Informe provisional - Informe núm. 350, Junio 2008

1. 508. This complaint appears in communications from the Central Unitaria de Trabajadores dated 15 March 2007 and from the National Union of Employees of BANCOLOMBIA dated 16 March 2007. SINTRABANCOL submitted additional information in a communication dated 16 July 2007.
2. 509. The Government sent its observations in communications dated 31 August and 17 December 2007.
3. 510. 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. The complainants’ allegations

1. 511. In its communications dated 15 and 16 March 2007, the Single Confederation of Workers of Colombia (CUT) and the National Union of Employees of BANCOLOMBIA (SINTRABANCOL) alleged that since the merger, in June 2005, between BANCOLOMBIA and the entities of the Corporación de Ahorro y Vivienda (CONAVI) and Corporación Financiera Suramericana (CORFINSURA), the working environment within the Bank has deteriorated considerably.
2. 512. It is stated that, while BANCOLOMBIA had a trade union in place, CONAVI and CORFINSURA had no unionized employees. They add that the Bank’s management exerted pressure on long-standing employees of the two latter entities to deter them from joining SINTRABANCOL, as well as on employees who did become members, including dismissal without just cause, flouting the disciplinary procedures embodied in the current collective agreement (article 26 of the current agreement for the period 2005–08, and article 28 of the collective agreement in force between 2001 and 2003). The trade union states that the following were summarily dismissed: Janne del Carmen Herazo Salgado, Liliana Robayo, Nelsy Monroy Alfonso, Gloria Ximena Ramírez Alturo, Diana Alexis Paez Maldonado, María del Pilar Salazar Lizcano, María del Pilar Rojas González and Marco Iván Rico.
3. 513. The trade unions attest that they cannot post their communications on the notice board because they are destroyed by members of management and that, in one office, employees were obliged to sign a letter against the trade union. The trade union organizations add that: systematic use is made of services companies; employees are required to meet sales objectives that are not provided for either in employment regulations or in the collective agreement and which have not been agreed with trade union representatives, with failure to meet these objectives constituting grounds for dismissal; in addition, the working day has been increased by two and three hours approximately, which are not paid; abrupt changes are made to working conditions that are not provided for in the collective labour agreement, or in legislation, and legal proceedings have been initiated to remove the trade union immunity of a number of leaders on grounds of petty offences.
4. 514. In its communication of 16 July 2007, SINTRABANCOL also makes reference to the dismissal of Elhga Mercedes Gómez Hañez, Omar Fredy Nova Rueda and Sandra Katalina Zambrano Mantilla; pressure on staff to withdraw from the trade union and to give up present and future agreement-based benefits.
5. 515. SINTRABANCOL further alleges that BANCOLOMBIA interferes in employees’ private lives, including private details of personal legacies.
6. B. The Government’s reply
7. 516. In its communications dated 31 August and 17 December 2007, the Government submits the following observations.
8. 517. The Government states that BANCOLOMBIA is Colombia’s largest bank. It was established in 1875, and is the product of a process of growth and sustained consolidation which has included mergers with the Banco Industrial Colombiano, hereafter BIC, and the Bank of Colombia (1998), becoming BANCOLOMBIA, followed by the merger between BANCOLOMBIA, Banco Comercial e Hipotecario CONAVI and Corporación Financiera Nacional y Suramericana, followed by Banco Corfinsura (in 2005). It is headquartered in the city of Medellín, where the general management offices are located.
9. 518. The Government begins by discussing the motives prompting the merger between BANCOLOMBIA, CONAVI and CORFINSURA. It states that the world situation is characterized by greater commercial integration which boosts the flow of goods and services between nations, and increases mobility of human and capital resources, in the interests of boosting competitiveness. Under these circumstances, countries must have solid financial systems that can respond to the commercial and productive dynamic required by this process, in order to contribute to countries’ development and economic stability. Experience throughout the world makes it possible to identify the extent to which the country’s economy benefits from the bank consolidation by generating economies of scale. To engage in these new practices, institutions must be sufficiently large and solvent to be able to meet these requirements. This accounts for the current trend on the world market towards mergers between large undertakings engaging in similar economic activities. The outcome of merging several companies, as reflected in the elimination of redundancy, increased efficiency, reduced average costs and expansion through access to new distribution channels, which will allow a company to boost its competitive capacity in a constantly evolving market.
