Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 355, Noviembre 2009

1. 576. The present complaint is contained in a communication from the National Association of Telephone and Communications Engineers (ATELCA) dated 4 June 2008. The complainant organization sent additional information in a communication dated 19 June 2009.
2. 577. The Government sent its observations in a communication dated 29 April 2009.
3. 578. Colombia has ratified 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 complainants’ allegations

1. 579. In its communications of 4 June 2008 and 19 June 2009, ATELCA states that it is a trade union which currently represents the technical staff of the Bogotá Telecommunications Enterprise (ETB) in accordance with the current legislation of the Republic of Colombia and the Ministry of Social Protection. It also has a collective labour agreement with the ETB, known as the “ATELCA Chapter”. This chapter forms part of the collective agreement of the primary trade union, which represents the ETB’s other workers. On 26 May 2006, the ETB signed a collective agreement with the primary union, without the participation of ATELCA. That agreement called into question the wage increase of ATELCA’s members and disregarded their acquired rights, as the collective labour agreement signed between the ETB and ATELCA is in force in so far as its normative and obligatory clauses are concerned. According to the complainant, the ETB, in clause 19(c) of the 2006 collective agreement, disregards ATELCA’s autonomy by unlawfully interfering with the special chapter dealing with the craft union (ATELCA), and agrees to the following terms with the primary union: “For the purposes of the provisions of clause 46 on extension of the agreement to include the special chapter on ATELCA of 31 December 1997, it is decided that, for the members of that association, the wage increase applied during each year in which the present collective agreement is in force shall correspond to the national or district consumer price index (CPI), whichever is the higher, taken between 1 January and 31 December of the preceding year, as certified by DANE or the entity acting in its place, calculated in respect of the basic wages as at 31 December of the preceding year.”
2. 580. This amounts to an infringement by the ETB and the primary trade union of ATELCA’s right to engage in collective bargaining, since those entities did not have any approval or representative authority from ATELCA to commit it to such wage increase arrangements, ATELCA being the legal representative of the ETB’s technical workers.
3. 581. According to ATELCA, under the terms of article 3(5) of Act No. 48 of 1968, any trade union comprising 75 per cent or more of the employees in a given occupation, trade or specialized field (as is the case of ATELCA) has the right to present a list of demands and to have the company discuss it directly with the craft union concerned. In other words, despite the existence within the same company of a majority primary trade union, the law accords the minority union the right to present lists of demands and to appoint negotiators from among its membership to discuss those demands during the subsequent phase. Article 3(5) of Act No. 48 states that: “The list of demands which the latter (the craft union) presents to the company shall be discussed directly with that union, and the resulting agreement shall constitute a special chapter in the respective collective labour agreement. The craft union thus has the right to devote part of the negotiations to discussions on its own issues and working out arrangements with the corresponding employers.”
4. 582. Within the framework of the collective labour agreement of 1984, ATELCA concluded with the ETB a special chapter on ATELCA, clause 5 of which states that: “The Company shall extend to the Association’s members those provisions of the collective agreement concluded with the primary trade union that are not covered in the chapter on ATELCA and are favourable to the technical workers, including with regard to wage increases and the legal effect of the present agreement.” It follows that the arrangements concluded with regard to wage increases in the agreement of 26 May 2006 between the ETB and SINTRATELEFONOS – clause 19(a) of which states that: In all cases, wage increases shall be distributed among the said staff as follows: (a) For workers occupying posts in categories I to XIV of the unified occupational wage schedule, the ETB shall increase wages from 31 December of the preceding year by an amount equivalent to the increase in the national consumer price index (CPI) over the period 1 January to 31 December of the preceding year and certified by DANE or the entity acting in its place, plus 3.15 per cent – which is not provided for in the chapter on ATELCA, and be accorded in full to the association’s members pursuant to clause 5, since they are favourable to the technical workers. It is therefore incumbent upon the company to comply with the agreement and honour the commitment to its workers that it assumed with this provision.
