Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 335, Noviembre 2004

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

1. 66. The Committee last examined this case at its March 2004 meeting [see 333rd Report, paras. 41-43]. On that occasion, The Committee noted that the text of Decision No. 000759 issued by the territorial directorate of Atlántico, implied that there was a disparity in the wages paid to the different workers working in the same departments at the Hilazas Vanylon Enterprise S.A. Although the Committee had no other facts at its disposal, it requested the Government to ensure that workers at the enterprise were not discriminated against with regard to wages because of their trade union membership, and to keep it informed of any steps taken in this respect.
2. 67. In its communications of 17 July and 19 August 2003, the complainant sent new allegations. Basically, it alleges that the employers have made use of new methods of recruitment; firstly, through temporary employment agencies and now through workers’ cooperatives, in order to obstruct freedom of association, the right to present petitions and the right to strike. In particular, in the case of the enterprise Fabricato Tejicondor, it is alleged that, following the merger of these two enterprises, there was a violation of the law regarding the establishment of a single collective agreement for all the workers. The employers refuse to discuss the petition legally presented by SINALTHAHIDITEXCO in May 2003. The are using contracts drawn up with workers’ cooperatives (1,500 workers out of a total of 5,402 belong to cooperatives). The complaint also alleges that temporary employment agencies and workers’ cooperatives have been employed in connection with new labour contracts in the enterprises Coltejer and Textiles Rionegro. The complainant also alleges that in the case of the enterprise Riotex, part of the Fabricato group, unionized workers have not benefited from the 7.49 per cent rise since 16 July 2003 and that, of a total of 540 workers, over 300 belong to cooperatives. The complainant organization alleges that there is victimization and anti-trade union discrimination within the enterprise Leonisa, as well as violation of collective bargaining and the use of contracts drawn up with cooperatives. Finally, the complainant organization alleges that, within the enterprise Everfit-Indulana, contracts are drawn up with cooperatives and unionized staff members are subject to victimization.
3. 68. In its communication dated 12 May 2004, in relation to the enterprise Fabricato Tejicondor and the establishment of a collective labour agreement in order to facilitate the merger of the two enterprises, Fabricato and Tejicondor, the Government states that, in accordance with article 38 of Decree No. 2351 of 1995, any collective labour agreement entered into with a trade union which counts more than one-third of the workforce of an enterprise amongst its membership is extended to cover all staff members, including, of course, both the members of the main trade union signatory to the agreement and the members of the less representative trade unions, as well as those non-unionized staff members. In accordance with the information provided by the enterprise, the main trade union is SINDELHATO, to which over 50 per cent of the workforce belongs, whilst SINALTHAHIDITEXCO and the Clothing Workers’ Trade Union of Colombia (SINTRATEXTIL) have many fewer members, not even representing one-third of the workforce. The Government argues that, as a consequence, the collective agreement in force within the enterprise is that which was signed with SINDELHATO, and which expires in April 2005. This is why the allegation regarding the refusal to accept the SINTRATEXTIL petition is inconsistent. The Government also states that the Committee of Experts has not made any observations whatsoever with regard to the aforementioned Decree.
4. 69. As to the signing of service contracts with workers’ cooperatives in the various enterprises cited by the complainant, the Government states that, through Ruling C-211 of March 2001, the Constitutional Court stated that:
   • ... workers’ cooperatives belong to the specialized category and have been defined by the legislator in the following terms: workers’ cooperatives are those which organize the labour capacity of their members for the production of goods, carrying out of work or the provision of services. Members mainly contribute to this kind of organization in terms of their labour, given that contributions in the form of capital are minimal. (…) There is no subordination relationship between associates. In a social democracy such as ours, in which labour and solidarity play a vital role in achieving a just social and economic order, organizations based on association and solidarity enjoy full constitutional backing. (…) It is not only contractual labour activity that is covered by the basic right to work. Free, non-contractual labour, carried out independently by individuals, falls within the core of the basic right to work.
   • The Government states that, as a consequence of the Constitutional Court’s statement, it is clear that workers’ cooperatives should be accorded the same legal and constitutional protection as contractual labour, perhaps more given that the principle of solidarity between their members is put into practice (a principle far removed from labour law). The cooperative members are their own bosses and their system of payment is as legitimate as that envisaged by the Labour Code with regard to contractual labour. In its communication of 1 September 2004 sent as part of Case No. 2239, which also deals with cooperative workers, the Government adds that cooperatives in Colombia have their own organization for the defence of their rights and interests, i.e. the National Confederation of Cooperatives (CONDEFECOOP). The Government emphasizes that only employers and persons who are party to an oral or written work contract may organize in trade unions. Other persons who exercise activities that are not undertaken under a work contract may organize in other type of associations, as guaranteed by article 38 of the Political Constitution.
