Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 408, Octubre 2024

1. 266. The complaint is contained in communications dated November 2021 and 22 August 2022 submitted by the Single Confederation of Workers of Colombia (CUT) and the Colombian Ports Union.
2. 267. The Government of Colombia sent its observations on the allegations in communications dated 4 August, 20 September and 10 October 2022 and September 2024.
3. 268. 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 complainant’s allegations

1. 269. The complainant organizations allege that, during the negotiation of a collective agreement within the Impala SA port enterprise (“the enterprise”), the Ministry of Labour failed to respect the right to strike of workers belonging to the Colombian Ports Union (“the trade union”) by: (i) firstly, unilaterally convening an arbitration tribunal despite the fact that the enterprise’s activities do not constitute an essential public service and the majority of workers did not vote for the establishment of such a tribunal; and (ii) validating an irregular vote of non-unionized workers organized by the enterprise to bring an end to a strike that was called by the trade union in accordance with the applicable regulations. In a second communication, the complainant organizations also allege that, in violation of trade union immunity, in 2021 and 2022 the port enterprise carried out dismissals and disciplinary sanctions against a number of workers because of their participation in in trade union meetings.
2. 270. With regard to the allegations relating to the exercise of the right to strike, the complainant organizations provide the following background: (i) the arbitration award in force between the enterprise and the trade union coexists with a collective accord between the enterprise and the non-unionized workers that establishes better working conditions, constituting anti-union conduct; (ii) on 15 December 2020, the trade union submitted a list of demands to the enterprise; (iii) the enterprise refused to negotiate in good faith and declined to give the trade union information that was important to the negotiation process; (iv) on 9 January 2021 the direct settlement stage came to an end, and although the trade union proposed extending it with the aim of attempting to reach an agreement, the enterprise refused, leading the trade union, in line with article 444 of the Substantive Labour Code, to conduct a vote of all the enterprise’s unionized and non-unionized workers to allow them to decide whether to resolve the collective dispute through arbitration or strike action; (v) since the trade union does not comprise half the enterprise’s workers, it was required by the Substantive Labour Code to win the support in the vote of 50 per cent plus one of all the enterprise’s workers, both unionized and non-unionized; (vi) although the trade union, on several occasions and in advance using its fundamental right of petition, requested a list of all the enterprise’s workers so as to invite them to a meeting as established under the Substantive Labour Code, the enterprise refused to do so, instead providing a series of different figures without names, posts or information that would allow workers to be invited to the meeting; and (vii) based on a request from the enterprise on 13 January 2021, the Ministry of Labour sent a request to the trade union for information so as to establish an obligatory arbitration tribunal, despite the fact that the relevant legal requirements were not met since the workers had not agreed to the convening of such a tribunal and the matter did not relate to an essential public service.
3. 271. The organizations then provide information on the trade union’s organization of strike action starting on 1 February 2021, stating that: (i) without being able to consult the full list of the enterprise’s workers, and based on information published in the business register indicating that there were 177 workers, the trade union organized a general meeting of workers on 20 January 2021 to allow them to decide between strike action and an arbitration tribunal; (ii) owing to the rules in force during the COVID-19 pandemic, votes were cast electronically; (iii) for the avoidance of doubt as to whether the process adhered to the applicable regulations, the trade union requested that it be monitored by a labour inspector; (iv) a total of 111 workers voted, with 91 voting in favour of a strike and 20 in favour of an arbitration tribunal; (v) after a final attempt was made to reach agreement via the negotiation process, on 25 January 2021 the trade union notified the Ministry of Labour that the strike at the enterprise would begin on 1 February 2021; and (v) in accordance with the law, the trade union ensured that safety and maintenance services continued and that the strike took place peacefully.