5. 583. Since the disputed provision concerns the association’s right to collective bargaining, which is guaranteed under article 55 of the national Constitution, which further provides that the State has a duty to foster negotiation and all other means of achieving the peaceful resolution of collective labour disputes, the Ministry of Social Protection is competent to enforce compliance with provisions agreed on through collective bargaining.
6. 584. Under the law, workers’ unions are fully empowered, in disputes of a legal or economic nature, to represent the interests of their members vis-à-vis employers and administrative authorities, in accordance with articles 373 and 374 of the Substantive Labour Code (SLC). Under the terms of clause 9 of the collective labour agreement of 1982 (ATELCA Chapter), in the event of conflicting provisions, the one most favourable to the worker must be applied. The same applies in article 21 of the SLC, which states that: “In the event of a dispute or uncertainty as to the application of labour provisions in force, the provision(s) most favourable to the worker prevail. The provision that is adopted shall be applied in full.”
7. 585. On 14 June 2006, ATELCA, exercising its right to present demands, requested the legal representative of the ETB to agree to pay every one of ATELCA’s members the wage increase corresponding to the agreement with ATELCA, in order to give effect to the clause extending the collective agreement concluded between the ETB and ATELCA. The request was rejected by the company’s management, disregarding the agreement.
8. 586. ATELCA states that it appealed to the Ministry of Social Protection on 6 September 2006 but that the administrative authority has not yet given a ruling.
9. B. The Government’s reply
10. 587. As regards ATELCA’s complaint concerning disregard of acquired rights, to the effect that the ETB and the primary trade union failed to take account of ATELCA when concluding the collective labour agreement, the Government states the following.
11. 588. ATELCA considers that its autonomy is disregarded with the inclusion in the agreement of the following clause:
12. For the purposes of clause 46 on the extension of the agreement to include the special chapter on ATELCA of 31 December 1997, it is decided that, for the members of that association, the wage increase during each year during which the present collective agreement is in force shall correspond to the national or district consumer price index (CPI), whichever is the higher, taken between 1 January and 31 December of the preceding year, as certified by DANE or the entity acting in its place, calculated in respect of basic wages as of 31 December of the preceding year.
13. 589. In the light of the foregoing, the union considers its right to collective bargaining to have been infringed, on the grounds that those who participated in the negotiations did not have ATELCA’s approval to include them in the wage increase provisions. Finally, the union refers to article 3(5) of Act No. 48 and to the initiation of an administrative inquiry into the allegations made against the ETB.
14. 590. With respect to the present allegations, the Government states that, according to the Head of the ETB’s Disputes Department: (1) there are two union organizations within the company, a primary union and a craft union known as ATELCA; (2) the collective agreement concluded with the primary trade union provides for a wage increase for workers covered by the unified occupational wage schedule equivalent to the national CPI from 1 January to 31 December of the preceding year, as certified by DANE or the entity acting in its place, plus 1.25 per cent. It was agreed to distribute the increase among the workforce in the following manner:
15. – for workers in categories I to XVI of the unified occupational wage schedule, the CPI plus 3.15 per cent;
16. – for workers in categories XV to XVIII, the CPI plus 0.5 per cent;
17. – for workers in categories XIX and XX, 3 per cent.
18. 591. In short, the overall agreed increase was distributed by the primary union in weighted form, the lower-income workers receiving a higher increase than the higher income workers.
19. 592. The head of the Disputes Department has also pointed out that: “In addition, the parties agreed that they would not touch the wage increase which had been agreed by ATELCA and the company and applied since 1998, whereby it was agreed with the union that as from 1998 the company would implement an increase, starting that year and then each year thereafter, in line with the CPI for the preceding year for the city of Bogotá, as certified by DANE or the entity acting in its place.”
20. 593. The Government states that clause 2 of the collective agreement with ATELCA for the period 1997–2000 reads as follows:
21. 2. Wage increases
22. Clause 16 of the Special Chapter concerning ATELCA, signed on the thirtieth day of October 1996, shall be worded as follows:
23. “As from 1998 and with effect from the first (1st) of January each year, the Company shall effect a wage adjustment in respect of the basic wage of each technical worker as at the thirty-first (31st) of December of the preceding year, equivalent to the weighted consumer price index from 1 January to 31 December of the preceding year and for the city of Santa fe de Bogotá, as certified by DANE or entity acting in its place.”
