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

1. 504. The Single Confederation of Workers (CUT) submitted its complaint in a communication of 3 September 2007.
2. 505. The Government sent its observations in a communication of 29 May 2008.
3. 506. Columbia 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 complainant’s allegations

1. 507. In its communication of 3 September 2007, the CUT alleges anti-union acts against the National Union of Civil Aviation Workers (SINTRAERONAUTICO). Specifically, it refers to the transfer of several members of SINTRAERONAUTICO in the Simón Bolívar Airport of Santa Marta by unsubstantiated administrative decisions issued by the Director of Human Resources and upheld by the Director-General upon review, causing them financial loss, a decline in working conditions and break-up of the family unit.
2. 508. According to the complainant, in response to the trade union’s action to fight corruption, the management of Aeronáutica Civil (AEROCIVIL), through its internal disciplinary control group, has taken disciplinary action and applied sanctions against union members.
3. 509. The complainant adds that AEROCIVIL has failed to comply with resolution No. 01139 of 10 March 2005 regulating the trade union guarantees applying to SINTRAERONAUTICO. That resolution was issued pursuant to article 39 of the Political Constitution of Colombia, ILO Convention No. 151, Act No. 27 of 1976, Act No. 411 of 1997, section 13 of Act No. 584 of 2000 and Decree No. 2813 of 2000, which are the legal provisions that apply specifically to the right of association and trade union guarantees of organizations of public servants. One of the reasons for issuing resolution No. 01139 of 10 March 2005 was to establish a system of trade union guarantees to be applied to the members of SINTRAERONAUTICO that accommodates all the abovementioned provisions.
4. 510. The non-compliance mainly concerns the following articles:
5. – Article 3.?Refusal to carry out performance appraisals, in accordance with the established procedure, for members of the National Executive Board on union leave.
6. – Article 4.?Refusal to issue the air tickets and travel allowances established therein.
7. – Article 6.?Refusal to issue the air tickets established therein.
8. 511. The failure to conduct performance appraisals concerns the period from 1 February to 31 July 2006, in which the management simply omitted to appraise the performance of the trade union officials.
9. 512. The complainant states that the workers of AEROCIVIL receive a quarterly productivity bonus on the strength of their performance appraisals. By refusing to conduct appraisals for the trade union officials, the management has denied them the productivity bonus due to them – for two-quarters in some cases and three in others – since September 2006. When asked for information on the matter, the company replied that the bonus would be paid “as soon as its lawfulness is ascertained …”. The upshot was that criminal complaints were filed against AEROCIVIL’s management.
10. 513. As to the breach of Articles 3 and 4, the complainant asserts that the failure to issue air tickets had made it impossible to assist union members in difficult situations such as the unjustified and unfair transfer of SINTRAERONAUTICO members at Santa Marta airport and the confusion caused by the franchising of San Andrés and Providencia airports, and is preventing the contact with members in other airports that enabled the National Executive Board to train both unionized and non-unionized staff and keep them informed.
11. 514. The complainant adds that on 8 February 2007, the company management sent the National Executive Board of SINTRAERONAUTICO a legal opinion concluding that resolution No. 01139 of 10 March 2005 on trade union guarantees is unlawful in its entirety and proposing that it be revoked and a new resolution issued; the latter, according to the complainant, abolishes trade union guarantees.
12. 515. On 13 February 2007, SINTRAERONAUTICO filed an application for protection against AEROCIVIL for violation of trade union guarantees, and on 16 February applied to the Office of the Public Prosecutor for an investigation of AEROCIVIL’s general management and to the Office of the President of the Republic for a right of petition.
13. 516. On 20 February 2007 the company and the trade union held a meeting in order to seek agreement on the matter of trade union guarantees on the basis of a draft resolution which had been issued. They failed to reach an agreement but arranged a meeting for 23 February. However, on 21 February, resolution No. 00387 of 1 February 2007 regulating trade union guarantees in the Special Administrative Unit of Aeronáutica Civil, was published in an AEROCIVIL email. The resolution abolishes all the trade union guarantees that have existed in AEROCIVIL for many years.
