Informe definitivo - Informe núm. 397, Marzo 2022

1. 221. The complaint is contained in a joint communication of 10 June 2015 from the Single Confederation of Workers of Colombia (CUT) and the Workers’ Trade Union Confederation of the Oil Industry (USO).
2. 222. The Government of Colombia sent its observations on the allegations in communications dated 16 May 2016, 20 March 2017 and 27 January 2022.
3. 223. 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) and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 224. In their communication dated 10 June 2015, the complainant organizations report that the enterprise, ECOPETROL SA (hereinafter “the enterprise”), and its contracting enterprises committed multiple anti-union acts against workers belonging to USO, such as the dismissal of trade union leaders, the initiation of disciplinary proceedings against members of the trade union, and restrictions on the exercise of the right to strike. They also report failure to comply with the collective labour agreement concluded with USO and the existence of a benefits plan for non-unionized staff from the enterprise, which undermines the exercise of freedom of association.
2. 225. The complainant organizations indicate that USO is an industry trade union that represents over 27,000 workers in the oil sector. They state that, despite the filing of a complaint with the Committee on Freedom of Association in 2012 for continued violations of freedom of association against members of USO, which gave rise to a series of recommendations by the Committee [Case No. 2946, 374th Report of the Committee, March 2015, paras 220 257], such acts are still being carried out on a continuous basis.
3. 226. The complainant organizations allege, first of all, that, on 8 June 2012, the secretary for energy affairs of USO, Mr Wilmer Hernández, and the president of USO’s Cartagena branch, Mr Joaquín Padilla, were dismissed for acts related to the exercise of their trade union activity. The complainant organizations also state that, on 27 March 2015, the national vice-president of USO, Mr Edwin Palma, was dismissed after using social media to denounce the high salary of an executive of the enterprise in comparison with the wages of workers, which, according to the complainant organizations, violates the freedom of expression of the trade union and its leaders. They indicate that, on 2 June 2015, the Court of Barrancabermeja upheld the tutela action brought by Mr Palma, and ruled that the procedure followed for his dismissal violated the constitutional rules of the country.
4. 227. The complainant organizations further denounce that, on 28 February 2015, which was the day before a strike ballot, the contracting enterprises, Pexlab and TIP LTDA, terminated the employment contracts that were due to end on 30 March 2015, which affected 600 workers, 350 of whom belonged to USO.
5. 228. The complainant organizations also state that, between 2014 and the date on which the complaint was filed, the enterprise brought 88 disciplinary proceedings against 443 workers belonging to USO, including several leaders. They indicate that the number and quality of the disciplinary proceedings are directly proportional to the importance within the trade union of the person subject to the proceedings. In this regard, they state that, since 2002, Mr Palma has been the subject of 25 disciplinary proceedings initiated by the enterprise, and has been penalized through two of these investigations.
6. 229. According to the complainant organizations, the majority of these disciplinary proceedings took place following some kind of trade union activity, such as participation in work stoppages and meetings. They state that the contracting enterprise, Ecodiesel Colombia SA, called for the dismissal of 22 workers belonging to USO, for participating in a meeting held at the workplace on 14 April 2015. The complainant organizations also allege that, on 16 January 2015, a trade union leader was subject to disciplinary action, with two months without wages, for holding a meeting at the entrance to the refinery in Barrancabermeja. They also state that the contracting enterprise, Halliburton Latin America SA LLC, put pressure on and then initiated disciplinary proceedings against workers belonging to USO, who were wearing the logo of the trade union while they negotiated a collective agreement with the above-mentioned enterprise.
7. 230. The complainant organizations also report other measures taken against members of USO. They state that, since 2012, the enterprise has initiated proceedings to lift the trade union immunity of 11 members of the trade union, including Mr Palma, Mr Hernández and Mr Padilla. The complainant organizations indicate that, on 31 March 2014, a second-instance ruling was issued, which confirmed the lifting of the trade union immunity of Mr Padilla.
8. 231. The complainant organizations further maintain that, in the year before the complaint was filed, the enterprise docked the wages of all the USO members who participated in short information meetings and work stoppages. They also state that the enterprise issued warning letters to workers who participated in these activities, and that after three letters have been received, a worker can justifiably be dismissed.