10. 519. In the interests of consolidating an institution equipped to respond to the demands of the current economic dynamic, the boards of BANCOLOMBIA, CONAVI and CORFINSURA contemplated a merger between the three entities. The merger sought to take maximum advantage of synergies and complementarity between the three businesses, whose brand names are highly regarded on the Colombian market. This operation, which served to consolidate the country’s largest financial institution, offers substantial advantages in the nature of reduced operating costs in the medium term, risk diversification by overcoming respective levels of centralization and generation of an integrated portfolio of services, among others. By integrating operations in this manner, individual assets were enhanced, thereby making it possible to finance larger-scale projects, as compared to those financed by the three entities individually.
11. 520. By consolidating their assets and liabilities, the new entity could boost profits by increasing the number of branches and sales outlets for each bank’s products, while simultaneously achieving savings by using a single structure to produce a range of different services.
12. 521. The Government states that, in order to carry out the merger, BANCOLOMBIA engaged in an evaluation and design process, involving specialist teams with experience in such matters, and paying particular attention to the handling of human resource culture and management, as discussed hereafter.
13. 522. The Government goes on to state that, at the present time, BANCOLOMBIA offers Colombians a broad-based network of branches and ATM outlets throughout the country, to serve its clients, and over 12,000 employees committed to excellence and good service. Its shares are quoted on the stock exchange of the Republic of Colombia and it is the only Colombian bank whose shares are quoted on the New York Stock Exchange (NYSE).
14. 523. The Government states that BANCOLOMBIA promotes continuous learning among employees through integral training, and offers personal growth and financial well-being for the employee and family members, together with vocational development and knowledge management.
15. 524. The Government states that, as expressed by BANCOLOMBIA’s Vice-President for Human Resource Management, the Bank’s merger occurred in a situation of total transparency, with the active participation of employees, clients and the community. Trade unions were informed in detail of the purpose and progress of this process.
16. 525. On the subject of relations between the Bank and the trade unions, the Government states that, according to information provided by BANCOLOMBIA’s Human Resources Manager for the Bogotá and Sabana region, the Labour Relations Agenda was established several years ago to facilitate rapprochement between the parties, for the purpose of jointly reviewing sensitive matters and others of mutual interest. The parties meet on a monthly basis. In a meeting of 14 September 2006, Bank representatives briefed the two trade unions existing in the bank (SINTRABANCOL and UNEB) on the progress of the merger; agreement was reached during the same meeting on matters to be discussed during subsequent meetings.
17. 526. The Government emphasizes that trade unions have benefited from the merger in the sense that their revenues, in the form of membership dues and through broader application of the collective labour agreement, have increased by 50 per cent between the date of the merger and June 2007. This is primarily by reason of the fact that the agreement now covers all the expanded institution’s operational staff.
18. 527. The Government denies that the working environment has deteriorated as a result of the merger, and lists the events and activities substantiating the information provided by BANCOLOMBIA’s Vice-President:
19. - Training and development programmes: in order to appropriately prepare staff for changes resulting from the merger, 124 training programmes were held, involving 17,239 staff members. In addition, a programme of training in products and services was introduced, in which 6,469 employees participated, representing an investment of US$1,250,000.
20. - Since the merger was initiated, a “cultural transformation” process has been operated, intended to build a new company culture, with the participation of all employees, by developing corporate values. To date, over 12,300 staff members have participated, attending the respective two and three-day workshops, in different cities throughout the country where the Bank set up premises specifically for this purpose. This programme represented an investment of US$1,850,000. All staff members, including trade union leaders, have participated.
21. - Promotions or advancement: between the date of the merger and the present, 2,420 Bank employees have been promoted, reflecting the occupational growth and employment mobility of our staff.
22. - The average wage of Bank personnel is equivalent to 3.52 times the official minimum wage in Colombia.
23. - As mentioned previously, in December 2006, BANCOLOMBIA was selected by an independent entity as one of the best places to work in Colombia.
24. - Job creation: the Bank’s payroll has increased, following the merger, by some 1,109 new jobs, equivalent to slightly over 10 per cent, which is not usual when mergers take place.
25. - In BANCOLOMBIA, the following trade unions operate: National Union of Bank Employees – UNEB – and Union of BANCOLOMBIA Employees – SINTRABANCOL – with 1,283 and 1,282 members respectively, and representing 10.2 per cent and 10.2 per cent of total staff, respectively.
26. - BANCOLOMBIA has always respected and promoted freedom of association and collective bargaining. During the merger, for example, negotiation was carried out of the collective agreement for the years 2005 to 2008, the first such agreement following the merger process.
