Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 351, Novembre 2008

1. 426. The Electricity Workers’ Union of Colombia (SINTRAELECOL) presented its complaint in communications of 22 May and 15 July 2007. The World Federation of Trade Unions (WFTU) presented further allegations in a communication of 16 August 2007. The Government sent its observations in communications dated 31 October 2007 and 29 February and 27 August 2008.
2. 427. 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. 428. In its communications dated 22 May and 15 July 2007, SINTRAELECOL alleges: (1) the refusal by the enterprise Termotasajero SA to grant periods of trade union leave provided for under section 10 of the collective agreement; (2) the non-respect of the guarantee of trade union immunity for various trade union leaders through the refusal to grant them the benefits established under the collective agreement, such as food or appropriate respect of wages; (3) wage discrimination against unionized workers who have not received a wage increase since 2002; (4) the enterprise’s request, dated 5 May 2005, to dismiss 30 workers. The Ministry of Social Protection only authorized the termination of 16 of the employment contracts involved but according to SINTRAELECOL only unionized workers were affected.
2. 429. The complainant organization adds that the process of notification of the decision to proceed with the collective dismissal was flawed, as was the process of obtaining authorization from the Ministry of Social Protection for the dismissals.
3. 430. The complainant organization states that, through resolution No. 1999 of 20 July 2007, the termination of 16 employment contracts was ratified regardless of the fact that, in the meantime, between the date of issue of resolution No. 002332 of 4 September 2006, authorizing the termination of the 16 employment contracts, and the issuing of resolution No. 1999, 13 workers had taken old-age retirement, been dismissed and/or opted for voluntary retirement.
4. 431. As to the enterprise’s refusal to pay the unionized workers a wage increase as of 1 March 2002, the complainant organization states that a tutela (protection of constitutional rights) action was brought and, following a ruling in the second instance issued by the 34th Civil Court of the Bogotá Circuit, the enterprise was ordered to pay the increase. However, the enterprise failed to pay the increase retroactively dating back to 2002 as ordered by the court, thus bringing itself into contempt of court before the competent authorities, a situation which is still pending.
5. 432. In its communication of 16 August 2007, the WFTU alleges that the enterprise Empresa de Energía del Pacífico (EPSA) and the Compañía de Electricidad de Tuluá (CETSA) refused to bargain collectively with SINTRAELECOL Cauca branch.
6. 433. At the same time they are carrying out an anti-union policy through the progressive elimination of the claims contained in the collective labour agreements, as well as the minimization and exclusion of trade union guarantees and freedoms through cutbacks affecting trade union leave and supplementary benefits.
7. 434. The WFTU also alleges that in March 2007 the National Union of Mining and Power Industry Workers (SINTRAMIENERGETICA) presented a list of demands to the enterprise Operadores Mineros del César (OMC) but that the latter refused to bargain. To date the dispute has not been resolved.
8. 435. The WFTU also refers to anti-union dismissals carried out within the enterprise Productos de Aluminios Munal SA and to threats against leaders of the Workers’ Trade Union (USO).

B. The Government’s reply

1. 436. In its communications dated 31 October 2007 and 29 February and 27 August 2008, the Government sends the following observations.
2. 437. As to the refusal to grant trade union leave to the leaders of SINTRAELECOL, the Government states that the trade union signed a collective labour agreement with Termotasajero SA which specifies that the enterprise shall grant paid trade union leave to the number of worker delegates determined by law to attend national assemblies labour-related training courses, trade union congresses and trade union meetings of the sector; Termotasajero SA shall grant permanent paid trade union leave for one or more workers elected to the national management committee or to the management committee of the federation or confederation to which SINTRAELECOL belongs and trade union leave for trade union meetings shall always be granted upon presentation of a request for attendance or an invitation.
3. 438. The Government states that the enterprise denies that it refused to respect the trade union leave enshrined in the collective labour agreement. In fact, during 2006 and 2007, Termotasajero SA granted 6,827 hours of trade union leave.