9. 232. The complainant organizations state that, two years before the complaint was filed, the employers filed 28 criminal complaints against union leaders of USO, for offences such as obstruction of public ways, damage to property, acts of assault, calumny and slander.
10. 233. The complainant organizations also state that, on 10 June 2014, the contracting enterprise, Equirent, brought charges against USO for a work stoppage, seeking to have the action declared illegal, in order to subsequently request the dissolution, liquidation and revocation of USO’s legal status in the trade union register. They indicate that the contracting enterprise, Helmerich & Pionner, and the contracting enterprise, Petrosantander, filed similar charges on 11 September 2014 and 13 February 2015, respectively. In this regard, the complainant organizations request that the proceedings to declare the work stoppages as illegal be suspended until legal regulations are issued, as required by the Constitutional Court and as recommended by the Committee on Freedom of Association.
11. 234. Regarding the alleged failure to comply with the collective labour agreement, the complainant organizations state that the enterprise denies USO leaders access to its refineries, despite the fact that section 9 of the agreement establishes that USO leaders may visit workplaces to address any concerns that staff may have regarding work or the agreement. In this regard, the complainant organizations report that, on 24 March 2015, the Ministry of Labour issued a list of charges against the enterprise.
12. 235. Concerning the above-mentioned collective labour agreement, the complainant organizations also allege, inter alia: (i) the weak application of human rights guidelines and monitoring of contracted activities; (ii) the violation of working hours; and (iii) the unilateral regulation by the enterprise of aspects such as the application of allowance scales for direct and outsourced staff, the provision of housing and food subsidies.
13. 236. The complainant organizations also maintain that the enterprise refused to implement the protocol governing the relations between the enterprises belonging to the group and USO, which was agreed with the enterprise in order to offer the benefits of trade union membership and collective bargaining to the various enterprises that it owns.
14. 237. The complainant organizations go on to refer to the regime applicable to non-unionized staff in the enterprise. They state that, since 1977, there have been two labour and payroll schemes, one of which was agreed in the collective labour agreement (conventional payroll scheme) and the other, which was established in agreement No. 01 of 1977 (managerial payroll scheme) (hereinafter “agreement No. 01”), which is a benefits plan implemented unilaterally by the enterprise, which provides better working conditions and benefits for non-unionized workers. The complainant organizations state that agreement No. 01 is used to control the growth of the trade union, weaken the conventional scheme and reduce the capacity of USO to exercise the right to strike. They allege that, through this mechanism, the enterprise has, in the past, maintained the conventional scheme below 33.3 per cent, and that, although the number of trade union members has increased in recent years, the enterprise avoids the application of the collective labour agreement to non-unionized third parties, in accordance with section 471 of the Substantive Labour Code (CST).
15. 238. The complainant organizations conclude that the aim of the enterprise’s policy with USO is to hinder its functioning, as the trade union has to allocate a significant portion of its resources and time to defending itself in the legal battle waged by the enterprise. They indicate that, to date, the acts of anti-union discrimination carried out by the enterprise have not been sanctioned by the Colombian Government, despite the fact that USO filed: (i) a complaint regarding the benefits plan of the enterprise (agreement No. 01) before the Ministry of Labour; (ii) a criminal complaint before the Public Prosecutor’s Office for violation of the right to freedom of association under section 200 of the Criminal Code; (iii) several complaints for illegal outsourcing; and (iv) tutela actions against the disciplinary proceedings.

B. The Government’s reply

1. 239. In its communication of 16 May 2016, the Government firstly forwards the observations of the enterprise. The enterprise refers, first of all, to the allegations of irregular dismissal of several leaders of USO. It states in this regard that: (i) in the case of the dismissals for failure to comply with labour obligations, the disciplinary proceedings established by Act No. 734/2002 are not applicable, but rather the rules set out by the Substantive Labour Code on dismissals, the labour collective agreement and the internal regulations of the enterprise; and (ii) the enterprise has complied with these rules, and has always paid particular attention to the right to defence of the workers concerned. As regards the situation of trade union leaders, Mr Edwin Palma, Mr Wilmer Hernández and Mr Joaquín Padilla, the enterprise indicates that they continue to be employed by the enterprise, as, in respect of the rules on freedom of association, it requested the courts to lift the trade union immunity of the above-mentioned trade union leaders for multiple counts of failure to comply with labour obligations, and is awaiting the corresponding decisions. The enterprise specifies that the request to lift the trade union immunity of Mr Palma for the publication of a post on a social media network by the worker, in which he shared information on the salary of an executive of the enterprise, does not violate the right to freedom of expression. It states that the exercise of freedom of expression must also respect other fundamental rights, including the right to privacy.
