Informe provisional - Informe núm. 342, Junio 2006

373. The complaints appear in communications from the World Confederation of Labour (WCL) dated 31 August 2005.

1. 374. The Government sent its observations in a communication dated 21 February 2006.
2. 375. Colombia has ratified the Freedom of Association and Protection of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant organization’s allegations

1. 376. The World Confederation of Labour (WCL) alleges that various anti-union acts have been committed in several companies. The allegations are set out below.
2. 377. Schering Plough S.A. is using electronic mail to pressure workers into giving up the collective agreement concluded with the National Union of Workers of the Pharmaceutical and Chemical Industry (SINALTRAFARQUIM); it promotes temporary employment for workers with more than 12 years’ service and has carried out collective dismissals and brought pressure to bear on the workers to oblige them to give up their posts; and it has closed the sterile products facility and replaced the workforce contracted to work there by employees of parallel and satellite companies.
3. 378. Supertiendas y Droguerías Olímpica S.A. is not complying with clause 35 of the collective agreement concluded with the National Union of Workers of Supertiendas y Droguerías Olímpica S.A. (SINALTRAOLIMPICA), which stipulates that packers shall receive a minimum wage, plus a 1 per cent bonus and all other benefits, payments, overtime and holiday pay provided for by the law. The WCL states that, in order to cut costs, the company created a cooperative for minor workers. These children pay 14,000 Colombian pesos a month to be members of the cooperative and are assigned such heavy work schedules that they are unable to continue with their studies. They do not receive a wage, and depend entirely on tips from clients. They also have no social security. According to the WCL, the workers’ cooperative is being used to disguise the employment relationship so that the company does not have to comply with Conventions Nos. 87 and 98.
4. 379. When the Union of Workers of the National Apprenticeship Service (SINTRASENA) decided to opt out of 65 per cent of the existing collective agreement, the National Apprenticeship Service (SENA) stated that it intended to limit the new agreement to what was required by law and to do away with certain benefits.
5. 380. The authorities have refused Ms. María Gilma Barahona Roa registration as a member of the executive committee of the National Unitary Trade Union of Official Workers and Public Servants of the State (SINUTSERES) because the unit where she works is currently undergoing restructuring. This ignores the fact that the grounds for non-registration are clearly set out in the Labour Code.
6. 381. Since September 2003, the Cundinamarca branch of the Red Cross has unilaterally decided not to respect the package of benefits agreed upon with the Trade Union of Workers of the Red Cross (SINTRACRUZROJA), and which it has been paying since 1987. The workers have filed tutela proceedings (for the protection of their rights) which are currently pending.
7. B. The Government’s reply
8. 382. With regard to Schering Plough S.A., the Government states that the alleged facts are vague. Furthermore, the company says that it has never been the subject of an administrative labour inquiry for non-respect of the right of freedom of association. On the contrary, the company has concluded 14 collective labour agreements establishing quite favourable working conditions for the company’s workforce.
9. 383. According to the company, labour relations are excellent, in so far as the employers respect the right to organize and freedom of association and the workers respect the principle of free enterprise and the operational and hierarchical structure that is vital to any properly organized company.
10. 384. The Government also states that, according to the company, the latest collective labour agreement was signed on 22 November 2004, coming into force on 1 December 2004 and expiring on 30 November 2006, and it adds: “The agreement was the outcome of direct negotiations, conducted in an atmosphere of harmony, respect and good relations. None of the clauses of the agreement have been modified by the employer and working conditions have improved, in line with the financial equilibrium of the company and in the spirit of equity that must prevail in any collective bargaining.” The Government attaches copies of the minutes of the negotiations and of the collective labour agreement.
11. 385. Regarding the closure of the sterile products facility, according to the company, at the end of December 2004 the sterile facility had to be transferred to a Central American country for reasons linked to organization, productivity and globalization, rather than because of any intention to weaken the right to form trade unions and freedom of association; indeed the trade union organization continues to exist and to exercise its functions. Consequently, the company introduced a voluntary retirement programme, against which none of the workers taking up the offer lodged a complaint with the judicial authority. In order to clarify the situation further, the Government attached a copy of the record of the conciliation procedure signed by the workers and the company at the Ministry of Social Welfare. The Government also enclosed a report submitted by the BDM company to Schering Plough S.A. on the support, assistance and training provided to the workers who accepted voluntary retirement.
12. 386. The Territorial Directorate for Cundinamarca of the Ministry of Social Welfare launched an administrative labour inquiry into Schering Plough S.A. in response to a request made by Mr. Luis Orlando Velásquez, but the inquiry was shelved as a result of the conciliation agreement concluded between the company and the plaintiff. The Government attached a copy of the record.