27. - A compelling instance of respect for the right to organize and collective bargaining, as embodied in the Constitution, lies in the fact that the abovementioned collective labour agreement now covers 8,937 Bank employees (71 per cent), despite the fact that the trade unions that negotiated the agreement accounted at that time for only 20.4 per cent of the Bank’s total number of employees. Under Colombian legislation, in cases where the trade union unions account for less than one third of employees, the collective agreement applies only to union members. BANCOLOMBIA, however, agreed that on the basis of autonomy of collective will, the recognized collective agreement coverage would exceed that required by law.
28. 528. As regards freedom of association and job stability in BANCOLOMBIA, the Government states that the Bank fully respects the right to freedom of association, in the sense embodied in law, case law and doctrine, as persons having the positive freedom to join, as well as the negative freedom not to join a trade union and the freedom to withdraw whenever they wish. It adds that there have been no administrative or judicial rulings by any Colombian authority in which BANCOLOMBIA has been subject to any penalty for pressuring staff in any manner whatsoever in connection with freedom of association or any other matter relating to labour relations. On the contrary, the large majority of labour-related judicial rulings involving BANCOLOMBIA have found in favour of the Bank.
29. 529. The Government adds that, as regards duration of employment, BANCOLOMBIA is one of the most stable undertakings in Colombia, as reflected in the average seniority of employees, which stands at 10.03 years. Striking also are figures such as the total of 1,980 employees whose seniority exceeds 20 years. Some 64 per cent of employees are women and, in terms of average age, 42 per cent of employees are over 35 years of age. In addition, it is to be noted that 98 per cent of employment contracts are open term.
30. 530. The Government emphasizes that the exercise of an employer’s prerogatives cannot be construed as trade union persecution. When conditions have arisen in the past that require termination of an employment contract with just cause, such as when workers have engaged in serious misconduct, the Bank has initiated employment contract termination proceedings against employees protected by trade union immunity. The judges of Colombia have repeatedly acknowledged the existence of such misconduct by trade union leaders and, once the motives for the unilateral termination with just cause of the employment contract has been demonstrated, they have authorized the Bank to proceed with the dismissals in question, as provided for in the labour code. The position of trade union leader cannot be used as protection or amparo (protection of constitutional rights) to engage in serious misconduct in the exercise of the employment contract. This is laid down by the Substantive Labour Code, article 405, and by the Procedural Labour Code, article 112, and following, neither of which in any way contradict Conventions Nos 87 and 98.
31. 531. The Government states that it is surprising that, despite the fact that several meetings have been held in recent years between the President of CUT, the Vice-President for Human Resources and the Director of Labour Relations of BANCOLOMBIA, this issue has never been raised with the Bank and no formal complaint has been lodged in this connection by CUT to BANCOLOMBIA.
32. 532. On the subject of the right to take disciplinary action, the Government notes that article 26 of the collective labour agreement in force in BANCOLOMBIA, provides that:
33. DISCIPLINARY PROCEDURE The disciplinary procedure will be conducted in such a way as to give the worker the right of defence, fulfilling the following formalities:
34. 1. Invitation to submit counter arguments
35. The worker will be informed by a memorandum of the misconduct allegedly committed, thus initiating the disciplinary procedure. This memorandum will be forwarded within 60 calendar days from the date on which the BANK is made aware of the situation in writing, through the worker’s immediate superior or the latter’s immediate superiors. In this communication, the employee will be informed that, within a period of 15 calendar days, he must submit counter arguments in writing or orally, as he prefers, and taking advice if he deems this appropriate from two representatives of the trade union to which he belongs.
36. In the case of employees belonging to the trade union, the BANK will send a copy of the above communication as follows: if the employee is a member of SINTRABANCOL, the copy will be forwarded to the Sub-Directorate of Sectional Committee, if these exist or, if not, to the National Board; If the worker is a member of UNEB, the copy will be forwarded to the Sub-Directorate or, if this does not exist, to the National Enterprise Committee.
37. No disciplinary procedure can be initiated after expiry of the above-stated 60-day period.
38. 2. Response to counter arguments
39. Once the employee has received the above memorandum, he has 15 calendar days to choose one of the following two alternatives:
40. 2.1. To submit counter arguments in writing, duly signed, which may be accompanied by that of representatives of the trade union of which he is a member. The employee may request the human resources department of the corresponding region to disclose documents and evidence that may be in the BANK’s possession on the matter under investigation, where appropriate, and if necessary to enable him to submit his counter arguments in writing.
41. 2.2. To request a hearing to present his counter arguments orally, which will take place within 15 calendar days following from the date of the employee’s request, during the course of the normal working day of the worker in question. During this hearing, the worker who is a union member shall be assisted by two representatives of his trade union and the employee may request, where appropriate, the disclosure of documents and evidence that may be in possession of the BANK on the matter under investigation. A record will be kept of the hearing, providing a written record of the counter arguments put forward.