2. 240. Concerning the allegations of the use of disciplinary proceedings for anti-union purposes, the enterprise states that: (i) it does not exercise disciplinary authority in response to trade union activities; (ii) USO ignores the fact that, in accordance with Convention No. 98, the initiation of disciplinary proceedings against a worker for participation in trade union activities when such activities are carried out during working hours without the consent of the employer, does not constitute an act of discrimination; and (iii) the allegations by the complainant organizations lack evidence and specific details that would point to a violation of freedom of association.
3. 241. Regarding the wage deductions that, according to the complainant organizations, allegedly affected workers belonging to USO, the enterprise states that any unjustified absence by workers results in the non-payment of wages for the duration of the absence, due to the lack of services provided.
4. 242. Similarly, the enterprise states that the warning letters addressed to certain workers aimed to remind those concerned about compliance with their contractual and legal obligations, which is vital for the proper functioning of labour relations in any enterprise. It adds that these letters are completely unrelated to trade union membership or activity.
5. 243. With regard to the allegations concerning the violation of the right to strike, the enterprise states that: (i) article 56 of the Constitution provides for restrictions of the right to strike in relation to essential public services to ensure the continued provision of such services and to protect the public interest; (ii) such restrictions are not contrary to the general principles enshrined in ILO Conventions, as these instruments do not regulate the right to strike; (iii) nor do these sources imply the absolute and unrestricted exercise of this right; (iv) it is therefore the domestic legal system which, taking into account the specific conditions of the country, may determine in which events this right may reasonably be restricted. On the basis of the above, the enterprise states that it is clear that USO has not brought its actions into line with the constitutional and legal framework, and that it is therefore incomprehensible that USO is now seeking to denounce alleged violations of the right to freedom of association that have not taken place.
6. 244. Concerning the reference, in the allegations, to the outsourcing of activities of the enterprise by means of contracting enterprises, the enterprise indicates that it uses this method in accordance with the conditions established by law, and that this does not constitute a violation of the collective agreement or freedom of association.
7. 245. With regard to the allegations of the anti-union nature of agreement No. 01, the enterprise states that it has two parallel schemes; (i) the wage and benefits scheme established by agreement No. 01, which staff holding managerial and technical posts and positions of trust may join on a voluntary basis; and (ii) the conventional scheme, which applies to workers belonging to trade unions that sign the collective agreement, and to staff who, in accordance with labour standards, avail themselves of the collective labour agreement, and who consequently pay the union the respective ordinary dues.
8. 246. The enterprise highlights that the dual nature of the system is based on: (i) the free will of the workers, as the applicability of agreement No. 01 is not mandatory, and that staff holding managerial and technical posts and positions of trust can decide to avail themselves of the collective labour agreement; (ii) the principle of the inseparability of regulations enshrined in section 21 of the Substantive Labour Code, which involves the full application of each scheme. The enterprise adds, in this regard, that: (i) from a constitutional and legal point of view, the functioning of the two labour schemes at Ecopetrol SA is perfectly valid and it is in line with the principle of freedom to join or not join a trade union organization, which regulates the right to freedom of association in Colombia; (ii) the enterprise has not created employment conditions and benefits that discriminate against unionized workers; and (iii) the same collective agreement regulates elements related to managerial staff and specifically refers to agreement No. 01, which clearly demonstrates the mutual understanding with the trade union organizations regarding the coexistence of the two wage and benefit schemes within the enterprise.