5. 70. As to the wage increase within the enterprise RIOTEX which, according to the corresponding allegation, was not extended to unionized workers, the Government states that the enterprise has confirmed that the wage increase, of 8 per cent, was applied to all workers, both unionized and non-unionized. As to the allegation that 300 of the 450 workers are members of cooperatives, the Government states that this situation is in accordance with the provisions of the Political Constitution and the aforementioned declarations of the Constitutional Court.
6. 71. With regard to the allegations of anti-trade union victimization and violation of the collective agreement within the enterprise Leonisa, the Government argues that those allegations are too general in nature and that the complainant organization should be more specific in order that the Government can answer its claims. As to the allegations regarding the enterprise Everfit-Indulana, the Government reiterates that the allegations are not specific and that the complainants should take their case to the national authorities before turning to the ILO.
7. 72. As to the allegation regarding the signing of service contracts with workers’ cooperatives in the various enterprises mentioned by the complainants (Fabricato Tejicondor, Coltejer and Textiles Rionegro, Riotex, Leonisa, Everfit-Indulana), and therefore obstructing freedom of association, the right to present petitions and the right to strike, the Committee notes that the Government states that the Constitutional Court announced that both contractual labour and labour carried out on an independent basis by individuals are protected by the basic right to work. According to the Government, as a consequence it is clear that workers’ cooperatives should be accorded the same legal and constitutional protection as contractual labour, their members being their own bosses and their system of payment being as legitimate as that envisaged by the Labour Code with regard to contractual labour. The Committee notes, however, that the Government states that only employers and persons bound by a written or verbal labour contract may organize in trade unions and that other persons may organize in other types of associations. Taking into account the information provided by the Government, and mindful of the particular characteristics of cooperatives, the Committee considers that associated labour cooperatives (whose members are their own bosses) cannot be considered, in law or in fact, as “workers’ organizations” within the meaning of Article 10 of Convention No. 87, that is organizations that have as their objective to promote and defend workers’ interests. That being so, referring to Article 2 of Convention No. 87 under which workers and employers have the right to establish organizations of their own choosing, the Committee recalls that the concept of worker means not only salaried worker but also independent or autonomous worker. The Committee considers that workers associated in cooperatives should have the right to establish and join organizations of their own choosing. The Committee therefore requests the Government to take the necessary measures to amend the legislation accordingly, and to keep it informed of developments in this respect.
8. 73. Concerning the allegations regarding the establishment of a single collective agreement within the enterprise Fabricato Tejicondor, the Committee notes that the Government states that article 38 of Decree No. 2351 of 1995, providing that any collective labour agreement entered into with a trade union which counts more than one-third of the workforce of an enterprise amongst its membership is extended to all staff members. According to the Government, the main trade union is SINDELHATO, to which over 50 per cent of the workforce belongs, whilst SINALTHAHIDITEXCO and the Clothing Workers’ Trade Union of Colombia (SINTRATEXTIL) together have many fewer members; as a consequence, the collective agreement in force within the enterprise is that which was signed with SINDELHATO, and which expires in April 2005.
9. 74. As to the allegation that within the enterprise Riotex, a part of the Fabricato group, unionized workers have not benefited from the 7.49 per cent rise since 16 July 2003, the Committee notes that, according to the Government, the enterprise has announced that the wage increase was of 8 per cent and was applied indiscriminately to all workers. The Committee request the Government to carry out an inquiry into the matter and, should the allegation be substantiated, to ensure that unionized workers be paid the appropriate sum owed and to keep the Committee informed in this respect.
10. 75. Regarding the allegations of anti-trade union victimization and violation of the collective agreement within the enterprises Leonisa and Everfit-Indulana, the Committee notes the Government’s statements on the overly general nature of the allegations and invites the complainant to send more detailed information in this respect.
11. 76. Finally, the Committee requests the Government to keep it informed as to the measures adopted to prevent any discrimination regarding staff working at the Hilazas Vanylon Enterprise S.A.