14. 517. The complainant points out that although the resolution is dated 1 February, it was published on 21 February, and that between those dates the trade union and the company management held several meetings and leave was granted to members under resolution No. 01139 of 2005 although it had already been revoked by the new resolution. Furthermore, no account was taken of the many petitions from senators and trade union and political representatives asking that resolution No. 01139 be maintained or that agreement be sought with the complainant organization.
15. 518. According to the complainant organization, pursuant to the new resolution, disciplinary proceedings were opened against the treasurer of SINTRAERONAUTICO on grounds of absence without leave. Furthermore, after resolution No. 00387 of 1 February 2007 was published, union officials who had obtained leave for the entire working period allowable under resolution No. 01139 of 10 March 2007, came up against numerous problems. In addition, telephone access has been suspended and payment of the productivity bonus is still being withheld despite legal opinions from AEROCIVIL’s legal adviser finding in favour of the union on each of these matters.
16. 519. To date, none of the legal actions brought by SINTRAERONAUTICO, namely the right of petition sought from the Office of the President of the Republic, the action brought before the Ministry of Social Protection and the complaint filed to the Office of the President of the Republic, has succeeded.
17. 520. The complainant states that the Ministry of Social Protection convened a conciliation hearing for 6 August 2007, at which the trade union was represented but AEROCIVIL was not.
18. B. The Government’s reply
19. 521. In its communication of 29 May 2008, regarding the allegation that disciplinary action was brought against a number of trade union officials, the Government states that these proceedings involved no specific cases; however, AEROCIVIL denies any breach of due process and emphasizes that in all the actions it has brought, whether administrative or disciplinary, it has always observed labour and trade union rights and guarantees and respected the principle of good faith, the presumption of innocence, due process, and the right of defence and rebuttal.
20. 522. As to the allegation that union members in the Santa Marta Simón Bolívar Airport were transferred for no reason whatsoever, thus sustaining financial loss, a decline in working conditions and break-up of the family unit, the Government states that, according to AEROCIVIL, such transfers are frequent because it has a company-wide payroll, which allows the movement of staff, union members and non-members alike, in order to provide better service. AEROCIVIL points out that the transfer of Santa Marta Airport staff involved no trade union officers.
21. 523. AEROCIVIL in fact wanted to relocate 23 employees in various bases throughout the country, but only two were actually transferred: Wilfredo Oliveros Mendoza y Gilberto Avila Pi?a, only one of whom belonged to a trade union, but he did not have trade union immunity.
22. 524. In the information it provided, AEROCIVIL states that the transfers caused no injury whatsoever to the employees concerned and that their rights were respected. Besides, at Santa Marta Airport, there were more incoming than outgoing staff, and service was not affected.
23. 525. As to the alleged disregard and violation of the working conditions set forth in resolution No. 01139 of 10 March 2005, and the denial of trade union leave and air tickets for union officials’ travel, after examining the allegations in the light of AEROCIVIL’s reply, the Government takes the view that in accordance with the Political Constitution and the applicable legislation, representatives of trade union organizations do enjoy the immunity and other guarantees they need to carry out their duties. Indeed, by Decree No. 2813 of 2000, the Government regulated the grant of the paid union leave that trade union representatives of public servants need in order to perform their duties. Thus, the content of resolution No. 01139 of 2005 was not in line with the legislation since, as AEROCIVIL observed, the prerogatives it grants were an obstacle to the proper running of the unit and amounted to unequal treatment vis-à-vis the other trade unions in AEROCIVIL, which had no such prerogatives. The Director of AEROCIVIL accordingly deemed it appropriate to align trade union guarantees such as trade union leave, the pay system, travel costs and performance appraisal with the legislation in force by issuing resolution No. 00387 of 1 February 2007, which expressly repealed resolution No. 01139 of 2005.