9. 247. The Government then provides its own observations, in which it confirms the indications of the enterprise that no violations of the ILO Conventions on freedom of association have taken place. The Government highlights in particular that: (i) since a decision has yet to be issued by the national courts on the request for the lifting of the trade union immunity of Mr Edwin Palma, Mr Joaquín Padilla and Mr Wilmer Hernández, the aforementioned trade union leaders continue to be employed by the enterprise; (ii) the indication by the enterprise, according to which the wage deductions denounced by the complainant organizations were carried out on the grounds that any unjustified absences of workers result in the non-payment of wages for the duration of the absence, due to the lack of services provided, which are in full conformity with the law and with the jurisprudence of the Constitutional Court; (iii) it cannot be established, in the present case, whether deductions have been made on the grounds of trade union activities, as no evidence has been provided to demonstrate so; and (iv) labour outsourcing is legal in Colombia, and specific regulations have been adopted to make inspection and enforcement of the regulations applicable to labour outsourcing more efficient and comprehensive.
10. 248. With respect to the objection of the complainant organizations to the coexistence of two wage schemes, the Government underscores the statement made by the enterprise regarding the freedom of workers holding managerial and technical posts and positions of trust to choose whether to avail themselves of the collective labour agreement, or to opt for the application of agreement No. 01. The Government adds in this regard that: (i) the Council of State ruled on the legality of the matter, and several rulings have been issued by the different domestic courts, including the Constitutional Court, where reference has been made to this matter; and (ii) constitutional jurisprudence has pointed out that the right to organize includes the individual right to organize trade unions, and freedom of association, as nobody can be obliged to join or not join a trade union. Lastly, the Government indicates that, through the Ministry of Labour, it monitored the investigation requested by the trade union organization into alleged acts violating the right to freedom of association, in which charges were filed and the corresponding administrative proceedings to impose penalties were initiated.
11. 249. In a communication dated 20 March 2017, the Government provides information on the resolution by the labour administration of the administrative labour complaint filed on 22 May 2014 by USO (file No. 84497) for alleged acts violating the right to freedom of association and improper use of collective accords by the enterprise. By means of Decision No. 0119 of 19 January 2017, issued by the internal working group of the special investigations unit of the Ministry of Labour, the enterprise was held liable for the violation of the right to freedom of association and received a fine equivalent to 100 minimum monthly wages.
12. 250. In a communication dated 27 January 2022, the Government forwards further observations from the enterprise. In addition to reiterating the statements that it made in 2016, the enterprise updates a range of information related, first of all, to the situation of the three trade union leaders, regarding whom a request for the lifting of trade union immunity had been filed. The enterprise states that: (i) following a first-instance ruling in favour of the worker, the High Court of Cartagena and the Labour Appeals Chamber of the Supreme Court (rulings of 14 March and 31 July 2017) authorized the lifting of the trade union immunity and dismissal for serious misconduct of Mr Wilmer Hernández; (ii) the High Court of Cartagena also authorized the lifting of the trade union immunity and dismissal for serious and minor intentional misconduct of Mr Joaquín Padilla by means of rulings of 31 July and 27 September 2018; (iii) however, the proceedings concerning the lifting of the trade union immunity of Mr Edwin Palma were concluded early with no substantial ruling handed down, and therefore the dismissal decision did not take effect; and (iv) Mr Palma continued to be employed by the enterprise until 29 October 2021, when the employment relationship was terminated by mutual agreement as part of a retirement plan approved by the executive board of the enterprise in 2019.
13. 251. The enterprise also indicates that, in compliance with section 471 of the Substantive Labour Code and, as it has been verified that the number of workers belonging to USO exceeds one third of the total number of workers directly employed by the enterprise, the extension of the collective labour agreement to all workers in the enterprise became effective as from 1 September 2016. The non-unionized workers who benefit from the collective labour agreement must pay the ordinary dues that unionized workers pay to USO, which, in accordance with the statutes of the trade union, are equivalent to 2 per cent of the monthly base wage of employees. By virtue of the option provided for in section 1(c) of Decree No. 2264 of 2013, the current remuneration and benefits of workers who notify the enterprise in writing of their wish not to have the collective labour agreement extended to them, will be maintained. The enterprise specifies that, at 31 December 2021, 78 per cent of its direct employees were beneficiaries of the collective labour agreement.