4. 439. The enterprise admits that on a number of occasions it refused to grant trade union leave to certain trade union leaders for reasons of service, as is allowed by the collective agreement which states that trade union leave shall be granted “whenever the number of absent workers is not so great that it adversely affects the normal functioning of the enterprise”.
5. 440. As to the allegations relating to the refusal to recognize the guarantee of trade union immunity, the Government states that, in accordance with the enterprise’s statements, trade union immunity was respected because the employment contracts of those individuals enjoying that privilege were not terminated, rather, having reviewed the clause in the agreement on wage benefits for workers with trade union immunity, the enterprise came to certain conclusions regarding the erroneous application of the supplementary food allowance and respect of the average wage of the workers. In fact, no obligation existed to provide food for the workers at the power plant or to individuals on permanent trade union leave, because the agreement states that food shall be provided to those workers lending their services to the company on a permanent basis. It should be pointed out that one of the workers concerned by this decision took his case to court on two occasions, requesting protection of constitutional rights, but his claims were rejected as being unfounded.
6. 441. As to the recognition of the wages of a trade union leader with permanent trade union leave, the Government states that the enterprise ascertained that the wages formula for trade union leave was being applied incorrectly and it therefore decided to apply it in the correct fashion. The worker concerned made use of the amparo (protection of constitutional rights) mechanism, which was granted until such a time as the ordinary labour courts decide whether Termotasajero SA’s interpretation of the clause of the agreement is founded or not.
7. 442. As to the allegations relating to wage discrimination, according to which workers belonging to SINTRAELECOL have for the last five years, unlike non-unionized workers, been denied a wage increase, the Government states that Colombian labour legislation grants trade unions the ability to denounce collective labour agreements, to present lists of demands and discuss new working conditions. It also grants trade union organizations the facility not to denounce collective agreements, but rather to extend them for successive six-month periods. SINTRAELECOL has not denounced the collective agreement since 2002 in an effort to avoid the review of certain clauses by the enterprise. It is only logical that the staff covered by the collective agreement should not have enjoyed a wage increase, given that the only way for an enterprise to increase wages legally is for the agreement to be denounced and for a list of demands to be presented.
8. 443. It is up to the workers to denounce the wage situation, given that, when it comes to issues covered by collective agreements, as in the present case, the employer cannot act unilaterally to increase or cut wages, for fear of violating ILO Convention No. 98 and therefore the agreement signed between the enterprise and the trade union organization.
9. 444. On the other hand, the Government states that, following a tutela action brought by the members of SINTRAELECOL, the 34th Civil Court of the Bogotá Circuit granted the workers provisional amparo until such a time as the ordinary courts issue a ruling. Therefore, Termotasajero SA is bound to pay those workers covered by the collective agreement the updated wage for the period 28 February 2002 to 31 May 2007 and onward.
10. 445. As to the request for dismissal, the Government states that, in accordance with the statements made by Termotasajero SA, the workforce had to be rationalized in order to take into account technological innovations and investment. To this end, the enterprise put forward a voluntary retirement plan to the trade union which was rejected. The enterprise then made use of the mechanism established under Colombian labour law to present the Ministry of Social Protection with a request for the mass dismissal of 30 persons. This Ministry issued an administrative act authorizing the termination of 16 employment contracts. The Ministry spent two whole years considering the request, before partially agreeing to it, having complied with the legal requirements.
11. 446. As to the allegations presented by the WFTU relating to the enterprises EPSA and CETSA, the Government states that the manager of the enterprise EPSA reports that the direct settlement phase was initiated, in accordance with the list of demands presented by SINTRAELECOL, and that, once that stage was exhausted without an agreement being reached, SINTRAELECOL decided to convene an arbitration tribunal.
12. 447. The Government states that the manager of the enterprise CETSA also reports that the direct settlement phase was initiated in that enterprise in the light of the list of demands presented by SINTRAELECOL.
13. 448. As to the allegations relating to anti-union acts by the enterprise CETSA, the Government states that this enterprise has concluded two collective labour agreements with SINTRAELECOL, maintaining under the second agreement all those extra-legal benefits granted under the first agreement, as well as substantial wide-ranging economic gains. In 2007, two workers joined SINTRAELECOL and immediately enjoyed all the guarantees and benefits included in the collective agreement. The enterprise currently has a total of 81 employees on open-term contracts; in 2007, one person was employed on the same contractual basis.