4. 272. The complainant organizations go on to provide information on the ending of the strike action following a vote of the enterprise’s non-unionized workers which, they allege, was plagued by irregularities. The complainant organizations allege in that regard that: (i) with logistical support from the enterprise, on 4 February 2021 the non-unionized workers, apparently on their own initiative, expressed their intention to carry out a vote with the aim of bringing an end to the strike; (ii) notification of that vote, which was held on 5 February 2021, was given via email just 14 hours in advance, and the trade union was not invited to participate; (iii) the vote did not prompt any investigation or monitoring by the Ministry of Labour and was merely audited by a notary; (iv) the Ministry of Labour did, however, indicate to the non-unionized workers how the question to be put to the workers should be structured, guidance that was disregarded (according to the complainant organizations, the possible answers to the question posed in the vote held on 5 February were: “yes, I want the suspension of activities with the definitive closure of operations to continue” or “no, I do not want the suspension of activities with the definitive closure of operations to continue”); (v) the vote included a group of 42 workers in the city of Barranquilla whose existence was unknown to both the trade union and the labour inspectorate; (vi) despite the shortcomings in the vote, the enterprise pressured the Ministry of Labour to remove the seals and end the strike. The Barrancabermeja and Bucaramanga Territorial Directorate of the Ministry of Labour refused to do so because of the enterprise’s openly arbitrary actions; (vii) nevertheless, using her preferential power and by means of Order No. 0002 of 10 February 2021, the Vice Minister of Labour Relations and Inspection travelled directly to Barrancabermeja with labour inspectors from Bogotá to remove the seals and end the strike; and (viii) by validating the vote, the Ministry failed to resolve the collective dispute since it acted only to end the strike, after which the Vice Minister left.
5. 273. The complainant organization states that in order to dispute the legality of the ending of the strike it lodged: (i) a tutela action [an injunction for the immediate protection of constitutional rights] that was declared inadmissible by the administrative court, which ruled that the dispute should be resolved by the arbitration tribunal; and (ii) a counterclaim to the claim lodged by the enterprise alleging that the strike was illegal, a counterclaim that was rejected by the High Court of Bucaramanga.
6. 274. In a communication dated 22 August 2022, the complainant organizations state that although the strike has ended, the collective dispute continues, and the workers have continued to take action to reach a fair and decent collective agreement. They allege that, against this backdrop, new violations of the rights of the unionized workers have occurred. The complainant organizations refer firstly to the action taken by the enterprise in response to a permanent assembly held by the trade union on 5 November 2021, alleging in that regard that: (i) the assembly was peaceful, there was no work stoppage and the river operations were not disrupted since the unionized workers participated in the assembly after their shifts; (ii) the enterprise later launched disciplinary proceedings to sanction 17 participants in the assembly, leading to the immediate dismissal of 9 workers on 16 November 2021 and the lodging of requests for legal authorization to lift the trade union immunity of 8 workers, including the Secretary General of the trade union’s branch committee; (iii) 11 workers lodged tutela actions before the municipal courts in Barrancabermeja in relation to the enterprise’s violation of their fundamental right to due process. Those actions were declared inadmissible in their entirety because other means of judicial defence were available to the workers to challenge the motive for their dismissal; (iv) the enterprise has subsequently prohibited all trade union leaders from entering the port terminal by applying article 140 of the Substantive Labour Code which allows for salaries to be paid without the provision of services; and (v) in its preliminary investigation undertaken at the request of the trade union, the Ministry of Labour launched administrative proceedings to impose penalties upon the enterprise and brought charges against it for allegedly violating the obligations set out in Article 1 of ILO Convention No. 98, in accordance with article 354(2)(a) and (d) of the Substantive Labour Code. That decision was communicated to the trade union on 16 May 2022.
7. 275. The complainant organizations go on to state that the enterprise lodged a claim against the trade union with the aim of having the strike action declared illegal. On 7 April 2022 the Labour Chamber of the Bucaramanga District Court ruled that the strike called by the trade union was legal.
8. 276. The complainant organizations also allege that: (i) nine workers belonging to the trade union were subjected to discriminatory disciplinary proceedings for participating peacefully in an information meeting at the entrance to the port terminal on 31 January 2022; (ii) those disciplinary proceedings led to disciplinary sanctions of the suspension of the workers’ employment contracts for up to two months.
9. 277. Lastly, the complainant organizations allege that: (i) the signing on 1 July 2021 of a collective labour accord with the enterprise’s non-unionized workers constitutes an anti-union act intended to discourage membership of the trade union and, additionally, the accord contains openly anti-union provisions; (ii) the enterprise undertakes discriminatory acts against unionized workers, including the denial of the trade union leave requested by the trade union and the exclusion of unionized workers from work paid at a higher rate and overtime; and (iii) the trade union’s attempt to engage in dialogue via the Special Committee for the Handling of Disputes was clearly rejected by the employer.

