Informe provisional - Informe núm. 354, Junio 2009

1. 590. The complaints are contained in a communication from the National Union of Workers of Banco Bilbao Vizcaya Argentaria Colombia (SINTRABBVA) dated 29 October 2007 and in two communications from the National Union of Bank Employees (UNEB) dated 7 April and 23 June 2008.
2. 591. The Government sent its observations in communications dated 3 June and 30 July 2008 and 21 January 2009.
3. 592. 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. 593. In the communications dated 29 October 2007 from SINTRABBVA and dated 7 April and 23 June 2008 from UNEB, the complainant organizations SINTRABBVA and UNEB allege that at the time of the merger in 2006 between BBVA and Granahorrar, all the employees of Granahorrar were pressured into signing the collective accord in exchange for continuity of employment at the bank. However, the conditions of the accord were less favourable than those of the collective agreement in force at BBVA. They allege that the BBVA workers were also pressured into accepting the collective accord, despite their being covered by the collective agreement, which was renewed until 31 December 2007. Nevertheless, the workers were exposed to constant pressure, harassment and deceit to withdraw from the collective agreement and sign the collective accord, which implied relinquishing the benefit of employment stability.
2. 594. The trade unions also refer to other failures to abide by the collective agreement in force, including the following:
   • – non-observance of the regulations concerning study allowances and loans (alleged by SINTRABBVA);
   • – obligation placed on workers to accept posts in a lower grade or category (alleged by SINTRABBVA);
   • – refusal of housing loans provided for under the collective agreement, with a more expensive credit being offered in their place (alleged by UNEB);
   • – payment of lower wages than those agreed, and non-payment of food, transport and maternity allowances and other social benefits (alleged by UNEB); and
   • – non-observance of the regulations concerning the hiring of apprentices (alleged by UNEB).
3. 595. The complainants add that the bank is engaging in a campaign of anti-union harassment. SINTRABBVA makes the following allegations:
4. (1) Mr Jairo Obando López joined the union on 25 July 2006, a letter notifying the bank of his membership in connection with the respective payroll check-off was received by the bank on 4 August 2006, and he was dismissed in the same month and year;
5. (2) Ms Nidia Patricia Beltrán from Cali became a union member on 25 July 2006, the bank was notified on 4 August 2006, and she left the union on 25 August 2006;
6. (3) Mr Dairo Cortés and Ms Luz Helena Vargas joined the union at the end of July 2006, the bank was notified of their membership on 2 August 2006, and their letters indicating their resignation from the union arrived on 10 and 11 August 2006. In addition, a letter dated 30 January 2007 informed the bank of the membership of Ms Marina Guzmán and Ms Gloria María Carvajal. The following day, the administrator from Ibagué went to Espinal, where the women worked, and pressured them into signing an affidavit that they would leave the institution; and
7. (4) Mr José Murillo, a member of the union, was dismissed, even though the bank was aware that he was protected by a reinstatement order under Decree No. 2351/65. Mr Henry Morantes from the Employees’ Fund was also unfairly dismissed for exercising his right to organize.
8. 596. UNEB, for its part, alleges that pressure is being put on workers to leave the union and disciplinary proceedings have been instituted in relation to six union leaders in order to intimidate them.
9. 597. Furthermore, the bank is filing various actions against the union at the Ministry of Social Welfare on account of the union assemblies held by UNEB, seeking to have the union’s legitimate action penalized, thereby compromising UNEB union leaders working at the bank and facilitating possible proceedings for lifting trade union immunity in the civil courts with a view to the subsequent dismissal of the union leaders. The ultimate goal is to reduce union activity in exchange for withdrawing the administrative actions filed at the Ministry.
10. 598. UNEB adds that the bank is assigning tasks forming an inherent part of current banking activity, such as customer service, to workers from temporary employment agencies, in breach of the collective agreement in force (1996–97 agreement), which provides that the bank must give preference to workers on open-ended contracts for carrying out its work.
11. 599. The union states that the bank has dismissed large numbers of workers, in some cases without taking account of the provisions of the collective agreement, but the union cannot file an action for mass dismissals at the Ministry of Social Welfare since the dismissals have been carried out by means of conciliation agreements. All of this has taken place with the knowledge of the Government.

B. The Government’s reply

1. 600. In its communications of 2 June and 30 July 2008 and 21 January 2009, the Government sent the following observations.