13. 387. With regard to the allegations relating to non-compliance with clause 35 of the collective agreement by Supertiendas y Droguerías Olímpica S.A., the Government states that the Territorial Directorate for Atlántico of the then Ministry of Labour and Social Security carried out an administrative labour inquiry into the matter and ruled, in resolutions Nos. 00318 of 27 April 2000 and 00737 of 3 August 2000 that there were no grounds for imposing sanctions on Supertiendas y Droguerías Olímpica S.A. The decision of the Territorial Directorate was based on its conclusion that “the National Union of Workers of Supertiendas y Droguerías Olímpica S.A. (SINALTRAOLIMPICA) is not the legitimate representative of the interests of self-employed minor workers who, although providing services within the said company, are not members of this trade union organization – nor could they be since under the labour regulations the organization can only represent its own members; representation of the minor workers therefore comes under the Colombian Civil Code and the Minors’ Code”. The two resolutions were attached.
14. 388. The Government states that, according to the information provided by the Administrative Vice-Chairperson of Supertiendas y Droguerías Olímpica S.A., the post referred to in the complaint in question does not currently exist within the company. The title of this post is now General Services Assistant, a category that absorbed a number of posts whose titles were expressly abolished by the parties to the negotiation process, the trade union and the company. According to the Administrative Vice-Chairperson, the former post of “packer” bears no relation to the tasks carried out by the cooperative of minor packers, given that the former focuses on activities inside the company while the latter is intended for the clients.
15. 389. The Government adds that Colombia has no law prohibiting employers from creating cooperatives, which is why Supertiendas y Droguerías Olímpica S.A. became involved in setting up the Cooperative of Minor Workers (COOTRAMENOR), which was approved through resolution No. 000978 of 28 September 2000. The cooperative consists of young people who transport products purchased by clients to their vehicles; in other words they provide a direct service to the client and not to Supertiendas y Droguerías Olímpica S.A. The company financed the social security contributions for the members of the cooperative. The company also works with educational bodies to provide secondary education for members of the cooperative, who also have access to training programmes and to courses aimed at improving the social, cultural, employment and economic profile of minors. All of this contributes to their personal growth and protection within the community through decent, honest work.
16. 390. Regarding the SENA, the Government states that the WCL is unclear in its presentation of the facts involved in its complaint. On the one hand, it says that it was SINTRASENA that denounced the collective labour agreement with SENA and, on the other, it encloses annexes showing that it was denounced by SENA.
17. 391. The Government observes that, in accordance with the Supreme Court of Justice’s ruling of 22 November 1984, reiterated in its ruling of 27 September 1993, “the denunciation of collective labour agreements, and by extension that of arbitration awards, is a right granted by law to the parties to terminate an agreement or award, but in fact they are not terminated until a new agreement has been concluded or an award has been handed down, as stipulated in article 14 of Decree No. 616 of 1954. When the denunciation is made by the workers, they must present their list of demands, which marks the start of the collective dispute; the dispute is resolved when a collective agreement is signed, or an award is handed down. When the denunciation is made by both parties, the negotiations on the list of demands are not subject to any previous agreements entered into by the parties in a collective agreement, or set out in an arbitration award. If it is the employer alone who denounces the agreement, it remains in force, and may be extended as provided for in the law, because employers cannot present lists of demands and therefore are not able to initiate a collective dispute that results in another collective agreement or in an award being made by a mandatory arbitration tribunal”.
18. 392. The Government adds that, in its ruling of 27 September 1993, the Supreme Court of Justice stated: “The denunciation of a collective agreement and the submission of a list of demands are different legal processes and serve a different purpose. Currently, the denunciation of a collective agreement does not have the legal effect of terminating the agreement, but only of advising the other party that the agreement is no longer considered a satisfactory instrument for regulating general employment conditions within the company. Consequently, the possibility arises of a collective dispute being conducive to a new ‘company law’; it does not have the effect, which it originally had under section 479 of the Labour Code, of terminating the collective agreement.”
19. 393. The Government concludes by stating that, in accordance with the communication signed by SENA’s human resources group coordinator, SINTRASENA has not to date denounced the collective agreement, which has therefore been extended six months at a time, as stipulated in the national legislation.