B. The Government’s reply

1. 278. In a communication of 4 August 2022, the Government firstly forwards the observations of the enterprise concerning the complainant organizations’ initial allegations. The enterprise states that the first round of negotiations with the trade union on a collective agreement was launched in 2016. Despite attempts to reach agreement, those negotiations ended in the convening of an arbitration tribunal, which made an arbitration award. The enterprise goes on to deny the complainant organizations’ allegations concerning the negotiation process that was launched in 2020. The enterprise states that in January 2021 it requested, in good faith, the convening of an arbitration tribunal since the trade union itself had indicated on social media that the enterprise provided an essential public service; the Ministry of Labour, however, never convened that tribunal.
2. 279. With regard to the vote on strike action organized by the trade union in January 2021, the enterprise states that: (i) it did provide the total number of its workers, in December 2020; (ii) the trade union did not allow voting by non-unionized workers, despite being a minority trade union; (iii) the remote voting mechanism used by the trade union was unsuitable because it did not require workers to identify themselves, as required by the regulations; and (iv) the vote lacked consent since the trade union informed the workers that only unionized workers would cease work and that the port would not close.
3. 280. With regard to the vote organized in February 2021 by the non-unionized workers, the enterprise states that: (i) the workers felt betrayed by the trade union for misleading them and because of the irregularities in the voting process; (ii) the enterprise provided transport, as the trade union had done on previous occasions; (iii) the presence of the Ministry of Labour is not required at votes, although the enterprise understands that the non-unionized workers did invite labour inspectors to the vote; (iv) it is true that workers located in Barranquilla participated in the vote, perfectly legitimately since they were counted among the 181 staff members; and (v) it is not true, however, that the Ministry of Labour was unaware of the existence of those workers. The enterprise states, lastly, that it respects the right of association and has, at all times, upheld the right to bargaining, favouring social dialogue to resolve differences. It adds that despite the numerous situations described in relation to the vote organized by the trade union, it complied with the labour authority’s decision concerning the closure of the port until an absolute majority of workers overwhelmingly expressed their desire to continue working.
4. 281. Based on information provided by the different departments of the Ministry of Labour, the Government then provides its position on the allegations in this case. The Government states that the Ministry acted in accordance with legal procedures. It also states that it is untrue that the Ministry of Labour decided to convene an arbitration tribunal at the request of the enterprise, specifying in that regard that: (i) although the Ministry requested from the trade union the necessary documents to establish the viability of convening such a tribunal, the trade union did not respond to that request; and (ii) the documents provided by the enterprise alone did not meet the requirements for convening and establishing a tribunal, for which reason the Vice Minister of Labour Relations and Inspection decided not to grant the enterprise’s request.
5. 282. With regard to the launching of a strike by the trade union in February 2021, the Government states that: (i) since no agreement was reached on the list of demands submitted by the trade union, a vote was held on 20 January 2021 to decide between calling a strike and convening an arbitration tribunal, according to a record signed by a labour and social security inspector from the Special Office of the Ministry of Labour in Barrancabermeja; (ii) the start of the strike was declared on 1 February 2021, with Ministry of Labour officials applying the appropriate seals, and the strike ended on 5 February; and (iii) all of these procedures were carried out in line with articles 444 and 445 of the Substantive Labour Code.
6. 283. With regard to the end of the strike, the Government states that: (i) the Ministry’s actions were in accordance with the requests of the non-unionized workers, who, through a vote on 5 February 2021, decided not to continue the strike; (ii) through the preferential power granted to it in law, the Office of the Vice Minister of Labour Relations and Inspection appointed a labour and social security inspector from the Special Investigation Unit to oversee the proceedings under article 448 of the Substantive Labour Code; (iii) the matter was also addressed by two Ministry of Labour commissions, the first comprising the Vice Minister and an adviser that aimed to create a forum for social dialogue during the strike to resolve the collective dispute with the possible signing of a collective agreement between the parties, and the second comprising the inspection and oversight group, including a labour and social security inspector responsible for removing the seals in line with the decision made via the vote undertaken by the workers; and (iv) the appointment by the Vice Minister of a new labour inspector from outside the Barrancabermeja Office was not arbitrary, but done with the intention, firstly, of accelerating the process of applying the seals necessary for the strike called by the trade union, in line with a request from the enterprise’s legal representative owing to an alleged dispute between the director of the Special Office of Barrancabermeja and representatives of the enterprise and, secondly, of accelerating the removal of those seals once the decision had been made to end the strike through a majority vote of the enterprise’s workers.