24. 526. The Government points out that the Director of AEROCIVIL acted consistently with the provisions of Convention No. 151 in bringing the trade union guarantees into line with those set forth in the legislation and the Political Constitution. In referring to facilities to be afforded to public employees’ organizations to enable them to carry out their functions promptly and efficiently, Convention No. 151 makes two points: (a) the granting of such facilities shall not impair the efficient operation of the administration or service concerned, and (b) the facilities must be appropriate to national conditions.
25. 527. The Government refers to the Constitutional Court’s considerations in decision C-201 of March 2002:
26. …
27. and in decision C-377 of 1998, on reviewing the constitutionality of “Convention No. 151 on protection of the right to organize and procedures for determining terms and conditions of employment in the public administration” and of Act No. 411 of 1997 approving the said instrument, the Court found the differentiation between official workers and public employees for the purposes of exercising the right to collective bargaining to be in keeping with the Constitution, pointing out that the former enjoy this right fully whereas for the latter, there are restrictions, since although they have the right to seek and reach agreement in the event of a dispute, the authorities’ power to set terms and conditions of employment unilaterally may on no account be affected. The Court stated in this connection:
28. … unlike in the case of official workers, who have an unqualified right to bargain collectively, the search for agreed and negotiated solutions cannot affect the power that the Constitution confers on the authorities to set terms and conditions of employment unilaterally. This means that to establish mechanisms enabling public employees or their representatives to take part in the determination of their terms and conditions of employment is lawful, provided it is understood that the final decision rests with the authorities indicated in the Constitution, namely Congress and the President at national level, and the assemblies, councils, governors and mayors in the various territorial divisions, which act autonomously for this purpose. In line with this restriction, it is also lawful to develop bodies in which to seek a negotiated and agreed solution in the event of a dispute between public employees and the authorities.
29. The foregoing on no account implies that the Court should qualify the scope of Articles 7 and 8 of the Convention under review in respect of public employees, since these provisions allow the specificities of national circumstances to be taken into account. Thus, Article 7 does not lay down an unqualified right to collective bargaining for all public servants, but establishes that States shall take “measures appropriate to national conditions” to encourage negotiation between the public authorities and organizations of public servants, which is consistent with the Court’s findings. (Emphasis added.)
30. 528. According to the Government, AEROCIVIL took the decision to repeal resolution No. 01139 of 2005, not with the intent of harming the trade union, but in order to apply the legislation in such a way that the facilities granted to the officials of the trade union are proper from the standpoint not only of the legislation but also of Convention No. 151, as will be appreciated.
31. 529. As to the allegations concerning the lack of performance appraisals, air tickets and travel allowances, the Government states that the rules are clear, and that there can be no performance appraisal in the absence of service in respect of fixed trade union leave, nor can tickets and allowances paid out of public funds be issued for activities outside the scope of the public service (Act No. 909 of 2004, Legislative Decree No. 790 of 2005 and the General Budget Act). Without performance there can be no appraisal and hence no benefits deriving from appraisal such as the productivity bonus. In any event, to date AEROCIVIL owes the trade officials nothing by way of productivity bonuses.
32. 530. The Government points out that the criminal proceedings against the company management were discontinued by the Prosecutor. The action for constitutional protection brought by SINTRAERONAUTICO against the Director of AEROCIVIL for violation of trade union guarantees was unsuccessful. The complaint lodged by the trade union with the Office of the Public Prosecutor against the Director of AEROCIVIL for violation of trade union guarantees was shelved and the application for rights of petition made to the Office of the President of the Republic were forwarded to the Ministry of Social Protection and duly answered.