2. 601. With regard to the allegations concerning the pressure put by the BBVA on workers to sign a collective accord, as a result of the merger between the latter and Granahorrar and the disregard for the collective agreement in force, the Government points out that domestic legislation provides that a collective accord and a collective agreement may co-exist within an enterprise in cases where the trade union’s membership does not account for more than one third of the workers (section 70 of Act No. 50 of 1990). In effect, employers in Colombia are free to enter into collective accords, said freedom being limited by the rights, values and principles as a whole that are recognized by the Constitution. In other words, the said freedom remains undiminished and protected by the Constitution and the law but may not be exercised by an employer to infringe the fundamental rights of workers or of a trade union.
3. 602. The Government points out that these allegations are currently being investigated by the Territorial Directorate of Cundinamarca, which has scheduled three conciliation hearings. The allegations have been compiled at the 14th Labour Inspectorate of the Territorial Directorate of Cundinamarca because multiple complaints were submitted in various territorial directorates.
4. 603. The Government refers to the statement from the BBVA legal adviser that the bank respects and recognizes freedom of association and the right to organize, in conformity with national law and the provisions of international Conventions. The bank explains that in signing the collective accord the workers acted voluntarily and without any kind of pressure. The collective accord establishes non-statutory benefits by explicit agreement between an employer and non-unionized workers, a situation which is covered by section 481 of the Labour Code.
5. 604. The bank explains that at the time of the merger between the BBVA Colombia and Banco Granahorrar, the vast majority of Granahorrar employees were covered by a collective labour accord. Pursuant to the provisions of the law, that accord could exist alongside the collective labour agreement established at the BBVA in view of the number of unionized workers resulting from the merger, namely 23.5 per cent of the total workforce of the bank at the end of April 2006. Furthermore, before the merger, in compliance with the law and constitutional principles concerning the right to equality, the provisions of the collective accord were harmonized with those of the BBVA collective agreement. This situation proved favourable to the workers of the former Banco Granahorrar, who therefore accepted and signed the collective accord voluntarily and without coercion.
6. 605. Most workers who had not belonged to the BBVA union before the merger but had merely been beneficiaries of the agreement preferred to sign the collective labour accord granting equal benefits and decided for themselves not to join a union.
7. 606. On the expiry of the collective accord, the bank, in full compliance with the legal provisions which give legitimacy to collective accords, naturally pursued negotiations with the workers to determine the amendments or additions to be made for the next term of validity, which makes it perfectly clear that the collective accord was in no way imposed on the employees as alleged but was the result of an explicit, free and consensual agreement between the bank and its non-unionized workers.
8. 607. The bank emphatically denies the allegation that the continuity of a worker’s employment at the institution depended on signing the collective accord, something which can be shown with absolute certainty using objective figures, since to date there are approximately 1,209 unionized workers, 3,131 who have signed the collective accord and as many again who have neither signed the accord nor taken out union membership. Although the latter have not been part of any union or signed the collective accord, their employment stability has not been affected at any time or depended on signing the collective accord.
9. 608. The bank has compared the provisions of the agreement and the accord with respect to educational loans and concludes that both coincide in terms of possibilities for study and the performance-related defrayal of costs.
10. 609. According to the bank, it cannot be concluded that one instrument is more beneficial than the other. They have simply been the means for regulating situations involving different wishes and needs, namely those of the union at the time the agreement was concluded and those of the non-unionized workers when the accord was signed, as stated at the time of negotiation and signature of each of the instruments.
11. 610. As regards non-compliance with the terms of the collective agreement concerning employment stability, the bank indicates that various stances have been adopted with respect to the latter in judicial rulings. In some cases the rulings have defended the terms of the collective agreement and in others they have given precedence to the labour legislation in force. The bank adds that as regards employment stability on completion of ten years of service, the collective agreement of 1972 upheld the right to reinstatement as established at the time by Colombian labour law, but that right was explicitly abolished in 1990 by Act No. 50 of that year, under which the terms of the agreement ceased to be valid, and that has been the interpretation of the ordinary labour courts in successive rulings.
12. 611. With regard to the allegations relating to the supposed violations of national law by the bank in transferring or reassigning posts or failing to give salary increases to certain employees, the bank explains that it has always observed the applicable labour laws in force (national and international ratified by Colombia) and the provisions of the collective labour agreement existing in the enterprise. All transfers and reassignments of posts and salary increases are carried out as part of the objective and responsible exercise of ius variandi, and, hence, the accusations made by the complainant without any supporting evidence have no basis either in fact or in law.