24. “Paragraph: The wage schedules thus increased shall form an integral part of the collective agreement and the workers’ wages shall be governed thereby.”
25. 594. For its part, the clause in the agreement which the complainant refers to as being infringed (clause 5 of the collective agreement signed in 1984) reads as follows:
26. The Company shall extend to the Association’s members any provisions of the collective agreement concluded with the primary trade union that are not covered in the chapter on ATELCA and are favourable to the technical workers, including in regard to wage increases and the legal effect of the present agreement.
27. 595. The Government concludes from this that, in order to give effect to the benefits for ATELCA members, as provided for in the basic collective agreement, those benefits do not need to be provided for in the chapter concerning ATELCA. This gives rise to two possible situations:
28. – The benefits concluded with the primary union are not granted (to ATELCA members) if the collective agreement with ATELCA makes express provision in that regard.
29. – Where wages are concerned, the collective agreement with ATELCA provides for them in clause 2, as cited verbatim above, and, as is stipulated, the company began implementing the agreed increase as from January 2006.
30. 596. In conclusion, it is clear that the benefits would apply with regard to the increases even if they were not already provided for in the special chapter concerning ATELCA.
31. 597. In the present case, according to the Government, ATELCA’s complaint is founded on its interpretation of clause 5 of the annex to the collective agreement (special chapter) which, in its view, the company has failed to implement. According to the Government, the organization is being contradictory when it states that, on 26 May 2006, the ETB and the primary union signed a collective agreement “without the participation of ATELCA, and that the special chapter concerning ATELCA is in force in so far as its normative and obligatory clauses are concerned”, and claims that its members’ wage increases had been called into question and their acquired rights disregarded because the agreement with the primary union stated that, for the beneficiaries within that union (ATELCA), the wage increase in each year during which the collective agreement remained in force would correspond to either the national or district CPI, whichever is higher.
32. 598. The Government emphasizes that the agreement with the primary union in no way compromises the agreement concluded with ATELCA in 1997, since that union agreed to a clause on wage increases which automatically comes into effect once the period stipulated in the collective agreement (special chapter concerning ATELCA) has lapsed, since that special chapter has not been renegotiated inasmuch as the union has not denounced it, and has been extended in accordance with the law. The ETB, far from having infringed the provision in question, complied with the agreement between ATELCA and the company.
33. 599. The Government states that ATELCA lodged a complaint against the ETB with the Territorial Directorate of Cundinamarca for alleged infringement of the collective labour agreement, and that the Directorate’s Coordinator of Inspection and Monitoring is currently studying the file before taking its decision. Once a reply has been received from the Directorate, a copy of the decision will be sent.

C. The Committee’s conclusions

1. 600. The Committee notes that in this case ATELCA alleges the failure by the ETB to implement certain clauses of the collective agreement in force, and the negotiation between it and another trade union of clauses affecting ATELCA, without the latter having any opportunity to participate in the negotiations or delegating authority to represent it.
2. 601. The Committee notes that ATELCA states that it is a union organization representing the technical workers of the ETB. Within that company there is another, primary, trade union. The company has negotiated the collective agreement with that primary union, but within the agreement there is a chapter, entitled “Chapter on ATELCA”, that has been negotiated between the company and ATELCA in accordance with article 3(5) of Act No. 48 of 1968. Under that provision, any trade union representing 75 per cent or more of the employees in a given occupation, trade or specialized field (as is the case of ATELCA) has the right to present a list of demands and to have the company discuss it directly with the craft unions.
3. 602. The Committee notes that according to the complainant, the aforementioned chapter stipulated, in 1984, that “the company shall extend to the Association’s (ATELCA’s) members the provisions of the collective agreement concluded with the primary trade union that are not covered in the chapter on ATELCA and which are favourable to the technical workers, including in regard to wage increases and the legal effect of the present agreement”.