42. If the worker fails to submit his counter arguments within the period of 15 working days, he will be considered to have acknowledged the alleged misconduct.
43. 3. Analysis of counter arguments
44. Once the justifications have been received, either in writing or orally, the Bank official who is conducting the disciplinary proceeding will analyse the explanations and decide, within a period of 15 calendar days, on one of the following two alternative courses of action:
45. 3.1. To declare the explanations to be justified, in which case the employee is absolved, which must be effected in a written communication.
46. 3.2. To decide that a penalty will be imposed, if he is of the opinion that the counter arguments are not acceptable. This decision will be communicated in writing to the employee found to have been at fault, who may appeal the decision before the immediate superior of the official conducting the disciplinary proceeding. The notification of the penalty must indicate clearly who the appeal should be addressed to.
47. The Bank must take a decision within these 15 calendar days, failing which its decision will become extemporaneous and, as a result, be without effect.
48. If no appeal is lodged against the penalty within a period of 10 calendar days, the employee will be informed, also in writing, of the date on which the penalty will take effect.
49. If the employee has lodged an appeal against the decision to impose a penalty, the respective superior has 10 calendar days to revoke, amend or confirm it. In all events, his decision will be considered final.
50. The decision to revoke, amend or confirm the decision of the first instance must be communicated in writing to the official who took the decision to impose the penalty and to the employee involved in the disciplinary proceeding. If it is confirmed, the first Bank official shall inform the employee of the penalty and put it into effect.
51. The disciplinary penalty will not be given effect if it is imposed in a manner that infringes the provisions of this article.
52. 533. It may clearly be inferred from these provisions that the ultimate objective of the disciplinary proceeding is to impose a disciplinary penalty, but it is not a procedural requirement in effecting a termination of employment contract with just cause, as provided in Decree No. 2351, article 7, of 1965. Indeed, the judicial authorities of Colombia have ruled to the effect that the disciplinary proceeding in Colombia presupposes the continuation of the employment link, since its objective is to discipline the employment relationship, as opposed to terminating that relationship, as would occur when an employee is dismissed. Therefore, the administrative procedures involved are different.
53. 534. The Government states that neither Colombia nor the Bank had any legal, agreement-based or contractual provision requiring them to carry out a disciplinary proceeding prior to terminating an employment contract with just cause.
54. 535. The dismissals connected with this complaint were not the result of trade union persecution, for which reason we deem it appropriate to list the motives underlying the dismissal of the workers listed by the trade union in the complaint, clarifying that several of them were not trade union members and their dismissal was unrelated to the mergers between the financial entities. The workers’ employment contracts were terminated with just cause.
55. 536. Janne del Carmen Herazo Salgado: dismissed for a cash shortfall of 3,900,000 Colombian pesos in her till. In 2004, she lodged a complaint before the First Labour Court of Montería, requesting reinstatement in her job. The courts of the first and second instance absolved the Bank in rulings issued in July 2005 and February 2006, thereby bringing the proceedings to a close. In 2007, the individual in question initiated an amparo suit which was rejected.
56. 537. Liliana Rocío Robayo: dismissed with just cause on 1 November 2006, for placing 6 million pesos in the wrong bank account; the money was withdrawn by the holder of the account in question and the Bank was obliged to sustain the loss. She lodged a labour suit complaint against the Bank, which is currently before Labour Court 19 of the Bogotá circuit.
57. 538. Nelsy Monroy Alonso: dismissed with just cause on 11 September 2006, for failing to place 2 million pesos in the account of a client who subsequently complained and submitted a receipt bearing the stamp and signature of the employee. On the day in question, the cashier did not report a surplus discrepancy. She had joined the Bank in September 2003. There is no case ongoing in this connection at this time.
58. 539. Gloria Ximena Ramírez Alturo: dismissed on 21 April 2006, with just cause, for paying a cheque in an irregular manner, causing a financial loss to the Bank and entered a cash deposit that was 50,000 pesos short and reported no cash surplus at the end of the day. In May 2006, the former employee submitted a right of petition requesting reinstatement in her job or cancellation of compensation, to which the Bank replied in July 2006 confirming the decision taken. In June 2007, Ms Ramirez filed a suit against the Bank before the Labour Court of Guamo, Tolima, notification of which was issued on 5 July 2007; the Bank is currently preparing its response to the suit.
59. 540. Diana Alexis Páez Maldonado: hired on 20 October 2003, and dismissed 12 June 2006, for receiving a deposit which was not subsequently processed. The former employee had received warnings and disciplinary action for failing to follow procedure for deposits and payments, which led to no improvement in her performance. No suit is currently ongoing in this connection.