7. 284. The Government goes on to state that after a new direct settlement stage ended on 9 March 2022: (i) the trade union requested on 17 March 2022 the Ministry of Labour to convene an arbitration tribunal; and (ii) through a decision of the Vice Minister, the tribunal was convened on 25 July 2022. The Government concludes that ILO Conventions Nos 87, 98 and 154 have not been violated in any way.
8. 285. In a communication of 10 October 2022, the Government sends its observations on the complainant organizations’ additional allegations relating to the dismissal of several unionized workers in November 2021. Firstly, the Government forwards the observations of the enterprise, which state that: (i) the events of 5 November 2021 are unrelated to the 2020 dispute surrounding the list of demands that originally prompted the complaint; (ii) as demonstrated by the complainant organizations themselves, the trade union members held a permanent assembly that occupied the workplace, hindering operations and creating physical and occupational risks; (iii) it is untrue that the work stoppage occurred only after the workers involved had finished their shifts. Rather, it occurred in the middle of their shift and was so prolonged that it was still under way when that shift ended and the next began; (iv) the enterprise launched disciplinary proceedings in order to respect due process, and those proceedings allowed it to verify that the workers stopped work suddenly during their working day while the enterprise was providing a public service; (v) the workers did not provide any prior warning of the demonstration; (vi) the enterprise delivers its services at a multimodal port that provides public services and where there is a range of occupational risks, and it is therefore unsafe for a group of demonstrators to be present in operational areas, as occurred initially; and (vii) the enterprise respected due process and concluded that the workers committed serious misconduct, and it terminated with just cause the work contracts of the persons who participated directly in the demonstration.
9. 286. The enterprise adds that: (i) all of those workers submitted tutela actions, all of which were considered by the constitutional courts, which concluded that the actions were irreceivable; (ii) currently, the leaders of the trade union continue to be employed, and the ordinary courts will decide whether there are grounds to lift their trade union immunity; (iii) the trade union lodged another tutela action in relation to which the court of second instance stated that “the ceasing of activity by the dismissed workers did not constitute trade union activity because their demands and collective disputes were subject to a process of convening an arbitration tribunal, which, it is worth clarifying, was archived at the time owing to a ‘lack of legal interest in concluding the proceedings’ according to a ruling of 7 December 2021” and that “even after the dismissal of its members (notification of which was provided on 16 November 2021), the trade union continued to function normally, lodging a new list of demands that is currently awaiting resolution by the new arbitration tribunal. It does not appear, therefore, that the organization’s very existence is jeopardized by the dismissal of the workers in question”; and (iv) the unlawful work stoppage occurred at the same time as a scheduled hearing as part of the enterprise’s disciplinary proceedings against trade union leader Mr Pablo King for sending its proprietary information to his personal email address.
10. 287. The enterprise goes on to comment on the declaration on the lawfulness of the work stoppage in February 2021, indicating that the ruling of the court of first instance that declared the legality of the strike in question did not address all of the arguments put forth by the enterprise, particularly with regard to the irregularities in the process of voting on the strike.
11. 288. The enterprise then refers to the actions of the trade union’s members on 31 January 2022, stating that: (i) the events are unrelated to the collective labour dispute concerning the lists of demands pending decision by the arbitration tribunal; (ii) some of the trade union’s leaders decided to arbitrarily occupy the entrance to the enterprise’s facilities, preventing the entry of pedestrians and vehicles, violating the right to work of persons who were attempting to enter the facilities and affecting the enterprise’s work and operations; and (iii) the application of article 140 of the Substantive Labour Code (relating to the payment of wages during suspension) to the trade union leaders while they await the court’s ruling on the lifting of their trade union immunity does not prevent them from contacting their members via social media.
12. 289. With regard to the collective accord on working conditions concluded with the non-unionized workers, the enterprise states that: (i) the collective accord predates the establishment of the trade union and is not, therefore, an anti-union instrument; (ii) the enterprise has always ensured equal financial conditions for unionized and non-unionized workers; and (iii) as expressed during all negotiations since 2016, the financial offers made to the trade union match the benefits provided for in the collective accord, and are never worse. Lastly, the enterprise indicates that it is always open to social dialogue, as demonstrated by its proposal to extend the direct settlement stage in March 2022. It cannot accept, however, the idea of waiving its right to request the courts to determine the legality or illegality of the work stoppages and other arbitrary acts carried out by the trade union.