20. 394. As to the refusal by the authorities to register Ms. María Gilma Barahona Roa as a member of the executive committee following her election by the National Assembly of SINUTSERES to the post of controller (fiscal), the Government states that Ms. Barahona Roa works for the National Local Road Fund. The Fund is in the process of being liquidated, which is why the Territorial Directorate for Meta of the Ministry of Social Welfare has refused her registration as a member of the executive committee. The Directorate based its decision on the following:
21. – it is expressly forbidden for the legal representatives of a body in the process of liquidation to carry out activities involving the conclusion of collective agreements or any act which is not concerned with its liquidation; this ban applies from the moment the decree ordering the dissolution and liquidation of the body has been issued;
22. – workers who establish trade unions, set up union branches or elect executive committees within official bodies that are in the process of liquidation cannot exercise the right to freedom of association, inasmuch as the legal representatives of such bodies – i.e. their employers – are prohibited from concluding collective labour agreements or improving working conditions as, by law, they are not empowered to do so. In such cases official registration as a trade union is not considered appropriate, especially as the Ministry of Social Welfare is responsible for supervising and controlling the implementation of labour legislation and, in particular, collective labour law in the public and private sectors, as stipulated in sections 3 and 485 of the Labour Code.
23. 395. According to the Government, this is borne out by the fact that trade union immunity is a privilege enjoyed by workers, who may neither be dismissed nor demoted without just cause previously certified by a labour tribunal. As has been pointed out on previous occasions, the philosophy and democratic principle behind this rule is not stability of employment but the protection of the freedom of association as a fundamental right.
24. 396. Regarding the allegations of non-respect of the package of benefits, the Government states that, according to the legal representative of the Red Cross, under Colombian legislation the benefits referred to in the complaint are in fact supplementary benefits that were unilaterally recognized by the organization in the case of some of its collaborators but were never included in the collective agreement or incorporated into labour contracts. Consequently, the employer was entitled to cease applying them at any time. Moreover, although the trade union organization presented the institution with a list of demands that included most of the extralegal benefits contained in the package in the hope of having them written into the collective agreement, no agreement was reached. Consequently, a Compulsory Arbitration Tribunal was convened which handed down an arbitration award on 15 November 2001. Article 4 of the award states: “All the extralegal benefits contained in the package of services and benefits may be granted to the employees by the employer only if financial, economic and administrative circumstances so permit; the employer may at any time amend, modify, increase or cancel the said benefits, based on the institution’s financial, economic or administrative prospects.”
25. 397. The Government states that the trade union organization lodged an appeal for annulment of the award that was turned down by the Supreme Court of Justice, which concluded that, given the critical economic condition in which the institution found itself, it would be impossible to impose any additional financial burden which might jeopardize the very existence of the employer.
26. 398. Consequently, taking into account the financial and economic difficulties that the institution was facing and which the workers were fully aware of, it decided quite rightly to inform its workers it had no alternative but to cancel the package.
27. 399. The Government adds that the workers filed tutela proceedings (for the protection of their rights) and a ruling was handed down on 14 April 2005, when the complaint was rejected by the 16th Municipal Criminal Court, which considered that there had been no violation of the workers’ rights. The Government attached a copy of the ruling. The Territorial Directorate for Cundinamarca has now called for an administrative labour inquiry into the Red Cross for alleged violation of the collective labour agreement. The inquiry is under way.

C. The Committee’s conclusions

1. 400. The Committee notes that the present case refers to allegations presented by the World Confederation of Labour (WCL), according to which: (1) Schering Plough S.A. is putting pressure on workers through electronic messages, so as to give up the collective agreement signed with the National Union of Workers of the Pharmaceutical and Chemical Industry (SINALTRAFARQUIM), as well as promoting temporary employment, carrying out collective dismissals and closing one of the company’s facilities; (2) Supertiendas y Droguerías Olímpica S.A. is not complying with clause 35 of the collective agreement concluded with the National Union of Workers of Supertiendas y Droguerías Olímpica S.A. (SINALTRAOLIMPICA ), which stipulates that packers shall receive a minimum wage. Furthermore, the packers are minors and are not held to be employees of the company, as they are members of a cooperative which, according to the WCL, was set up as a means of avoiding compliance with the Conventions Nos. 87 and 98; (3) following the denunciation of the collective agreement by SINTRASENA, the National Apprenticeship Service (SENA) attempted to cancel existing benefits; (4) refusal to register a member of the executive committee of the National Unitary Trade Union of Official Workers and Public servants of the State (SINUTSERES) on the grounds that the unit where she works is in the process of liquidation and; (5) the Cundinamarca branch of the Red Cross is not respecting the package of benefits on which agreement had been reached.