60. 541. María del Pilar Salazar Lizcano: hired 3 February 2003. Dismissed with just cause 31 July 2006 for repeatedly failing to complete her working hours and for failing to respect established procedure relating to payment of taxes.
61. 542. María del Pilar Rojas González: hired 16 May 2004 and dismissed with just cause on 9 May 2006, for signing a form that was submitted to the Bank by a client as though the client had completed the form, that is, in the place of the client. No legal proceedings are currently ongoing in this connection.
62. 543. Lastly, Marco Iván Rico: worked in the bank from 29 January 1980 to 1 November 2006, when he was dismissed with proven just cause for failing to inform his immediate superior of a surplus discrepancy in his till on 28 June 2004. Since the former employee was protected by trade union immunity, the Bank initiated a special procedure to remove his trade union immunity, before the Circuit Second Labour Court which, on 4 July 2006, granted the requested authorization, which was subsequently ratified by the Supreme Court of Cúcuta in a ruling of 3 October 2006. Subsequently, the former employee submitted a tutela action before the Supreme Court of Justice against the rulings of the first and second instance, after having been denied amparo in a ruling of 28 November 2006.
63. 544. The Government draws attention to the fact that, in all cases, dismissal occurred with just cause and did not constitute trade union persecution of any kind, further stressing that some of the workers in question were not trade union members.
64. 545. As regards the right to information and communication, the Government attests that according to information provided by BANCOLOMBIA’s Vice-President for Human Resources, the trade union organizations may exercise their right to information, but without damaging the rights of others, in this instance of the establishments in question, thereby affecting their good name and image, as stated by the Vice-President: “There should be no confusion between the noble aims inherent in the right to information and the inappropriate means employed on occasion by the trade union, damaging the smooth running of offices and directly affecting the Bank’s clients”. The Bank, in compliance with the provisions of the political Constitution, articles 20, 25, 39 and 58, and the provisions of Convention No. 87, respects the trade unions’ right to information, but further states that on occasion SINTRABANCOL abuses this right and causes damage to the Bank’s premises.
65. 546. The Government adds that, according to information provided by the Bank, BANCOLOMBIA’s employees raised issues regarding excesses committed by some trade union leaders, in a voluntary manner, and not, as the trade union alleges, under pressure from the Bank. BANCOLOMBIA employees identify with the institution, which motivates them to perform in a manner that serves its best interests, because they then gain access to good opportunities and benefits, for which reason they defend the Bank when they feel that it is being unjustly brought into question.
66. 547. As regards the use of third parties for particular activities, the Government states that the political Constitution, article 333, provides for economic freedom, which should be understood as the possibility for individuals to engage in activities of an economic nature, with a view to maintaining or increasing their assets, provided that the principle of reasonableness and proportionality is maintained, in order to ensure harmony between different rights. In exercising this right, BANCOLOMBIA may contract third parties to provide particular services, such as correspondence, cleaning, delivery of correspondence, transport, security, without thereby violating legal rights or flouting the collective agreement, and in no way contravening Conventions Nos 87 and 98, emphasizing that 98 per cent of the almost 12,000 employees hold open-term contracts.
67. 548. As regards working conditions in the Bank, the Government states that: “The Committee is of the view that it is not within its purview to issue an opinion on the ILO conventions on working conditions, since these allegations do not relate to freedom of association” (annexes, Digest of decisions and principles of the Freedom of Association Committee, fourth edition, 1996, paragraph 26), although, in the interests of transparency, it refers to the statement of BANCOLOMBIA’s Vice-President for Human Resources, on the subject of working conditions at the Bank. He states that the Bank complies with current occupational health standards. Likewise, premises are in optimum condition and provide employees with the equipment and working tools required to fully discharge their responsibilities, under prime health conditions, in compliance with the Substantive Labour Code, 1 to 3, article 57, Act 100 of 1993 and Decree 1295 of 1994.
68. 549. In the interests of giving effect to legal provisions, a joint occupational health committee has also been established, composed of representatives of the company and of employees, the latter being elected directly by their peers, pursuant to Ministry for Social Protection Resolution 2013 of 1986.
69. 550. On the subject specifically of working hours, he states that the Bank complies fully with the provisions of Colombian legislation, which requires that the legal maximum working week is of 48 hours. On that basis, overtime is paid consonant with the Labour Code, articles 158 and following, and the Domestic Labour Regulations, article 14 and following.