14. 449. In March 2006, the enterprise CETSA adopted a skills-based workforce management model owing to organizational adjustments brought on by technological changes, the consequent adaptation of procedures and the need to meet the requirements of clients in a competitive marketplace. The adjustments made in 2006 covered human, technical and administrative aspects and made it possible for the enterprise to contract two workers. Furthermore, channels of communication were established with all the workers and their representatives. Moreover, in the light of the complaint made by the trade union organization, the Ministry intervened to investigate, with the enterprise providing all the necessary information. It was found that the adjustment process undertaken by the enterprise did not in any way violate the law. Following its intervention, the Ministry of Social Protection issued a ruling in favour of the enterprise.
15. 450. As to the allegations relating to the minimization and exclusion of trade union guarantees and freedoms through cutbacks affecting the trade union leave and allowances necessary to the functioning of the trade union, the Government states that in 2007 the enterprise granted seven periods of trade union leave, along with the corresponding travel expenses, on top of the leave and travel expenses requested during bargaining.
16. 451. The Government adds that, to date, no collective agreement has been signed for the period 2007–08 and for this reason the allowances and benefits have been maintained at the levels set under the collective agreement for 2006–07.
17. 452. As to the allegations relating to the enterprise EPSA, the Government states that, in accordance with the statements made by the manager of the enterprise, the enterprise respects, protects and guarantees the right to and exercise of trade union freedoms, in accordance with the Political Constitution. In 13 years of existence seven collective labour agreements have been signed with SINTRAELECOL: during each of the bargaining processes the agreements have maintained all the substantial, far-reaching economic concessions.
18. 453. The Government adds that in 2007 six workers exercised their freedom of association and joined SINTRAELECOL. As a result, they immediately enjoyed all the guarantees and benefits bestowed by the collective agreement. The enterprise EPSA currently has a total of 698 workers, all of whom have open-term contracts with the enterprise. In 2007, 32 individuals were employed, all of them on the same contractual basis.
19. 454. The Government states that in 2006 the enterprise EPSA adopted a skills-based workforce management model based on technological changes in order to respond to the requirements of clients in a competitive marketplace. The adjustments made in 2006 covered all human, technical and administrative aspects. Moreover, these changes made it possible for the enterprise to take on another 162 workers on open-term contracts; channels of communication were set up between management and the entirety of the workforce and its representatives. The Government also states that the Ministry intervened in an administrative investigation and the enterprise provided all the information necessary. It was found that the adjustment process undertaken by the enterprise did not in any way violate the law. Following its intervention, the Ministry of Social Protection issued a ruling in favour of the enterprise.
20. 455. The Government adds that in 2007 the enterprise granted 51 periods of trade union leave, together with travel expenses, and gave the sum of 36,430,800 pesos to the trade union for its operations, in accordance with the collective agreement which establishes that “The enterprise EPSA shall support SINTRAELECOL on a monthly basis to the amount of seven monthly legal minimum wage payments, which shall be transferred in equal parts to the existing sub-directives.” This demonstrates how thoroughly the enterprise complies with the collective agreement. Given that no collective agreement was signed for the period 2007–08, the allowances and benefits have been maintained at the levels set under the collective agreement for 2006–07.
21. 456. As to the allegations made by the WFTU relating to the refusal by the enterprise OMC to bargain over the list of demands presented by the SINTRAMINERGETICA, the Government states, in accordance with the information provided by the general representative of the enterprise CMU that the enterprise OMC was an independent contractor with full technical and administrative autonomy in accordance with section 34 of the Substantive Labour Code. The enterprise OMC lent its services to the enterprise CMU as part of an agreement that consisted of operating mining teams for the extraction of coal and sterile material at the Yerbabuena mine, the concession for which is held by the enterprise CMU.