2. 401. As to the allegations that Schering Plough S.A. is using electronic mail to pressure workers into giving up their collective agreement, promoting temporary work, carrying out collective dismissals and closing one of the company’s facilities, the Committee notes the information provided by the company to the Government, according to which the company has concluded 14 collective labour agreements, the latest of which was signed on 22 November 2004, following direct negotiations and without any collective dispute arising, and expires at the end of 2006. The Committee also notes, with regard to the closure of the company’s sterile facility, that this was in response to organizational requirements and was not carried out for anti-union reasons. Consequently, the company introduced a voluntary retirement programme against which none of the voluntary retirees lodged a complaint with the judicial authority. The Committee notes that the Government attaches a copy of the record of conciliation procedure signed by the workers and the company at the Ministry of Social Welfare, and a report submitted by a company working for Schering Plough S.A. on the support, assistance and training provided to the workers who accepted voluntary retirement. The Committee further notes that, according to the Government, an administrative inquiry into the company, initiated by one of the workers who had been dismissed, was shelved because a conciliatory agreement had been reached with the company.
3. 402. As to the pressure put on the workers through emails to denounce their collective agreement, the Committee considers that, given the information provided regarding a series of successful negotiations carried out within the company and the fact that there is currently a collective agreement in force which expires at the end of 2006, there are not in this particular case sufficient grounds to determine the existence of a violation of the trade union rights of the workers. In these circumstances, the Committee shall not proceed any further with its examination of this allegation.
4. 403. Regarding the promotion of temporary work, the closure of one of the company’s production facilities and the collective dismissal of workers, the Committee considers that, in these circumstances, it is not for it to give an opinion on these measures, to the extent that they do not, in themselves, constitute a violation of freedom of association. Nevertheless, the Committee recalls the importance of carrying out full and frank consultations with trade union organizations given the consequences that such measures, including closure of the enterprise, have in the social and trade union fields.
5. 404. As to the allegations that Supertiendas y Droguerías Olímpica S.A. has violated clause 35 of the collective agreement concluded with the trade union organization SINALTRAOLIMPICA, which sets the wage that is to be paid to merchandize packers, and that minors are being hired to perform this task and grouped together in cooperatives in order to avoid compliance with Conventions Nos. 87 and 98, the Committee notes that, according to the Government, the Ministry of Labour and Social Security carried out an administrative labour inquiry in April 2000 and found that there were no grounds for imposing sanctions on the company, as it considers that the organization does not have a legitimate mandate to represent the interests of self-employed minors who, although they provide their services within the said company, are not members of the trade union. The Government adds that, according to the company, the minors working in the cooperative provide a service which consists of transporting goods purchased by clients to their vehicles, and this service is thus provided directly to the client and not to the company. In this regard, the Committee first of all notes that there is a discrepancy between the accounts provided by the trade union organization and the company with regard to the worker status of the minors and as to whether they are covered by clause 35 of the collective agreement. While the trade union considers that the minors are working for the company and should thus be covered by the collective agreement, the Government states that, according to the company, the minors are self-employed workers who are members of a cooperative which Olímpica S.A. has helped to establish, they do not work for the company but provide a service for the supermarket’s clients, and the post of packer no longer exists within the company. The Government states that there are no regulations forbidding employees to establish cooperatives, and adds that, as the workers in question do not belong to the trade union organization, the latter does not have a legitimate mandate to present a complaint.
6. 405. The Committee recalls in general terms that Article 2 of Convention No. 87 stipulates that workers, without any distinction, have the right to establish and to join trade union organizations, the only exceptions being the police and the armed forces. The Committee therefore considers that the minor workers and those working in cooperatives should be allowed to form or join trade union organizations of their own choosing. In these conditions, the Committee requests the Government to take the necessary measures to ensure that those minors who provide services outside Supertiendas y Droguerías Olímpica S.A. are able freely to exercise their trade union rights in order to defend their rights and interests, irrespective of whether they work directly for Supertiendas y Droguerías Olímpica S.A., or are self-employed workers or work for a cooperative. The Committee observes that it has previously examined numerous allegations concerning cooperatives in Colombia and recalls that a high-level mission which has recently visited the country, has also examined this question. The Committee recalls its previous statement that although cooperatives represent one particular way of organizing production methods, it cannot cease consideration of the special situation of workers with regard to cooperatives, in particular as concerns the protection of their labour interests and considers that such workers should enjoy the right to join or form trade unions in order to defend those interests [see 337th Report, Case No. 2362, para. 757 and 336th Report, Case No. 2239, para. 353].