13. 612. Concerning the failure to comply with the provisions relating to pay increases, the bank points out that account must be taken of the fact that the collective labour agreement provides for annual percentage salary increases for workers in categories 1 to 7 of the pay scale and excludes all other workers covered by the agreement from such increases. With regard to 1997, the pay scale also contained categories 8, 9, 10 and 11, and the workers in them did not benefit from the annual pay raise laid down in the collective agreement; their annual pay raises were governed by the wage policy approved by the management board. Under the restructuring carried out at the time, categories 8, 9, 10 and 11 were abolished and the workers in them moved to salary levels or bands in which pay raises were also governed by that policy, and so the rules applying to annual pay raises have not undergone any change.
14. 613. With regard to the failure to observe the collective agreement in relation to the hiring of apprentices, the bank indicates that in accordance with national law this form of hiring does not entail a direct employment relationship, and, hence, the collective agreement cannot be applied to these persons, contrary to the claim of the trade union.
15. 614. With regard to the allegations of harassment of union leaders, the bank will abide by the final outcome of the administrative labour investigation launched by the Territorial Directorate of Cundinamarca.
16. 615. With regard to the allegations made by SINTRABBVA concerning the dismissal of Mr Jairo Obando López, Ms Nidia Patricia Beltrán, Mr Dairo Cortés, Ms Luz Helena Vargas, Ms Marina Guzmán, Ms Gloria María Carvajal, Mr José Murillo and Mr Henry Morantes, the Government points out that the Ministry is not competent for dealing with worker dismissals, as this competence rests exclusively with the ordinary labour court. Dissatisfied workers must therefore have recourse to the aforementioned court to assert rights which they consider to have been violated.
17. 616. The bank points out that it cannot state the reasons why the aforementioned employees chose to leave SINTRABBVA since this is an internal matter for each worker concerned. As regards the point relating to the dismissal of Mr Jairo Obando López, the bank explains that it had no knowledge of his union membership since the said person was dismissed on 25 July 2006 and he joined the union on 4 August of that year.
18. 617. The bank emphasizes that, in accordance with the legislation, the employer has the power to decide on the termination of a contract of employment, provided that any special guarantees relating to the individual case are respected (trade union immunity, maternity protection, reinstatement, etc.). In the cases in question, the bank took the decision to terminate the employment relationship by virtue of the power conferred on it by law, without there being any special guarantee of protection.
19. 618. With regard to the allegations from UNEB regarding the launching of disciplinary proceedings, the Government indicates that according to the information supplied by the bank the latter acted in conformity with national labour legislation, respecting trade union immunity and due process.
20. 619. With respect to the administrative investigations launched by the bank against the union, the bank states that their purpose is to avoid action aimed at stopping work or blocking workers’ access to their workplaces.
21. 620. With regard to the allegations relating to the mass dismissal of workers, the Government refers to the bank’s statement to the effect that mutual agreement to terminate an employment relationship is an established ground in current legislation and in the majority of situations it supposes more favourable conditions for workers at the time of their retirement. The bank explains that the merger process was conducted in a reasonable, rational and cordial manner, emphasizing the fact that conciliation agreements were concluded in the presence of labour inspectors from the Ministry of Social Protection, this being a legal, valid and accepted practice. The bank maintains that if the union considered that the conciliation agreements were not valid, it should have had recourse to the competent legal body in order to cancel them and accordingly request the restoration of the rights which it considered to have been violated. In the light of the above and since an administrative complaint and various judicial proceedings are in progress, in line with the facts reported by the union, the Government considers that the present facts should be examined once the administrative decision and the corresponding judicial rulings have been issued.
22. 621. The Government also adds that the present allegations made by SINTRABBVA were examined in the context of the Special Committee for the Handling of Conflicts (CETCOIT) referred to the ILO, within which two subcommittee meetings were held. At the first meeting, which took place on 2 October 2007, the special representative in Colombia put forward various proposals for drawing up an agreement which would enable trust between the union and the enterprise to be restored. However, at the second meeting held on 31 October 2007, the industry union which participated took no account of the terms according to which the first meeting had been conducted and proceeded to criticize the employers. For the meeting in question the employers had prepared a number of items, including the possibility of withdrawing a collective accord which it had concluded with various workers, but those items could not be discussed because of the absence of the representatives of the trade union. The Government expresses its surprise at the course of action taken by SINTRABBVA, which, despite the fact that the dispute was being examined in the context of CETCOIT, submitted a complaint to the Committee on Freedom of Association without having given any opportunity to end the dispute in a positive way and reach a beneficial agreement for all workers.