22. 457. The Government states, with regard to the presentation of the list of demands by SINTRAMIENERGETICA, that the abovementioned list was presented on 3 March 2006 by workers of the enterprise OMC belonging to the abovementioned trade union organization and consequently the employer granted the guarantees necessary to allow the process of collective bargaining to proceed, including tickets, travel expenses and accommodation in the city of Bucaramanga, the main base of the enterprise. As the parties failed to reach an agreement on the location at which negotiations were to take place, and on the cost of tickets and amount of travel expenses that the enterprise OMC was to cover for the trade union organization during the bargaining process, the trade union presented an administrative complaint against the enterprise for non-compliance with the duty to bargain concerning the list of demands presented by its workers.
23. 458. The Territorial Directorate of César began an administrative labour inquiry, which was ruled on in the first instance by the Coordinator of the Prevention, Inspection, Vigilance and Monitoring Group, leaving the parties free to have recourse to the courts should they consider that a legal dispute existed.
24. 459. The Government states that the general representative of the enterprise CMU reports that the enterprise OMC and the enterprise CMU agreed to terminate the commercial relationship on 31 July 2007, in so far as the enterprise OMC repeatedly alleged that the economic balance within the commercial relationship had been disrupted. At the time the commercial relationship between the two enterprises broke down there were 104 workers in the service of the enterprise OMC, working at the mines at Yerbabuena on contracts covering the duration of the operation. Once the agreement between the two enterprises was terminated, the operation for which the workers had been contracted ceased to exist and, consequently, the employment contracts were held to be at an end, in accordance with the Substantive Labour Code, section 61(a). Therefore, no workers were dismissed.
25. 460. The Government adds that, in accordance with the statements made by the enterprise, 31 workers whose contracts had expired decided to stay on the premises of the enterprise CMU, while the remaining staff blocked the access routes to the Jagua de Ibirico mining complex. The blockade, which was held to be clearly illegal, affected not only the operations of the enterprise CMU, but also those of other enterprises in the area. Trade union leaders and workers from the enterprise Carbones de la Jagua SA joined in the blockade and this led to the drawing up of a report of verification by a Territorial Directorate of the Ministry of Social Protection of César, following a request by the enterprise for the stoppage to be declared illegal given that it had lasted for over 20 days, thus causing prejudice to the mining enterprises, their employees and contractors, the nation, the department of César and the municipality of la Jagua de Ibirico. During the stoppage various attempts were made at mediation involving the local and national authorities, as well as the Ministry of Social Protection. Alternative solutions aimed at ending the blockade were considered. The Government states that the enterprise CMU presented a complaint, the purpose of which was to protect private property and the right to work of its employees.
26. 461. The enterprise was at all times willing to come to an agreement, putting forward proposals for the amicable resolution of the public order situation resulting from the labour dispute between the enterprise OMC and its former employees, a process in which the Ministry of Social Protection played an active role.
27. 462. Finally an agreement was reached and on 3 September 2007 it was decided that: (i) the enterprise Carbones de la Jagua SA would directly and without a trial period contract 20 former workers of the enterprise OMC, preferably from the region; and (ii) the enterprise OMC would pay financial compensation equivalent to three months’ basic wages to 59 persons not contracted by Carbones de la Jagua SA. The former workers of the enterprise OMC who did not wish to accept the abovementioned agreement were free to go before the ordinary labour courts in order to claim their rights.

C. The Committee’s conclusions

1. 463. The Committee observes that the present case refers to the allegations presented by the SINTRAELECOL relating to: (1) the refusal by the enterprise Termotasajero SA to grant trade union leave; (2) non-respect of certain benefits such as supplementary food allowances and the appropriate respect of paid trade union leave; (3) wage discrimination against unionized workers; and (4) the request to dismiss 16 workers within the enterprise. The case also refers to the allegations presented by the WFTU relating to: (1) the refusal by the enterprise EPSA and the CETSA to bargain collectively with SINTRAELECOL; and (2) the refusal by the enterprise OMC to bargain collectively with the SINTRAMIENERGETICA.