4. 603. The complainant adds that on 26 May 2006, the ETB signed a collective agreement with the primary trade union without the participation of ATELCA. That agreement includes the following two clauses:
   • – In one clause (clause 19(a)), it was established that: “In all cases, wage increases shall be distributed among the said staff as follows: (a) for workers occupying posts in categories I to XIV of the unified occupational wage schedule, the ETB shall increase wages as at 31 December of the preceding year by an amount equivalent to the increase in the national consumer price index (CPI) over the period 1 January to 31 December of the preceding year, as certified by DANE or other entity acting in its place, plus 3.15 per cent.”
   • – Another additional clause provides as follows: “For the purposes of clause 46 on the extension of the agreement to include the special chapter on ATELCA of 31 December 1997, it is decided that for the members of that union the wage increase during each year during which the present collective agreement is in force shall correspond to the national or district consumer price index (CPI), whichever is the higher, taken between 1 January and 31 December of the preceding year, as certified by DANE or other entity acting in its place, calculated in respect of the basic wages as of 31 December of the preceding year.”
5. 604. The Committee notes that according to the complainant, neither the ETB nor the primary union had the approval of ATELCA, or any representative authority delegated to it, to negotiate on its behalf. The Committee notes that, consequently, on 14 June 2006, the complainant organization requested the ETB to extend to it the wage increase negotiated between the ETB and the primary union (clause 19(a)), as stipulated in the chapter on ATELCA; this was refused, and in response ATELCA applied to the administrative authority on 6 September 2006. No ruling has yet been forthcoming.
6. 605. The Committee notes in this respect the Government’s statements to the effect that according to the head of the ETB’s Disputes Department: (1) within the company there are two union organizations; (2) the company in 2006 negotiated a wage increase with the primary union which it was agreed should be distributed among the staff on a weighted basis, workers in categories I to XIV being granted an increase corresponding to the CPI plus 3.15 per cent, with reduced increases for the higher categories; (3) the ETB and the primary union agreed that they would not touch the wage increase on which the ATELCA union had an agreement with the company since 1997. In this respect, the Committee notes that the Government refers to a collective agreement concluded between ATELCA and the ETB for the period 1997–2000 (to which the complainant does not refer), clause 2 of which, on wage increases, provides that: “As from 1998 and effective as at the first (1st) of January each year, the Company shall effect a wage adjustment in respect of the basic wage of each technical worker as at the thirty-first (31st) of December of the preceding year, equivalent to the weighted consumer price index (CPI) from 1 January to 31 December of the preceding year and for the city of Santa fe de Bogotá, as certified by DANE or entity acting in its place” and that “The wage schedules thus increased shall form an integral part of the collective agreement and the workers’ wages shall be governed thereby”.
7. 606. The Committee notes that, according to the Government, it follows from the foregoing that the company is honouring its agreement with ATELCA, since if one takes into account, on the one hand, the provisions of clause 5 of the collective agreement of 1984 extending to ATELCA’s members those provisions of the collective agreement concluded with the primary trade union that are not included in the chapter on ATELCA, and, on the other hand, the fact that in 1997 ATELCA and the ETB agreed in clause 2 on the increase in favour of ATELCA, it is not appropriate to accord the extension claimed by ATELCA, since there is a provision which expressly provides for the salary increases in favour of ATELCA. Finally, the Committee notes that according to the Government, administrative proceedings are under way before the Coordinator of Inspection and Monitoring of the Territorial Directorate of Cundinamarca.
8. 607. Noting in this respect that, according to the company’s statements, there is an agreement, signed in 1997 between ATELCA and the ETB for the period 1997–2000, which foresees specific guidelines for wage increases and which, according to the company, remains in force, the Committee considers that the extension to ATELCA’s members of the wage clauses of the 2006 agreement between the company and the primary union is a matter for interpretation which has to be settled in accordance with the rules and criteria of national legislation. The Committee recalls, moreover, that the complainant has the right under national legislation to denounce the agreement signed in 1997 if it considers it to be prejudicial. Bearing in mind that the matter is under consideration by the Coordinator of Inspection and Monitoring of the Territorial Directorate of Cundinamarca, the Committee requests the Government to keep it informed of the final outcome of the ongoing administrative proceedings.