C. The Committee’s conclusions

1. 622. The Committee observes that in the present case the complainant organizations (SINTRABBVA and UNEB) allege: (1) in the context of the merger between the BBVA and Granahorrar in 2006, the former pressured the workers of both institutions to sign a collective accord, despite the existence at the BBVA of a collective agreement which was valid until 31 December 2007; (2) various failures to comply with the collective agreement in force (with respect to study, transport and maternity allowances and other social benefits, seniority, housing loans, pay raises and hiring of apprentices); (3) the bank engaged in a policy of anti-union harassment, which involved the dismissal of Mr Jairo Obando López, just after the dismissals of Mr José Murillo and Mr Henry Morantes, and the forced departure of Ms Nidia Patricia Beltrán, Mr Dairo Cortés, Ms Luz Helena Vargas, Ms Gloria María Carvajal and Ms Marina Guzmán from SINTRABBVA, and brought administrative complaints against the leaders of UNEB; and (4) the bank effected the collective dismissal of workers by means of conciliation agreements in order to replace them with subcontracted workers.
2. 623. With regard to the allegations concerning the pressure put on the workers, in the context of the merger between the two bank entities in 2006, to sign a collective accord despite the existence of a collective agreement which was valid until 31 December 2007 and the non-compliance with various provisions of that agreement, the Committee firstly notes the Government’s statement to the effect that SINTRABBVA brought the same allegations in the context of the CETCOIT referred to the ILO, and then also decided to bring the present complaint before the Committee. The Committee further notes that the Government also points out the following: (1) Colombian legislation authorizes the signature of collective accords in cases where the unions account for no more than one third of the workers; (2) the bank did not place any pressure on the workers to sign the collective accord which already benefited the majority of Granahorrar workers before the merger; (3) once the merger had occurred, the BBVA workers who did not belong to the union (according to the Government, 23.5 per cent of the workers were unionized) preferred to sign the collective accord; (4) the bank denies that it made continuity of employment at the bank dependent on accepting the collective accord (there are 1,209 unionized workers and 3,131 workers who signed the collective accord); (5) the bank undertook an evaluation of the respective benefits provided by the collective accord and collective agreement, and concluded that one could not be said to be more beneficial than the other but that each responded to different needs of the workers; and (6) these allegations are being investigated by the Territorial Directorate of Cundinamarca, having been compiled at the 14th Labour Inspectorate because multiple complaints were submitted in various territorial directorates, and the former has scheduled three conciliation hearings.
3. 624. In this regard, while recalling “that the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98 and that collective accords should not be used to undermine the position of the trade unions” [see, inter alia, 336th Report, Case No. 2239, para. 356, and 337th Report, Case No. 2362, para. 761 (Colombia)], the Committee requests the Government to keep it informed with regard to the pending investigations before the Territorial Directorate of Cundinamarca.
4. 625. With regard to the allegations concerning harassment of trade union leaders, the Committee notes that the bank, according to the communication sent by the Government, will abide by the final outcome of the administrative labour investigation launched by the Territorial Directorate of Cundinamarca. As regards the allegations by SINTRABBVA concerning the dismissal of certain workers (Mr Jairo Obando López just after he joined the union and of Mr José Murillo and Mr Henry Morantes), and the forced departure from the union of Ms Nidia Patricia Beltrán, Mr Dairo Cortés, Ms Luz Helena Vargas, Ms Gloria María Carvajal and Ms Marina Guzmán a short time after they joined the union, the Committee notes the Government’s statement to the effect that competence for deciding on the legality of the dismissals rests with the ordinary labour courts and that it cannot establish the causes of the aforementioned workers’ departure from the union. The Committee further notes that the Government also refers to the information from the bank to the effect that, with regard to the dismissals, it fully respected the legislation in force, including trade union immunity and due process. In the case of Mr Obando López, the Committee notes the bank’s statement that the latter was dismissed on 25 July 2006 and joined the union on 4 August of the same year (according to the complainant, the bank received the notification on 4 August). The Committee notes that the bank also indicates that the administrative investigation launched against UNEB was intended to avoid work stoppages and blocking of workers’ access to their work.
5. 626. In this regard, the Committee requests the Government to keep it informed of developments in the investigation launched by the Territorial Directorate of Cundinamarca and expresses the hope that the investigation will cover all the allegations of harassment brought by the unions, including the dismissals and pressure put on some workers to leave the union.
6. 627. With regard to the allegations concerning the mass dismissal of workers by means of conciliation agreements in order to replace them with subcontracted workers, the Committee notes the Government’s statement to the effect that, according to the information supplied by the bank, the conciliation agreements were voluntary, that these offered favourable conditions for those who accepted them, that they were concluded in the presence of labour inspectors and that currently an administrative complaint and various judicial proceedings are pending. The Committee therefore requests the Government to keep it informed with regard to all the aforementioned actions.