7. 406. As to the alleged non-compliance with clause 35 of the agreement, the Committee requests the Government to send it a copy of the collective agreement so that it can determine its scope.
8. 407. With regard to the allegations presented by SINTRASENA concerning the partial denunciation of the collective agreement (equivalent to 65 per cent of the previous agreement) by the National Apprenticeship Service (SENA) and SENA’s statement that it intended to limit the new agreement to what was required by the law, thereby doing away with certain subsidies, the Committee notes that, according to the Government, the denunciation of collective labour agreements is a right granted by law to the parties but a collective agreement is in fact valid until a new agreement has been concluded or an arbitration award has been handed down. The Committee further notes that, according to the Government and in accordance with the legislation in force, if the agreement is denounced by the workers they must present a list of demands that marks the start of the collective dispute, which itself is resolved when a collective labour agreement is signed, or an arbitration award is handed down. When the denunciation is made by both parties, the negotiations on the list of demands are not subject to any previous collective agreements entered into by the parties or arbitration award handed down by the arbitration tribunal. If it is the employer alone who denounces the collective agreement, it remains in force and may be extended as provided for in the law, because employers cannot present lists of demands and therefore are not able to initiate a collective dispute that results in another collective agreement or in an award being made by a mandatory arbitration tribunal.
9. 408. The Committee notes that, in the present case, the collective dispute was initiated following the partial denunciation of the agreement by the trade union organization, following which the employer declared that its real intention in the new negotiation process was to reduce the benefits that had been granted in previous negotiations. The Committee notes that these aims became clear in the course of the negotiations. In this regard, the Committee recalls that the opportunity which employers might have, according to the legislation, of presenting proposals for the purposes of collective bargaining – provided these proposals are merely to serve as a basis for the voluntary negotiation to which Convention No. 98 refers – cannot be considered as a violation of the principles applicable in this matter [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 849]. In these conditions, the Committee considers that the mere statement made by SENA does not violate the principle of free and voluntary negotiation.
10. 409. As to the refusal by the authorities to register Ms. María Gilma Barahona Roa as a member of the executive committee following her election by the National Assembly of SINUTSERES to the post of controller (fiscal), the Committee notes that, according to the Government, this refusal is based on the fact that Ms. Barahona Roa works for the National Local Road Fund, which is in the process of being liquidated. Therefore, according to the Government, because the legal representatives of a body in the process of liquidation are not allowed to conclude collective agreements, the establishment of trade unions, the creation of trade union branches or the election of executive committees becomes irrelevant as the representatives can no longer undertake any action aimed at improving working conditions. Firstly, the Committee notes that, according to the complainant organization, Ms. Barahona Roa was elected to the post of controller within the executive committee of a national trade union organization to carry out duties going beyond the defence of the workers’ interests within the body that is in the process of liquidation. Secondly, Ms. Barahona Roa continues to play a fundamental role within the body being liquidated, even though the legislation stipulates that no new collective agreements may be concluded. This role mainly consists of defending the interests of the workers during the process of liquidation. Thirdly, and finally, the Committee recalls that, in accordance with Article 3 of Convention No. 87, workers have the right to elect their representatives in full freedom. For all these reasons, the Committee requests the Government to take the necessary measures without delay for Ms. Barahona Roa to be registered as a member of the executive committee of SINUTSERES. The Committee requests the Government to keep it informed in this regard.
11. 410. Regarding the allegations relating to the non-respect by the Red Cross of the package of benefits agreed upon with SINTRACRUZROJA, the Committee notes that, according to the Government, the said benefits had been unilaterally granted to the workers by the Red Cross since 1987 and that, although the trade union organization claimed that these benefits were provided for in one of the collective agreements it had concluded, the employer denied it. Consequently, a compulsory arbitration tribunal was convened which handed down an arbitration award on 15 November 2001. The award stated that all the extralegal benefits contained in the package of services and benefits for employees should be granted by the employer only if financial, economic and administrative circumstances so permitted. The Committee also notes that, with regard to the application lodged by the trade union organization to have the award quashed, the Supreme Court took into account the critical economic condition in which the employer found itself and concluded that it was impossible to impose any additional financial burden which might jeopardize the very existence of the employer. The company then proceeded to inform the workers of its decision to cancel the said package of extralegal benefits. As a result, the complainant organization filed tutela proceedings (for the protection of its rights) which were dismissed on 14 April 2005. However, the Committee notes that the outcome of an administrative labour inquiry into alleged violations of the collective labour agreement is still pending. In these conditions, the Committee requests the Government to keep it informed as to the outcome of this inquiry.