Rapport intérimaire - Rapport No. 322, Juin 2000

1. 144. The complaint is contained in a communication from the EVERFIT-INDULANA Clothing Workers Trade Union of Colombia (SINTRA EVERFIT-INDULANA) and the National Textile and Clothing Industry Trade Union (SINTRATEXCO) dated 14 September 1999. The General Confederation of Democratic Workers (CGTD) associated itself with the complaint in a communication dated 17 November 1999. The Government sent its observations in a communication dated 9 March and 9 May 2000.
2. 145. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 146. In their communication dated 14 September 1999 SINTRA EVERFIT-INDULANA and SINTRATEXCO state that Confecciones Colombia Ltda. began in 1996 to operate associative labour cooperatives with workers from other textile companies. This led, as it were, to a process of "delabourization", with the members of the cooperatives appearing as the owners rather than as workers bound by an employment contract. The complainants claim that the cooperatives are a sham, since they are managed by the employers and since the workers work in the same place, with the same chiefs and with the same machinery as those still with Confecciones Colombia Ltda. Specifically, the complainants state that in 1996 the company had 1,750 workers and two trade union organizations (which together had 440 members), and that the same year saw the creation of associative labour cooperatives - which come under a different set of regulations from the labour legislation - that virtually put an end to collective employment. In 1997 the company's fixed-term workers were offered contracts with the cooperatives (with a 15 per cent cut in wages and the loss of their acquired rights under the collective agreement); those who did not accept were dismissed. In October 1997 the membership of the complainant organizations dropped to 380; in September 1998 the company had 490 directly employed workers (of which 177 were members of the complainant organizations) and 1,200 workers belonged to the cooperatives; in February 1999 the enterprise ordered a mass dismissal of cooperative workers. At the time of the complaint the company had 300 directly employed workers, of whom 168 were covered by the collective agreement and 134 were members of the complainant organizations, the rest of the company consisting of 1,000 workers in the cooperatives. According to the complainants, the creation of the associative labour cooperatives in Confecciones Colombia Ltda. has had disastrous consequences for the workers and their unions.

B. The Government's reply

1. 147. In its communication dated 9 March 2000 the Government states that, as soon as it received the complaint, it ordered a follow-up inquiry which led to the adoption of Decision No. 158 of May 1999. The facts that led to the adoption of the decision were: (a) the presumed illegal operation of the cooperatives; (b) non-compliance with section 70 of Act No. 79 of 1998 - the framework act for cooperatives; (c) violation of cooperative rights and of the principles of solidarity; (d) violation of article 143 (equal pay for equal work) of the Labour Code; (e) violation of section 6 of Act No. 79 of 1998; (f) the operation of cooperatives within the premises of Confecciones Colombia Ltda.
2. 148. The Government states that:
   • -- regarding point (a), the cooperatives were found to be operating legally, as they meet the legal requirements and have been duly authorized by DANSOCIAL;
   • -- regarding point (b), there is no violation of section 70 of Act No. 79 of 1988 so long as it is the cooperative that set the disciplinary standards, pays for the work or engages in any procedure provided for in the rules and regulations governing associative work approved by the Ministry by Decision No. 130 of November 1995;
   • -- regarding point (c), there is no violation of cooperative values or of the principles of solidarity, given that the legislation in Colombia explicitly provides for the existence of relations for the provision of services, whether as associated workers, employees, professional services, etc., provided only that it meets with constitutional and legal requirements;
   • -- regarding point (d), associative labour cooperatives come under special regulations governing relationships with their members, which differ from the Labour Code. Furthermore, section 9 of Decree No. 468 of 1990 stipulates that "associative work cooperatives that comply with the law shall regulate working arrangements with their members within the framework of a social protection, social security and compensation scheme set out in the statutes of the cooperatives and in the rules and regulations adopted thereunder";
   • -- regarding point (e), a temporary loan and restitution contract exists between the associative work cooperatives and EVERFIT-INDULANA for the use of its premises. Decision No. 158 of 25 May 1999 accordingly orders that no measures should be taken against the associative labour cooperative known as "Participemos, Coodesco y Cootescom" and that the claimant shall be free to initiate proceedings through the ordinary courts in respect of the alleged infringement of section 6 of Act No. 79 of 1998.
3. 149. In its communication of 9 May 2000, the Government indicates that it initiated an administrative investigation concerning the allegations of employment offer in the cooperatives and the massive dismissals which took place in February 1999.

C. The Committee's conclusions

1. 150. The Committee observes that the complainants allege that in 1996 Confecciones Colombia Ltda. began operating associative labour cooperatives with workers from other textile companies. The result was, as it were, a process of "delabourization", with the members of the cooperatives appearing as their owners rather than as workers bound by an employment contract. Specifically, the complainants allege that: (1) the cooperatives are a sham, since they are managed by the employers and since the workers work in the same place, with the same chiefs and with the same machinery as those still with Confecciones Colombia Ltda.; (2) in 1997 the company's fixed-term workers were offered contracts governed by the labour legislation in the cooperatives (with a 15 per cent cut in wages and the loss of their acquired rights under the collective agreement) and that those who did not accept were dismissed; (3) in February 1999 the company ordered a mass dismissal of cooperative workers; and (4) the creation of the associative labour cooperatives in Confecciones Colombia Ltda. has had disastrous consequences for the workers and their trade union organizations (according to the complainants, in 1996 the two trade union organizations together had 440 members out of a total of 1,750 workers while at the time of the complaint the company had 300 workers, of whom 168 were covered by the collective agreement and 134 were members of the complainant organizations, the rest of the company consisting of 1,000 workers in the cooperatives).
2. 151. Regarding the allegation that the cooperatives are a sham, the Committee notes the Government's statement that the legislation allows for the existence of a relationship for the provision of services and that a loan and restitution contract exists between the associative labour cooperatives and EVERFIT-INDULANA that allows for the provision of services in the company by the members of the cooperatives being cooperatives that are completely independent of the company. As to the allegation that the company workers were threatened with dismissal if they did not accept employment in the cooperatives, and with regard to the mass dismissals, the Committee notes the Government's statement that it initiated an administrative investigation. The Committee requests the Government to ensure that this investigation is thorough and that it covers all of the allegations made in this case and to transmit the results thereof.
3. 152. Similarly, so that it can rule on this case in full knowledge of the facts, the Committee requests the complainants and the Government to inform it whether workers in the cooperatives have the right to join trade unions.