13. 290. The Government then provides its own observations on the additional allegations, indicating firstly that, with regard to the collective bargaining process, the arbitration tribunal is being convened in order to analyse the list of demands and make the relevant arbitration award. The Government adds that the tutela actions brought by several workers dismissed for their participation in work stoppages were ruled irreceivable since the courts considered that the dispute should be settled in the ordinary justice system. The Government states, however, that the trade union does not provide evidence that it has brought action before the ordinary courts in relation to the alleged violation or that the aforementioned workers’ contracts were terminated because they belonged to the trade union. Lastly, the Government states that the trade union does not provide evidence of the alleged denial of trade union leave and exclusion of unionized workers from work paid at a higher rate and overtime.
14. 291. In a communication dated 5 September 2024, the Government forwards the additional observations of the enterprise, which state that: (i) since March 2024, the enterprise has been notified that its workers have joined other trade unions, including the UNEPG and the National Union of Transport Workers in Colombia; (ii) the enterprise and the UNEPG have formed a good relationship, leading to the signing of a collective labour agreement on 15 July 2024; and (iii) the enterprise subsequently invited the trade union to conclude an agreement that would extend the improvements agreed with the UNEPG as well as the agreements contained in the collective accord, but the trade union did not accept that offer.
15. 292. With regard to the legality of the work stoppage on 5 November 2021 by workers who were members of the trade union, the enterprise states that a second instance ruling was handed down on 12 April 2024 that rejected the claims regarding the illegality of the stoppage. Given, however, that the ruling violated the enterprise’s fundamental rights, a tutela action was lodged that is still awaiting a second instance ruling.
16. 293. In terms of the process of collective bargaining between the enterprise and the trade union, the enterprise indicates that the lack of agreement between the parties in February 2022 gave rise to the convening of an arbitration tribunal that made an arbitration award on 22 February 2023 which was contested by the trade union. The June 2018 arbitration award between the enterprise and the trade union therefore remains in force pending the Supreme Court’s ruling on the appeal that was lodged for the annulment of the arbitration award of 22 February 2023.
17. 294. Lastly, the enterprise provides information on the request to lift the trade union immunity of eight trade union leaders who participated in the work stoppage of 5 November 2021. Definitive second instance rulings have already been handed down in seven of those cases to deny permission to lift the trade union immunity of the workers concerned, and they therefore continue to perform their duties within the enterprise. A definitive court decision in the eighth case is pending.

C. The Committee’s conclusions

1. 295. The Committee observes that this case concerns allegations of acts contrary to freedom of association and the right to collective bargaining during the negotiation of a collective agreement between the Colombian Ports Union and an enterprise in that sector that began in December 2020. The Committee notes that the complainant organization alleges primarily that: (i) in January 2021 the Ministry of Labour convened, illegally and without the agreement of the trade union, an arbitration tribunal; (ii) the Ministry of Labour validated an irregular vote by the non-unionized workers based on which the strike called by the trade union in February 2021 was brought to an end; and (iii) the enterprise has committed a series of anti-union acts against the trade union’s leaders and members since the end of the strike. The Committee also notes that, for their part, both the enterprise and the Government state that the law has been obeyed.
2. 296. Based on the information provided by the parties, the Committee understands that the collective dispute to which this complaint relates has evolved as follows: (i) since 2018, an arbitration award has governed the working conditions of workers belonging to the trade union; (ii) on 15 December 2020 the trade union submitted a list of demands to the enterprise; (iii) the direct settlement stage concluded without agreement on 9 January 2021; (iv) on 13 January 2021 the enterprise requested the Ministry of Labour to establish a compulsory arbitration tribunal; (v) on 20 January 2021 the trade union organized a remote vote open to the enterprise’s unionized and non-unionized workers to decide whether to establish an arbitration tribunal or launch strike action; (vi) based on the result of that vote, which favoured strike action, the trade union determined that the strike would begin on 1 February 2021; (vii) owing to a series of difficulties in establishing the contingency plan, the strike effectively began on 5 February 2021; (viii) on the same day, the non-unionized workers of the enterprise organized a new vote to determine whether the strike should be brought to an end; (ix) based on the results of that vote, on 13 February 2021 the labour inspectors appointed by the Vice Minister of Labour Relations and Inspection ended the strike; (x) on 29 November 2021 the Ministry of Labour shelved the request for an arbitration tribunal that had been submitted by the enterprise on 13 January 2021; (xi) in January 2022 the trade union once again submitted a list of demands, the direct settlement stage having come to and end without agreement on 9 February 2022; (xii) at the request of the trade union, an arbitration tribunal was established on 25 July 2022; and (xiii) the arbitration award made by that tribunal on 22 February 2023 has been contested by the trade union before the Supreme Court of Justice. The Committee further observes that: (i) on 7 April 2022, the High Court of Bucaramanga refused the enterprise’s request for the strike to be declared illegal, a decision confirmed by the Labour Chamber of the Supreme Court in a ruling of 13 March 2024; and (ii) in both cases, the courts declared that they were not competent to consider the trade union’s counterclaim for the ending of the strike to be declared irregular.