14. 252. The Government reiterates the statement that it made in its communication of 2016 and the indications of the enterprise. It underscores that the existence and activity of USO within the enterprise demonstrates that Convention No. 87 is not being violated. It reiterates that workers holding managerial and technical posts and positions of trust can freely choose whether to join a trade union and avail themselves of the collective labour agreement, or opt for the application of agreement No. 01, thus giving effect to the right to freedom of association, which has both a positive and a negative dimension that allows workers to join or not join a trade union. It also once again highlights that the Ministry of Labour has taken all necessary action to protect trade union rights through administrative investigations, inspections and monitoring.

C. The Committee’s conclusions

1. 253. The Committee observes that, in the present case, the complainant organizations denounce a series of acts violating freedom of association and the right to collective bargaining carried out by an enterprise from the oil sector, including the dismissal of union leaders of USO, the initiation of disciplinary and criminal proceedings against leaders and members of the trade union, failure to comply with the collective labour agreement, restrictions of the right to strike, and the existence of a benefits plan for non-unionized staff of the enterprise which allegedly undermines the exercise of freedom of association. The Committee notes the allegations by the complainant organizations that such acts are still being carried out on a continuous basis, despite the recommendations issued by the Committee in a previous case [Case No. 2946, 374th Report of the Committee]. The Committee observes the enterprise’s indications that its actions fully comply with the regulations on freedom of association, and the Government’s indications that: (i) the existence and activity of USO within the enterprise illustrate the respect of the enterprise for freedom of association; and (ii) the Ministry of Labour took all necessary action to ensure, in this case, the protection of trade union rights.
2. 254. The Committee notes that the complainant organizations firstly report the anti-union dismissals, which took place between 2012 and 2015, of USO vice-president, Mr Edwin Palma, and of Mr Joaquín Padilla and Mr Wilmer Hernández, who are also leaders of the trade union. They state that the dismissal of Mr Palma occurred following the publication of a post on a social media network, in which he exposed the salary of an executive of the enterprise in order to challenge the wage disparities in the enterprise, and that a court of first instance decided that the procedure followed for his dismissal violated the constitutional rules of the country. The Committee also notes the indications of the enterprise and of the Government that: (i) the decisions to dismiss the aforementioned trade union leaders were made on the grounds of serious misconduct; (ii) in the case of Mr Palma, the post published by the trade union leader violated fundamental rights, including the right to privacy; (iii) compliance was demonstrated with the procedures applicable to this kind of dismissal, in which workers may exercise their right to defence; (iv) due account was taken of the trade union leader roles of the aforementioned workers, and therefore, the courts were requested to authorize the lifting of their trade union immunity prior to their dismissal; (v) in the case of Mr Padilla and Mr Hernández, the courts accepted, by means of final rulings of 2017 and 2018, the request for the lifting of their trade union immunity, and Mr Padilla and Mr Hernández were dismissed; (vi) in the case of Mr Palma, the courts did not reach a decision on the substance of the request for the lifting of his trade union immunity, and he was therefore not dismissed; and (vii) Mr Palma continued to be employed by the enterprise until 29 October 2021, when the employment relationship was terminated by mutual agreement as part of a retirement plan.
3. 255. The Committee duly notes these elements. The Committee observes that the dismissal of Mr Palma did not go ahead, and that several years after the events, the parties decided to end his employment relationship by mutual agreement. The Committee will therefore not pursue the examination of these allegations.
4. 256. The Committee notes that the complainant organizations report the frequent use by the enterprise of disciplinary proceedings, criminal proceedings, wage deductions and warning letters in response to the trade union activities of leaders and members of USO. They allege that these actions constitute a “legal battle”, by means of which the enterprise seeks to hinder the functioning of the trade union. The Committee particularly notes that the complainant organizations refer to 88 disciplinary proceedings against 443 workers belonging to USO between 2014 and 2015, and to 28 criminal proceedings against leaders of the trade union in the two years prior to the complaint. The Committee notes the Government’s indications that: (i) the enterprise does not exercise its disciplinary authority for anti-union purposes, but rather in response to violations of contractual or legal obligations by certain workers; (ii) there have been frequent episodes of trade union activities carried out during working hours, without the authorization of the employer, by members and leaders of USO; (iii) these situations result in wage deductions for the absence of provision of services, and may give rise to warning letters and disciplinary actions; (iv) the complainant organizations do not provide evidence of specific violations of freedom of association.
