege that the management tried to impose on the workers a collective accord which aimed at terminating the trade union freedoms granted by law within the undertaking, particularly the rights to join together, to claim one's rights and to request wage increases. It allegedly threatened to dismiss these who refused to sign and offered special bonuses to others.
6. 250. The complainants state that on 2 November 1979, the workers were informed that the collective accord proposed by the management had been signed by two journalists and a photographer representing the 15 non-unionised workers of the undertaking. On the same day, the trade union denounced the collective agreement in force and direct negotiation was entered into with the management over a log of claims containing 46 points prepared by a general assembly of the workers. On 13 January 1980, the management refused to allow these claims. In the meantime, on 26 November 1979, the complainants brought an appeal against the deposition of the accord which, in their opinion, had been passed in violation of legal standards.

B. The Government's reply

1. 251. The Government explains that the work stoppage on 12 December 1979 had been illegal as was stated by a labour inspector in the course of a regular visit. The management dismissed several workers who had participated in the work stoppage after the Labour Ministry had authorised this action as conforming with the law. The Government points out that protection of trade union leaders only applies when they carry out their functions legally and not when they direct a work stoppage which has been declared illegal by the Ministry. However, those involved have the possibility of appealing in a contentious-administrative process for the cancellation of the administrative resolution adopted by the Labour Ministry.
2. 252. As for the second point, according to the Government, that the head of the Division for Collective Labour Relations legitimately accepted the deposition of the collective accord between the Cano Isaza and Co. undertaking and its non-unionised workers on 26 November 1979. In fact, this accord had been adopted in conformity with the provisions of section 47, and following, of Decree No. 1469 of 1978 which regulates this. A general assembly of non.-unionised workers was held on 23 October 1979, and on 31 October 1979 a new assembly elected the negotiators who were recognised as having the right to sign the accord which was the outcome of the log of claims. The Government states that on 7 November 1979 the undertaking had 993 workers of whom 13 were members of the Asoprensa Union and 268 belonged to the first-degree union. Moreover, 680 workers adhered to the collective accord applying section 481 of the Labour Code. The Government points out that the appeal brought by the president of the union against the deposition of the accord has not been heard and that the matter is before the Director General of Labour in conformity with the administrative procedure in force. The Government states that section 46 of Decree No. 1469 provides that undertakings which have signed agreements with trade unions representing more than a third of the workers may not sign a collective accord. This implies, on the other hand, that if the union represents less than one third of the workers, it is possible for the undertaking to enter into the collective accord with non-unionised workers.

C. The Committee's conclusions

1. 253. This case essentially concerns the alleged dismissal of trade union leaders and militants and an appeal for cancellation of a collective accord, signed by the management and the non-unionised workers of the Cano Isaza and Co. undertaking, brought by the complainant organisation.
   • (a) Allegations relating to the dismissal of trade union leaders and militants
2. 254. It appears from the information available that, as concerns the dismissal of three trade union leaders and militants, the version of the complainants and that of the Government are totally contradictory. Nevertheless, the Committee notes that those concerned were dismissed, according to the Government, for having participated in a half day's work stoppage which had been declared illegal by the authorities, although the complainants deny that such action took place. The Committee wishes to point out, as it has done in previous cases relating to Colombia,& that general labour relations could be greatly improved if the employers concerned gave serious consideration to the possibility of reinstating the persons affected. On the other hand, the Committee has already drawn the attention of the Government to the risks of abuse and threats to freedom of association involved in dismissals arising out of strikes and expressed the view that the adoption of an inflexible attitude in the application of excessively severe sanctions to workers who had participated in a strike could impair the development of labour relations. In the present case, the Committee notes that even if the authorities had observed a work stoppage, it only lasted for half a day. The Committee accordingly considers that it would be appropriate for the Government to take measures with a view to aiding the re-establishment of the dismissed workers.
   • (b) The collective accord
3. 255. The Committee has already examined the provisions governing the question of collective accords on two previous occasions. These agreements govern the labour relations between the undertaking and its nor.-unionised workers.
4. 256. The Committee has recalled that Article 4 of Convention No. 98 (ratified by Colombia) invites governments to take appropriate measures to "encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements". Recommendation (No. 91) concerning Collective Agreements, 1951, in section 2 defines the term collective agreements to mean an agreement concluded between employers and representative workers' organisations or "in the absence of such organisations, the representatives of the workers duly elected and authorised by them". The Committee has observed that these standards give preference, as far as one of the parties to the collective bargaining is concerned, to workers' organisations. Recommendation No. 91 mentions non-organised workers' representatives only in the absence of such organisations.
5. 257. The Committee considered that direct bargaining carried out between the undertaking and its personnel, not taking account of existing representative organisations, could, in certain cases, be contrary to the principle that collective bargaining between employers and workers' organisations must be encouraged.
6. 258. In the present case,-the Committee notes the documentation attached to the complainants' communication from which it appears that employer pressure may have been exerted on the workers to force them to resign from the union and sign the collective accord. The accord contained inducements, in particular the grant of bonuses to those who signed before 20 November 1979 (sections 18 and 26), and a circular distributed by the management later gave the same bonuses with retroactive effect to those who signed before 31 December. In addition, those who adhered to it could not retire without the approval of the undertaking (section 2) and the signatories could neither present collective petitions to the management, nor engage in collective disputes, nor benefit from agreements signed by the undertaking and its trade unions such as they are in force (section 25).
7. 259. The Committee notes that discriminatory methods used by the employer to force signature of the accord seems to conflict with section 61 of Legislative Decree No. 1469 of 1978 according to which the existence of a collective accord may not interfere with the principle of equal pay for equal work where the post, length of day and conditions are effectively equal.
8. 260. In these circumstances, the Committee considers that direct bargaining carried out between the undertaking and its personnel which resulted in a collective accord dated 31 October 1979, without account being taken of the two trade union organisations representing the workers in the undertaking has not, in this case, conformed with the principle that collective bargaining between employers and workers' organisations must be encouraged and promoted.
9. 261. In the present case, the Committee also notes that, according to the complainant, the undertaking induced workers to leave the trade union so as to be able to sign the collective accord and dismissed those who refused to do so. In this regard, the Committee notes that by section 46 of Legislative Decree No. 1469 an undertaking may sign a collective accord with non-unionised workers if the union represents less than one-third of the workers. The Committee considers generally that such a provision could allow the risk of encouraging acts of anti-union discrimination aimed at reducing the number of unionised workers so as to be able to conclude a collective accord.