3. 297. With regard to the alleged illegal convening of an arbitration tribunal by the Ministry of Labour in January 2021 contrary to freedom of association and the right to strike, the Committee notes that the complainant organizations allege that: (i) the enterprise refused to negotiate in good faith the list of demands submitted by the trade union on 20 December 2020, the direct settlement stage having come to an end without agreement on 9 January 2021; (ii) in accordance with article 444 of the Substantive Labour Code, the trade union, a minority trade union in the enterprise, held a vote of all the enterprise’s workers – both unionized and non-unionized – to allow them to decide whether the collective dispute should be resolved by means of arbitration, or whether a strike should be called; (iii) based on a request made by the enterprise on 13 January 2021, the Ministry of Labour sent a request to the trade union for information to establish a compulsory arbitration tribunal, even though the relevant legal requirements had not been met. The Committee also notes that the enterprise states that its request for arbitration tribunal to be convened was made in good faith since the trade union itself had stated on social media that the enterprise was providing a vital public service, but that the Ministry of Labour never convened that tribunal; and (iv) the Government states that, with regard to the enterprise’s request for an arbitration tribunal, the Ministry of Labour merely asked the trade union to provide a series of documents so as to establish the viability of convening such a tribunal, but the relevant requirements were not met and the Ministry therefore decided not to grant the enterprise’s request (decision of 29 November 2021).
4. 298. The Committee takes due note of these various elements and, in particular, of the aforementioned decision of the Ministry of Labour to shelve the enterprise’s request. The Committee also observes that the enterprise’s request of 13 January 2021 to convene an arbitration tribunal did not hinder the trade union’s organization and undertaking of strike action a few days later, with the Ministry of Labour having ensured that the different steps required by law in that regard were completed. In the light of the above, the Committee will not pursue its examination of this allegation.
5. 299. With regard to the decision of the Ministry of Labour, following a vote of the enterprise’s non unionized workers, to end on 13 February 2021 the strike action launched by the trade union, the Committee notes that the complainant organizations allege, firstly, that the vote was plagued by irregularities, since: (i) the vote, which took place on 5 February 2021 with logistical support from the enterprise, was held with just 14 hours’ notice via email, and the trade union was not invited to participate; (ii) the vote did not entail any inspection or monitoring by the Ministry of Labour, but was merely audited by a notary; (iii) the questions put to the voting workers were misleading, referring to “the suspension of activities with the definitive closure of operations”; and (iv) the vote included a group of 42 workers in the city of Barranquilla whose existence was unknown to both the trade union and the labour inspectorate, despite the trade union’s repeated requests for a complete list of workers. The complainant organizations also allege that the Barrancabermeja and Bucaramanga Territorial Directorate of the Ministry of Labour refused to end the strike because of the enterprise’s openly arbitrary actions and that, using her preferential power, the Vice Minister of Labour Relations and Inspection went directly to Barrancabermeja, accompanied by labour inspectors from Bogotá, to remove the seals and end the strike.