5. 257. The Committee duly notes these various elements. While it notes that the allegations by the complainant organizations contain few details, the Committee observes that the allegations report the lack of effect given to the legal and administrative proceedings that the complainant organizations indicate they initiated regarding the alleged anti-union acts carried out by the enterprise. In this regard, the Committee recalls that it has considered that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1138]. The Committee therefore trusts that the Government will ensure that all the administrative and legal proceedings initiated by USO in relation to the facts of the present case have been examined and settled without undue delay and in conformity with freedom of association.
6. 258. The Committee further observes the contrasting nature of the views of the enterprise and the complainant organization regarding the existence of retaliation for trade union activity in the enterprise and on the methods employed by USO for the exercise of its trade union activity. In this regard, the Committee recalls that such facilities should be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, and that the granting of such facilities shall not impair the efficient operation of the enterprise concerned. In the light of the above, and observing that the enterprise and USO signed, together with other trade union organizations, a new collective agreement for the period 2018–22, the Committee invites the Government to bring together the parties in order to, within the framework of their contractual relations, establish, by mutual agreement, the arrangements for the exercise of trade union activities, and thus ensure both the effective representation of workers and the efficient functioning of the enterprise.
7. 259. Regarding the allegations of failure to comply with the collective labour agreement in force at the time when the complaint was filed, the Committee notes that reference is made in particular to section 9 of the collective labour agreement concerning the access arrangements for trade union leaders within the enterprise. Observing once again the diverging views of the parties on this matter, which is also related to the exercise of trade union activities in the enterprise, the Committee refers to its conclusions contained in the previous paragraph.
8. 260. Concerning the exercise of the right to strike, the Committee notes the complainant organizations’ allegations concerning: (i) the requests filed before the courts by several contracting enterprises for work stoppages to be declared illegal; (ii) the disciplinary proceedings initiated and the requests filed for the courts to cancel the registration of USO, in response to the work stoppages; and (iii) the failure to issue new legal regulations on strike action in the oil sector, as required by the Constitutional Court and as recommended by the Committee on Freedom of Association. The Committee also notes that the enterprise maintains that: (i) the current regulations on strike action applicable to the oil sector and to essential public services in general allow for the protection of the public interest and are not contrary to the ILO Conventions; and (ii) the penalties that can be applied to USO or to its members for non-compliance with these regulations do not constitute a violation of freedom of association. Recalling that it has already expressed an opinion on this matter in a previous case [see Case No. 2946, 374th Report of the Committee, para. 257], the Committee refers to its recommendation issued on that occasion, and hopes that the Government will take, without delay, the necessary measures to review the legislation in the sense referred to above.