2. 464. As to the allegations presented by SINTRAELECOL relating to the refusal to grant trade union leave, the Committee notes that, according to the Government, the enterprise admits that on a number of occasions it refused to grant trade union leave but states that this was for reasons of service and adds that the trade union organization and Termotasajero SA signed a collective labour agreement which provides for the granting of paid trade union leave to its workers and that during 2006 and 2007 over 6,827 hours of trade union leave were granted. Given this information, the Committee will not pursue its examination of these allegations.
3. 465. As to the allegations relating to the non-respect of food allowances and the maintenance of wages for trade union leaders enjoying permanent trade union leave, the Committee notes that the Government states that the trade union immunity of the workers was respected and that those particular benefits had been granted in error. Those benefits were granted for a period of time to trade union leaders enjoying permanent trade union leave when the collective agreement, in fact, established said benefits for those who were working within the company on a permanent basis. With regard to the food allowances, the trade union leaders requested amparo on two occasions, with their requests being rejected as unfounded. As to the appropriate respect of wages, the trade union leader concerned lodged an amparo appeal, which has been granted while the courts in ordinary proceedings decide on the interpretation of the clause of the collective agreement relating to payment of wages to workers with trade union leave. The Committee requests the Government to take steps to ensure temporary payment of the abovementioned wages and to keep it informed of the outcome of the ordinary legal proceedings initiated.
4. 466. As to the allegations relating to wage discrimination against workers belonging to SINTRAELECOL, the Committee notes that, according to the complainant organization, the enterprise has refused, since 2002, to pay them a wage increase granted to non-unionized workers. Consequently, a tutela action was brought, in the light of which the 34th Civil Court of the Bogotá Circuit ordered that the increase be paid to the workers in question. The Committee notes that, according to the allegations, the enterprise has not complied with this ruling in that it has not paid the increase retroactively dating back to 2002 as ordered by the court. Thus, proceedings for contempt of court were brought before the competent authorities and are still pending. In this regard, the Committee notes the Government’s statement that, in accordance with Colombian legislation, when there is an existing collective agreement within an enterprise governing wages, the agreement must be amended if wages are to be increased. By law, in such a case the complainant organization must denounce the existing collective agreement as regards this point and present a list of demands. The Committee notes the Government’s statement that the workers covered by the collective agreement did not receive a wage increase because SINTRAELECOL failed to present a list of demands. The Committee notes that the Government refers to the granting of provisional amparo to the workers by the 34th Civil Court of the Bogotá Circuit until the courts in ordinary proceedings have decided whether there are grounds for the abovementioned wage increase. Given that, according to the allegations, the enterprise has not paid the abovementioned increase retroactively dating back to 2002 as ordered in the tutela ruling, the Committee requests the Government to report whether Termotasajero SA has made this payment and should the enterprise have failed to do so, to take the necessary steps to ensure compliance with the tutela ruling without delay and expects that the judicial authority will take into account the principle established through national case law and the ILO principles of freedom of association, prohibiting anti-union discrimination against unionized workers in relation to non-unionized workers when issuing a ruling within the framework of the ordinary proceedings. The Committee requests the Government to take all measures in its power to promote voluntary collective bargaining in good faith within Termotasajero SA.
5. 467. As to the allegations relating to the request by Termotasajero SA regarding the dismissal of 16 workers belonging to SINTRAELECOL, the Committee notes that, according to the allegations, the enterprise originally requested authorization to dismiss 30 workers but the Ministry of Social Protection authorized the dismissal of 16 and that these dismissals involved only unionized workers. The Committee notes that, according to the Government, the request for dismissal was made owing to the need to rationalize the workforce. A voluntary retirement plan was put to the trade union organization, which, in turn, rejected the proposal and the enterprise consequently requested permission to proceed with a mass dismissal as provided for by law. The Committee notes that the study of the request took two years, at the end of which time partial authorization was given for the dismissal of 16 workers. The Committee observes however that the Government failed to respond to the allegations that the dismissals involved only unionized workers. In this regard, recalling that the application of staff reduction programmes must not be used to carry out acts of anti-union discrimination [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 796], the Committee requests the Government to take the necessary measures so that an inquiry is carried out to determine whether the collective dismissal within Termotasajero SA involved only unionized workers and to keep it informed in this regard.