6. 300. The Committee notes the enterprise’s indications that: (i) the non-unionized workers’ actions were in response to the irregularities in the vote organized by the trade union; (ii) the enterprise provided transport, as the trade union itself had done on previous occasions; (iii) legislation does not require the presence of the Ministry of Labour at votes, but it understands that the non-unionized workers did invite labour inspectors to be present; and (iv) workers located in Barranquilla did indeed participate in the vote, perfectly legitimately since they were counted among the 181 workers declared by the enterprise. The Committee also notes that the Government states that: (i) the ending of the strike by the Ministry of Labour, based on the result of the majority vote of the enterprise’s workers, was carried out in line with legal requirements; and (ii) the appointment by the Vice Minister of Labour Relations and Inspection of a labour inspector from outside the Barrancabermeja Office also complied with the law and was not arbitrary but responded to an alleged conflict between the director of the Barrancabermeja Special Office and representatives of the enterprise, and it also allowed for the acceleration of both the beginning of the strike on 5 February 2021 and its ending on 13 February.
7. 301. The Committee takes due note of the elements provided by the parties and of their divergent positions concerning the regular nature and legitimacy of the vote held by the non-unionized workers on 5 February 2021. The Committee observes that the main points of contention revolve around: (i) the enterprise’s logistical support for the vote and the lack of involvement of the trade union in its organization; (ii) the participation of 42 workers in Barranquilla of whom the trade union is alleged to have been unaware; (iii) the type of questions put to the workers in the vote; and (iv) the lack of supervision of the vote by the Ministry of Labour.
8. 302. Based on the elements and attached information submitted by the parties, the Committee also observes that, in order to question the legality of the ending of the strike, the trade union has lodged an action for amparo [protection of constitutional rights] with the constitutional courts and a counterclaim in the legal case brought by the enterprise in an effort to have the strike declared illegal. The Committee observes that, in both cases, the courts declared themselves not competent to consider the legality of the procedures followed to end the strike and that there is no information on the matter’s possible referral to the administrative dispute courts. In view of the above, while emphasizing the importance of swift legal proceedings to determine the legality of action and administrative decisions in relation to collective labour disputes, the Committee requests the complainant organizations to provide information on any other legal action taken with regard to the regular nature of the ending of the strike.
9. 303. With respect to the negotiations within the company, the Committee recalls that the Collective Agreements Recommendation, 1951 (No. 91), emphasizes the role of workers’ organizations as one of the parties in collective bargaining; it refers to representatives of unorganized workers only when no organization exists. In these circumstances, direct negotiation between the company and its workers, without going through representative organizations where they exist, can in certain cases be detrimental to the principle by which collective bargaining between employers’ and workers’ organizations should be encouraged [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1343].
10. 304. With reference to the alleged anti-union acts against the trade union’s leaders and members following the end of the strike, the Committee takes note that the complainant organizations allege that: (i) following the workers’ holding of a peaceful permanent assembly after their shifts on 5 November 2021, the enterprise dismissed nine workers and requested the court to lift the trade union immunity of eight union leaders, including the Secretary General of the trade union’s branch committee; (ii) subsequently, the enterprise barred all the trade union leaders from the port terminal; (iii) these events gave rise to the launching of administrative proceedings by the labour inspectorate to impose penalties on the enterprise (notification of which was given on 16 May 2022); (iv) nine workers belonging to the trade union were subjected to discriminatory disciplinary proceedings for participating peacefully in an information meeting at the entrance to the port terminal on 31 January 2022, with those proceedings leading to disciplinary sanctions of the suspension of the workers’ contracts for up to two months; (v) on 1 July 2021, the enterprise signed a collective labour accord with non-unionized workers, constituting an anti-union act intended to discourage trade union membership, and the accord contains openly anti-union provisions; and (vi) the enterprise has been denying trade union leave requested by the trade union and excluding unionized workers from work paid at a higher rate and overtime.
11. 305. The Committee takes note of the enterprise’s indications that: (i) the permanent assembly held on 16 November 2021 constituted a work stoppage without prior notice in the middle of a shift that affected the enterprise’s provision of a public service and caused occupational risks; (ii) due process was respected in the dismissal of the workers; (iii) all the tutela actions lodged by the dismissed workers were declared irreceivable by the courts; (iv) the information meeting of 22 February 2022 prevented the entry of pedestrians and vehicles and hindered the enterprise’s work and operations; (v) the payment of the wages of the suspended trade union leaders (under article 140 of the Substantive Labour Code) while they were awaiting judicial decisions did not prevent them from undertaking their representation function remotely; and (vi) the collective accord, which predates the establishment of the trade union, is not an anti-union instrument, the enterprise has always ensured equal financial conditions for unionized and non-unionized workers, and financial offers made to the trade union match the benefits provided for in the collective accord, and are never worse. The Committee also notes that, in a previous communication, the enterprise reports that seven of the eight requests to lift trade union immunity in order to be able to dismiss trade union leaders were rejected definitively by courts of second instance, with a definitive ruling pending in the last case, and that all the trade union leaders concerned continue to carry out their functions in the enterprise. The Committee also notes that the Government adds that the trade union does not provide evidence of the alleged denial of trade union leave or of the alleged exclusion of its members from work paid at a higher rate and overtime.
