Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 365, Noviembre 2012

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

1. 60. The Committee last examined this case at its November 2010 meeting, and on that occasion it made the following recommendations [see 358th Report, para. 446]:
   • As regards the allegations that, in the context of the liquidation of the company [Cali Public Sanitation Services Company], the collective agreement in force was not observed with respect to the compensation and pension benefits linked to the dismissals, the Committee requests the Government to keep it informed on the views expressed in the allegations and of the final outcome of the abovementioned judicial proceedings. The Committee further expects that freedom of association and collective bargaining rights are respected in the labour cooperative currently carrying out the work previously carried out by the company.
2. 61. In its communications of 27 May and September 2011, the Government forwarded the company’s observations. With regard to the allegation of the Cali Public Sanitation Services Company Workers’ Union (SINTRAEMSIRVA) that the company did not observe a 1996 unofficial accord under which workers opting for voluntary retirement were granted special benefits, the company states that the accord was valid for a specific time and process and that its official effects were limited to the process in question; the accord is therefore no longer part of the collective agreement that is the subject of the court proceedings undertaken by the trade union and its members.
3. 62. With regard to the allegation relating to the dismissal of workers and the corresponding compensation, the company states that the 1996 accord did not apply in this case either, given that it was no longer in force and was not part of the collective agreement. The company further states that the collective agreement contains no provisions on compensation in the case of unilateral termination without just cause of the labour contract after two years of uninterrupted employment with the company. Article 17(c) of the collective agreement clearly establishes the situation of such workers; it provides that, in the event of termination, they will be reinstated in the same position as they previously held, in which case they “shall be paid in compensation a sum equal to the wages not earned during the time they were not working”. The company adds that, with regard to collective bargaining, the independence of the parties to the negotiations on the collective agreement in force did not result in a compensation table for the workers affected by the company’s liquidation. In this situation, the company’s only legal option was to apply the compensation table set out in the law, which is not in contravention of Conventions Nos 87 and 98. The matter has been examined by the courts, which have found in the company’s favour.
4. 63. The company states that to date the courts have ruled, at both first and second instance, in the company’s favour. Some cases are starting to come before the Supreme Court, which is why there is no final outcome, except in connection with trade union immunity, over which the Supreme Court does not have jurisdiction. There have been a total of 260 court cases (ten relating to trade union immunity and 250 regular cases encompassing various matters such as compensation and pensions); the company provides details on the outcome of the proceedings. In the regular proceedings, there have so far been 33 decisions at first instance, three at second instance, and ten decisions relating to the lifting of trade union immunity, all in the company’s favour. The Government states that it always complies with court rulings.
5. 64. Lastly, the company states that sanitation services are not being provided through labour cooperatives but rather through commercial companies (the Government confirms this information) that took part in a lawful tender process and which are subject to the national labour system; the workers therefore enjoy all guarantees and rights. Law No. 142 requires that waste be collected by joint-stock corporations.
6. 65. The Committee takes note of this information. The Committee takes note that the company states that the proceedings concluded to date are in its favour. The Committee requests the Government to provide information on ongoing proceedings and their outcome.