70. 551. Employment contracts may be modified in keeping with the provisions of Colombian law, that is, on a bilateral basis. However, in keeping with its prerogatives (ius variandi locativo, espacial y temporal) the Bank generally decides, consistent with the Constitution and law, on the conditions of time, method and place under which the employment contract will be carried out, and these instructions are communicated to the persons involved in the manner laid down in the relevant legal provisions (regulations, laws, collective agreements). The Bank holds precise documentation on all procedures, which it publishes through the established channels of communication.
71. 552. In this connection, according to the Bank, on the basis of Colombian law, in certain situations and with reference to particular tasks, clauses are agreed whereby particular individual bonuses are established, to be paid to employees by the Bank; while such bonuses constitute earnings they are not part of their wages for purposes of payment of social benefits. Such agreements have a legal basis in Colombia (CST, amended by Act 50 of 1990, article 15).
72. 553. As regards allegations of interference by the Bank authorities in the private lives of employees, the Government states that, according to information provided by the Bank, the information to which management staff have access is of a general nature and is usually of public knowledge and in no way compromises the integrity of the individual, nor can it become a source of discrimination by reason of race, politics, gender, religion or any type of xenophobia.
73. 554. Regarding the case of Ms Elhga Mercedes Gómez Hañez, according to information provided by BANCOLOMBIA’s Manager for Human Resources, the Government states that Ms Gomez’ situation has no bearing on the trade union since she is not a trade union leader. This situation is of an individual nature, to be dealt with by a Labour Court, as clearly stated by the First Civil Municipal Court of Bogotá, in ruling on the amparo application submitted by Ms Gómez. The Government maintains that this matter is unrelated to Conventions Nos 87 and 98.
74. 555. As regards the dismissals of Omar Fredy Nova Rueda and Sandra Katalina Zambrano Mantilla, the Government indicates that the former was not a member of the trade union and his application for amparo was refused; Ms Zambrano Mantilla was dismissed, according to documents appended by the Bank, when her employment contract was terminated for duly proven just cause. She petitioned the Labour Court for leave to appeal, which was refused.
75. 556. As regards pressure on unionized staff, the Government conveys the Bank’s Manager of Human Resources information that currently 59 trade union members are on the administrative staff, which demonstrates that the allegation is unfounded.
76. 557. As regards alleged pressure on members to withdraw from the trade union, the Government points out that staff may avail themselves of the right to join a trade union which carries implicit the simultaneous freedom to renounce membership of the union. The Government states that the Bank’s Manager for Human Resources has provided information that, over recent years, some 250 requests have been received from employees moving between trade unions, that is from SINTRABANCOL to the Unión Nacional de Empleados Bancarios (UNEB). This demonstrates that workers who withdraw from SINTRABANCOL do not necessarily do so because they are subject to pressure but may simply wish to move to another trade union.
77. 558. As regards allegations of pressure on workers to give up current and future benefits under the collective agreement, the Government states that according to information provided by BANCOLOMBIA’s Manager for Human Resources, these employees are paid what is known as an integral salary which is laid down in internal legislation and is generally awarded to individuals in management positions in companies; such employees freely and voluntarily give up any eventual rights deriving from the Convention.
78. 559. In addition, the manager states that the 2005–08 collective labour agreement entered into between the Bank and the SINTRABANCOL and UNEB unions, provides:
79. ARTICLE 3. – SPHERE OF APPLICATION. The current provisions of the agreement will be applied in conformity with the following criteria:
80. 1. The following positions will be excluded from application of agreement provisions: President, Vice-President, Area Director, Unit Director, Manager, Section Head, Lead Analyst, Public Relations Assistant, Library Director, Senior and Junior Trader, Deputy Manager, Deputy Operations Manager, Agency Director, Deputy Commercial Manager, Assistant Accounts Manager, Prestige Assistant, Senior Executive, Personal Banking Executive, Supermarket Bank Executive, Funds and Pensions Executive, Establishments Executive, MIT Executive, MIT Consultant, Agreements Executive, Portfolio Executive, Centre Chief, Analyst, Deputy Director, Lawyer, Architect, Establishment Coordinator, Instructor, Executive Secretary, Training Specialist and Student Intern.
81. 2. Likewise, those positions that are not included in the BANCOLOMBIA hierarchy of positions (refs article 24 of the 2003-2005 collective agreement) which are comparable in essence or nature to those listed in the previous paragraph are excluded from application of the collective labour agreement.
82. 3. The worker may, in any case, give up agreement-based benefits before the Bank and the UNEB SINTRABANCOL trade unions.