12. 306. The Committee notes the parties’ divergent positions on the two instances of industrial action that took place in November 2021 and February 2022, and on whether the dismissals and disciplinary sanctions consequently imposed by the enterprise were justified. The Committee observes in that regard that the parties refer to a series of administrative and judicial actions brought by the workers and to their outcomes, both provisional and definitive. The Committee observes in particular that the amparo actions lodged by the dismissed workers were declared irreceivable, mainly because the courts considered that the dismissals did not jeopardize the trade union’s existence and should therefore be dealt with by the ordinary courts, while seven of the eight requests for legal authorization to dismiss trade union leaders were rejected definitively, with a final ruling pending in the last case.
13. 307. In the light of the above, the Committee requests the Government and the complainant organizations to keep it informed of: the outcome of any ordinary legal action pursued in the labour courts by the dismissed workers and workers subject to other disciplinary sanctions; the administrative proceedings to impose penalties launched by the labour inspectorate on 16 May 2022; and the request for legal authorization to lift the trade union immunity of the eighth trade union leader.
14. 308. With regard to the alleged inability of the trade union leaders to undertake their representation function while subject to article 140 of the Substantive Labour Code (payment of salaries without having to fulfil duties by order of the employer), the Committee considers that, when a meeting with trade union members is held, their union representatives should be granted access to the workplace to participate in such a meeting so as to enable them to carry out their representation function [see Compilation, para. 1592]. In the light of the above, the Committee stresses that the ability to communicate remotely for the purposes of representation cannot wholly substitute access to workplaces. Observing, however, that the trade union representatives subject to a request for legal authorization to lift their immunity have returned to work at the enterprise, the Committee will not pursue its examination of this allegation.
15. 309. Regarding the alleged anti-union nature of the collective accord signed by the enterprise with non unionized workers on 1 July 2021, the Committee recalls that it has on numerous occasions [see in particular Cases Nos 1973, 2046, 2068, 2355, 2362, 2493, 2796, 2801, 2877 and 3150] considered the alleged anti-union nature of the labour accords which, according to article 481 of the Substantive Labour Code, an employer may sign with non-unionized workers in the enterprise where less than one third of the workforce belongs to a trade union organization. While noting that the enterprise indicates that the existence of the collective accord predates the establishment of the trade union within the enterprise and that the complainant organizations refer to the conclusion of a new collective accord on 1 July 2021, the Committee recalls that it considered that the Government must ensure that the conclusion of collective accords negotiated directly with the workers is only possible in the absence of a trade union and that it is not carried out in practice for anti-union purposes [see Case No. 2796, 368th and 362nd Reports, and Case No. 3150, 387th Report, para. 336]. In the light of the above, the Committee refers the legislative aspect of this case to the Committee of Experts on the Application of Conventions and Recommendations.
16. 310. With regard to the specific information provided by the parties in this case, the Committee notes particularly the enterprise’s indication that it has always ensured equal financial conditions for unionized and non-unionized workers and that in negotiations with the trade union its financial offers have always matched the benefits provided for in the collective accord.
17. 311. The Committee observes that if the discussions between the enterprise and the trade union organizations were limited to reiterating the conditions already established with the non-unionized workers without room for genuine negotiation, such a situation would jeopardize the raison d’être of the collective bargaining process and, ultimately, trade union membership. In that regard, the Committee recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [see Compilation, para. 1231]. On this basis, the Committee requests the Government to take the necessary measures to encourage and promote the full development and use of voluntary negotiations between the enterprise and the various trade union organizations, including the Colombian Ports Union, and so that the existence of a collective accord with non-unionized workers does not undermine the collective bargaining process. The Committee requests the Government to keep it informed in this regard.
18. 312. Lastly, given the absence of details on the alleged denial of trade union leave and exclusion of unionized workers from work paid at a higher rate and overtime, the Committee will not pursue its examination of these allegations.