9. 261. With regard to the alleged anti-union nature of agreement No. 01 adopted by the enterprise in 1977, the Committee notes, first of all, the complainant organizations’ allegations that: (i) agreement No. 01 establishes better working conditions and benefits for workers holding managerial and technical posts and positions of trust than those provided for in the collective labour agreement; (ii) agreement No. 01 (which, according to the complainant organizations, constitutes a benefits plan comparable in its purpose and effects to a collective agreement that legislation allows enterprises to sign exclusively with non-unionized workers) is used to control the growth of the trade union, in order to weaken the conventional scheme and reduce the capacity of USO to exercise the right to strike; and (iii) in 2014, USO filed an administrative labour complaint concerning the anti-union nature of agreement No. 01. The Committee also notes the enterprise’s indications that: (i) the enterprise has had two wage and benefits schemes since 1977; (ii) these two wage schemes are governed firstly by the free will of the workers, as the applicability of agreement No. 01 is not mandatory and staff holding managerial and technical posts and positions of trust can decide to avail themselves of the collective labour agreement; (iii) they are also governed by the principle of the inseparability of regulations, enshrined in the Substantive Labour Code, which implies the full application of each scheme; (iv) the content of agreement No. 01 does not discriminate against unionized workers, but rather allows for the staff of the enterprise to fully exercise both the positive and negative dimensions of freedom of association; (v) in compliance with section 471 of the Substantive Labour Code, and given that the number of workers belonging to USO now exceeds one third of the total number of workers directly employed by the enterprise, the application of the collective labour agreement was extended to all workers in the enterprise as from 1 September 2016; (vi) non-unionized workers who benefit from the collective labour agreement must pay the ordinary union dues to USO, which, in accordance with the statutes of the trade union, are equivalent to 2 per cent of the monthly base wage of employees; (vii) as prescribed by law, the current remuneration and benefits of workers who notify the enterprise in writing of their wish not to have the collective labour agreement extended to them, will be maintained; and (viii) at 31 December 2021, 78 per cent of the workers directly employed by the enterprise were beneficiaries of the collective labour agreement. The Committee lastly notes the Government’s indications that: (i) the aforementioned two wage schemes in the enterprise protect both the freedom to join or not join a trade union; (ii) the Council of State and the other high courts in the country confirmed the validity of agreement No. 01; and (iii) following the administrative labour complaint filed by USO concerning alleged acts violating the right to freedom of association and improper use of collective agreements, the internal working group of the special investigations unit of the Ministry of Labour, by means of a decision of 19 January 2017, held the enterprise liable for the violation of the right to freedom of association, and issued it with a fine equivalent to 100 minimum monthly wages.
10. 262. The Committee observes that it is clear from the above-mentioned elements that: (i) since 1977, there have been two parallel labour and benefit schemes for staff holding managerial and technical posts and positions of trust, the first of which is governed by the collective labour agreement, and the second of which is governed by agreement No. 01 which was adopted unilaterally by the enterprise, and the validity of which was recognized by the high courts in the country; (ii) agreement No. 01 was created for staff holding managerial and technical posts and positions of trust who did not wish to join a trade union; (iii) each scheme must be applied fully and the same worker cannot receive benefits from both systems; (iv) since 2016, the collective labour agreement no longer applies only to members of USO but to all workers in the enterprise, due to the fact that USO now represents over one third of workers directly employed by the enterprise; (v) the non-unionized workers to whom the collective labour agreement applies must pay trade union dues equivalent to 2 per cent of their base wage; (vi) however, the scheme governed by agreement No. 01 remains in force for staff holding managerial and technical posts and positions of trust who decide not to join the trade union and not to avail themselves of the collective labour agreement; and (vii) by means of a decision of 2017, the labour administration fined the enterprise on the grounds that agreement No. 01 provided for benefits that were more favourable than those in the collective labour agreement, and that this situation affected the freedom of workers from the enterprise to join a trade union.
11. 263. The Committee duly notes these elements. In light of the penalty imposed by the labour administration, the Committee recalls that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and the persons responsible for such acts should be punished [see Compilation, para. 1076]. In this regard, the Committee underscores that workers who adhere to agreement No. 01 on a voluntary basis should not have a more advantageous situation than those who benefit from the collective labour agreement in exchange for the payment of trade union dues equivalent to 2 per cent of their base wage. The Committee also recalls that in a number of cases concerning Colombia, it has indicated that the conclusion, with workers who are not union members or who leave their trade union, of collective accords which provide better terms than the collective agreements, serve to discourage collective bargaining as laid down in Article 4 of Convention No. 98 and that collective accords should not be used to undermine the position of the trade unions [see 324th Report, Case No. 1973, 325th Report, Case No. 2068, 332th Report, Case No. 2046, 350th Report, Case No. 2362, 362nd and 368th Reports, Case No. 2796, 387th Report, Case No. 3150]. While it notes that agreement No. 01 was adopted unilaterally by the enterprise, the Committee observes that this instrument, which is reserved for non-unionized workers, is an alternative to the collective labour agreement. The Committee therefore invites the Government to take the necessary measures to ensure that agreement No. 01 does not undermine the freedom of workers from the enterprise to join or not join a trade union, or the capacity of the trade union organizations concerned to collectively negotiate the working conditions and terms of employment of their members.