6. 468. As to the allegations presented by the WFTU relating to the refusal by the enterprises EPSA and the CETSA to bargain collectively with SINTRAELECOL Cauca branch, the Committee notes that, according to the complainant organization, the enterprises have adopted a policy of progressive elimination of the benefits contained in the collective labour agreements, as well as eliminating open-term contracts and cutting back on trade union leave and supplementary benefits for the functioning of the trade union organization. In this regard the Committee notes that, according to the Government, within the enterprise EPSA the negotiations/direct settlement (arreglo directo) phase was undertaken, in accordance with the list of demands presented by the trade union organization and, once this phase was exhausted, the trade union organization decided to request that an arbitration tribunal be convened: in the meantime, the existing collective agreement continues to be applied. As to the enterprise CETSA, the Committee notes that the Government states that the direct settlement phase was also initiated in this case: in the meantime, the existing collective agreement continues to be applied. The Committee notes that, according to the Government, the enterprises CETSA and SINTRAELECOL previously signed two collective labour agreements, maintaining under the second agreement all those extra-legal benefits granted under the first agreement; the enterprise has 81 employees on open-term contracts and, in 2007, one new worker was employed on the same contractual basis; in 2006 procedures within the enterprise were changed and adapted, with the participation of the trade union organization. The Committee notes that, in the light of a complaint made by the trade union organization, the Ministry of Social Protection opened an inquiry which concluded that the enterprise CETSA had not breached the legislation. The Committee also notes that, according to the Government, the enterprise granted trade union leave on seven occasions with travel expenses.
7. 469. As to the allegations relating to the enterprise EPSA, the Committee notes that the Government reports that the enterprise has signed seven collective agreements with SINTRAELECOL, and that during all the bargaining processes the previously existing financial benefits have been maintained in the new agreements; that the enterprise has 698 workers on open-term contracts and that in 2007 a further 32 workers were contracted on the same terms. The Committee also notes that operational adjustments were made within this enterprise, that the Ministry of Labour opened an inquiry in this regard which determined that the enterprise had not breached legislation and that in 2007 the enterprise granted 51 periods of trade union leave and that at present it supports the trade union organization with a sum equivalent to seven minimum wages. Under these circumstances, the Committee will not pursue the examination of these allegations relating to the enterprises EPSA and the CETSA.
8. 470. As to the allegations relating to the refusal by the enterprise OMC to bargain regarding the list of demands presented by the SINTRAMIENERGETICA, the Committee notes that the Government states that the abovementioned enterprise was an independent contractor of the enterprise CMU at the Yerbabuena mine and that the trade union organization presented a list of demands in March 2006; as the parties failed to reach an agreement, the trade union organization presented an administrative demand against the enterprise. However, the administrative authority, finding that this was a legal dispute, abstained from issuing a ruling, leaving open the possibility of recourse to the judicial body. The Committee further notes that the enterprise OMC and the enterprise CMU dissolved their commercial relationship, in the light of which the employment contracts of 104 workers of the enterprise OMC were also terminated, with 31 of the workers involved deciding to occupy the enterprise while the remaining workers blocked the access routes to the la Jagua de Ibirico mining complex, affecting not only the enterprise CMU, but also other enterprises in the area. Workers from the enterprise Carbones de la Jagua SA joined in the blockade. The Committee notes that, in the meantime, the enterprise put forward numerous proposals for the resolution of the dispute, a process in which the Ministry of Social Protection played an active role and that finally, on 3 September 2007, an agreement was reached under which the enterprise Carbones de la Jagua SA would contract 20 workers whose contracts with the enterprise OMC had been terminated, with the enterprise OMC paying financial compensation equivalent to three months’ basic wages to 59 persons, the remaining workers being free to go before the courts.
9. 471. As to the allegations made by the WFTU relating to the enterprise Productos de Aluminios Munal SA and to threats against leaders of the USO, the Committee observes that the abovementioned allegations are being examined within the framework of Cases Nos 2600 and 1787, respectively.