83. 560. It is apparent from paragraph 3 that workers acted on this basis, as indicated by BANCOLOMBIA’s Manager for Human Resources, “as appears in paragraph 3 of this provision of the agreement, which has been carried over from earlier agreements, allowing individuals to give up the agreement-based benefits and thus they have acted on the basis of this provision”.

C. The Committee’s conclusions

1. 561. The Committee notes the communications of 16 March and 16 July 2007 by the Sindicato Nacional de Trabajadores de BANCOLOMBIA and of 17 March 2007 by CUT. The Committee also notes the communication of 13 June 2007 by SINTRATELEFONOS.
2. 562. The Committee notes that in this case the allegations submitted by CUT and SINTRABANCOL relates to the fact that, in the context of the merger between BANCOLOMBIA and the financial entities CONAVI and CORFINSURA, the following anti-union situations arose: (a) pressure on employees not to join SINTRABANCOL and persecution of those who did become members, including dismissal without just cause and without complying with the procedure established in the collective labour agreement of Janne del Carmen Herazo Salgado, Liliana Robayo, Nelsy Monroy Alfonso, Gloria Ximena Ramírez Alturo, Diana Alexis Paez Maldonado, María del Pilar Salazar Lizcano, María del Pilar Rojas González y Marco Iván Rico, Elhga Mercedes Gómez Hañez, Omar Fredy Nova Rueda and Sandra Katalina Zambrano Mantilla; (b) impossibility of posting communications on the Bank’s notice boards because they were destroyed by management; (c) pressure on workers to sign a letter against the trade union; (d) contracting of service companies; (e) longer working hours without payment of overtime; (f) changes in working conditions not provided for in the collective agreement; (g) pressure on staff to give up present and future agreement-based benefits; and (h) interference in employees’ private lives by the Bank.
3. 563. The Committee notes the observations forwarded by the Government in communications dated 31 August and 17 December 2007.
4. 564. The Committee notes that the Government refers firstly to the economic and financial motives prompting the merger between BANCOLOMBIA, CONAVI and CORFINSURA.
5. 565. As regards the alleged anti-union atmosphere that arose at the time of the merger, the Committee notes that the Government refers to information submitted by BANCOLOMBIA’s Vice-President regarding training and development programmes, the “cultural transformation” process, intended to achieve employees’ participation, the system of promotions and advancement and regarding freedom of association and of collective bargaining within the Bank.
6. 566. As regards allegations to the effect that, in the context of this anti-union policy, the following dismissals occurred which flouted established disciplinary procedure embodied in the collective labour agreement: Janne del Carmen Herazo Salgado, Liliana Robayo, Nelsy Monroy Alfonso, Gloria Ximena Ramírez Alturo, Diana Alexis Paez Maldonado, María del Pilar Salazar Lizcano, María del Pilar Rojas González y Marco Iván Rico Elhga Mercedes Gómez Hañez, Omar Fredi Nova Rueda and Sandra Katalina Zambrano Mantilla; the Committee notes that, according to information provided by the Bank, these individuals were dismissed for the most part for serious shortcomings in the performance of their duties. In this connection, the Committee notes that, according to the Government, Ms Herazo Salgado’s dismissal had nothing to do with freedom of association and that the judicial authorities denied her application for amparo. As regards Ms Robayo, the Committee notes that she instituted a suit against the Bank before Circuit Labour Court 19, which is currently ongoing. Ms Monroy Alonso was dismissed for reasons unrelated to the exercise of her trade union rights and she has lodged no appeal with the judicial authorities. Ms Ramírez Alturo filed a suit before the Circuit Labour Court of Guamo, Tolima, which is currently ongoing. Ms Páez Maldonado was dismissed for reasons unrelated to the exercise of her trade union rights and she has taken no judicial action; neither have Ms Salazar Lizcano or Ms Rojas Gonzáles. Mr Rico, who was a trade union leader, was dismissed for reasons unrelated to his position as trade union leader, as confirmed by the Superior Court of Cúcuta. The Committee notes that Mr Rico filed an application for amparo which was denied. With regard to Mr Gómez Hañez, Nova Rueda and Zambrano Mantilla, the Committee takes note of the Government’s information that Ms Gómez Hañez agreed voluntarily to leave the Bank and that applications for tutela were rejected. The other workers in question were dismissed for reasons unrelated to trade union matters. The Committee takes note that, according to the Government, judicial action initiated has been unsuccessful. The Committee observes that, in its reply, the Government simply conveys the information provided by the Bank and does not append copies of the judicial rulings to which it refers, with the exception of Ms Gómez Hañez’ tutela case. Consequently, with a view to identifying the reasons for the dismissals and how these were viewed by the judicial authorities and to prove that they were not related to the exercise of the workers’ trade union rights, the Committee requests the Government to forward a copy of the above court rulings. The Committee likewise requests the Government to keep it informed of the judicial proceedings that are currently ongoing and, if it is found that the workers were dismissed on anti-union grounds, to take measures to improse sufficiently dissuasive sanctions on those responsible.
7. 567. With reference to the other allegations regarding: pressure on workers not to join SINTRABANCOL and persecution of those who had become members, the impossibility of posting communications on the Bank notice board because they would be immediately destroyed by management, pressure on workers to sign a letter against the trade union; increased working hours without payment of overtime; changes in working conditions laid down in the collective agreement; pressure on staff to give up present and future agreement-based benefits and interference by the Bank in employees’ private lives, the Committee notes that the Government has submitted comments of a general nature and that, in regard to individual allegations, it merely conveys the reply sent by the Bank authorities. In this connection, the Committee notes that the Bank has stated that:
   • - The right to information is fully respected by the Bank but at times the trade unions use this right in an abusive manner that is prejudicial to the Bank.
   • - The letter signed by Bank employees against the trade union was voluntary and it denies any pressure on workers to sign.
   • - Working conditions are excellent and occupational health standards are respected; in addition, a joint occupational health committee has been established.
   • - As regards longer working hours, the Bank has complied fully with current legislation, and overtime is paid.
   • - Contracts are amended on a bilateral basis in conformity with legislation, regulations and the collective agreement; the Bank however has the legal discretion to amend the place of work, the conditions as to working time and the way in which work is carried out.
   • - As regards pressure on unionized employees, 59 union members currently hold administrative positions.
   • - As regards pressure on workers to renounce trade union membership, the latter is in fact the other face of the right to join a trade union, that is, the right to give up membership, and that in many cases workers withdraw from one trade union in order to join another.
   • - As regards pressure on workers to give up the current and future benefits provided for in the collective agreement, the workers in question occupying management positions in the companies freely and voluntarily gave up rights deriving from the agreement. Article 3 of the agreement provides that the following are excluded from the agreement-based provisions: President, Vice-President, Area Director, Unit Director, Manager, Section Head, Lead Analyst, Public Relations Assistant, Library Director, Senior and Junior Trader, Deputy Manager, Deputy Operations Manager, Agency Director, Deputy Commercial Manager, Assistant Accounts Manager, Prestige Assistant, Senior Executive, Personal Banking Executive, Supermarket Bank Executive, Funds and Pensions Executive, Establishments Executive, MIT Executive, MIT Consultant, Agreements Executive, Portfolio Executive, Centre Chief, Analyst, Deputy Director, Lawyer, Architect, Establishment Coordinator, Instructor, Executive Secretary, Training Specialist and Student Intern and all positions that are not included in the BANCOLOMBIA list of positions, which are essentially similar or comparable to those listed in the previous paragraph. Article 3 further provides that, in all events, a worker may give up agreement-based benefits before the Bank and UNEB and SINTRABANCOL.
   • - As regards interference in employees’ private lives, the information contained in personal files are of a general and public nature.
8. 568. The Committee notes the contradiction between the allegations submitted and the comments made by the company which were transmitted by the Government. The Committee regrets that, given the serious nature of the allegations, the Government has confined itself almost exclusively to reflecting the company’s position and provided no indication that it has investigated the facts in order to ascertain, for example, whether pressure really was brought to bear on workers to discourage trade union membership or to prompt withdrawal, or to sign a letter against the trade union, or whether the current collective agreement is respected as regards working conditions, disciplinary procedures, working hours and payment of benefits; if communications can be posted on the Bank notice board. The Committee reminds the Government that it is responsible for preventing any act of anti-union discrimination and should ensure that all complaints involving discriminatory practices are investigated in accordance with a procedure that should be both expeditious and impartial [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 817]. Consequently, the Committee requests the Government to carry out an independent investigation in order to ascertain the veracity of all allegations submitted, taking into account both the position of the trade union and that of the employer, and to keep it informed in this respect.
9. 569. As regards allegations that the company systematically contracts service companies, the Committee notes the Government’s statement that, according to information provided by the company, 98 per cent of the Bank’s employees hold a contract without limit of time. In this connection, the Committee does not consider that its purview allows it to issue an opinion on the nature of employees’ contracts within companies, unless used as a means of denying workers their trade union guarantees. Thus, the Committee requests the Government to guarantee that all those working at BANCOLOMBIA can enjoy the right to establish or join a trade union of their choice, in compliance with Article 2 of Convention No. 87.