33. 531. With regard to the air tickets for the chairperson, the Government points out that the public administration is governed by strict budgetary rules and that public employees may act only as the Constitution and the law, in the broad sense, allow. Employees in a public enterprise are responsible for the budget and public spending, so any budgetary expenditure unrelated to the enterprise may incur disciplinary or criminal action.
34. 532. As to the meeting between SINTRAERONAUTICO and the company, the Government states that it was convened in order to enlarge on the explanations given by the company’s legal adviser regarding the repeal of resolution No. 01139 of 2005.
35. 533. The Government adds that, according to the information supplied by AEROCIVIL, resolution No. 00387 amending resolution No. 01139 of 2005 on no account disregards trade union rights but merely brings the provisions into line with the legislation and the text of Convention No. 151. It also points out that resolution No. 00387 was published on 21 February 2007.
36. 534. As to the leave granted by the company management, AEROCIVIL explains that this was not based on any resolution, and that the disciplinary proceedings brought against the treasurer of SINTRAERONAUTICO were unrelated to the matter of trade union leave. The Government stresses that disciplinary control is exercised autonomously and affords all the safeguards of due process established in the Constitution and the law.
37. 535. In response to the allegation that the new provisions on consultation, negotiation and democratic resolve are unlawful, AEROCIVIL disagrees, deeming them to be consistent with the law and international agreements, and the rights of the workers.
38. 536. Lastly, the Government states that the Territorial Directorate of Cundinamarca initiated an administrative labour investigation against AEROCIVIL for disregarding the trade union guarantees set forth in resolution No. 01139 and that in the course of it, a number of conciliatory hearings were to be held. Observations will be sent as soon as a reply has been obtained regarding the latest developments.

C. The Committee’s conclusions

1. 537. The Committee observes that in this case the Single Confederation of Workers, representing the National Union of Civil Aviation Workers, alleges that several members of the trade union were transferred for no reason and that disciplinary proceedings were initiated against members; that there was breach of resolution No. 01139 of 2005 regulating trade union guarantees, and that this resolution was repealed by resolution No. 00387 of 1 February 2007, which meant that numerous benefits enjoyed by the trade union organization were abolished.
   • Transfer of trade unionists
2. 538. As regards the transfer of several members of the trade union at Santa Marta Airport, the Committee notes that according to the complainant, the transfer, which was carried out by Aeronáutica Civil (AEROCIVIL) caused those concerned financial loss, a decline in working conditions and break-up of the family unit. It further notes the complainant’s allegation that in the course of the trade union’s action to fight corruption, disciplinary proceedings have been initiated against some of its members.
3. 539. The Committee notes that in connection with the transfers, the Government states that according to information supplied by AEROCIVIL, there are frequent transfers of staff in order to meet the needs of the service, that the transfers at Santa Marta Airport did not involve trade union officials, and that only two workers were actually transferred, only one of whom was a member of SINTRAERONAUTICO. With regard to the disciplinary proceedings, the Committee notes that, according to the Government, the allegations do not refer to specific disciplinary hearings and that AEROCIVIL stresses that it has always guaranteed due process and the procedural safeguards it affords. In these circumstances, the Committee will not proceed with the examination of the allegations unless the complainant organizations give the names of any trade unionists affected by disciplinary proceedings and details of the anti-union nature of such proceedings.
   • Repeal of the AEROCIVIL resolution on
   • trade union facilities
4. 540. With regard to the alleged breach of resolution No. 01139 of 2005 laying down trade union guarantees (union leave and the grant of free air tickets for trade union officials, etc.), and its subsequent repeal by resolution No. 00387 of 1 February 2007, the Committee notes that according to the complainant, resolution No. 01139 established trade union guarantees to apply to SINTRAERONAUTICO, but that AEROCIVIL disregarded the rights established in Articles 3, 4 and 6 that pertain to appraisal of performance for members of the Executive Board who are on fixed union leave, and the grant of air tickets for trade union officials to enable them to perform their duties in the country’s various airports. The Committee notes that, according to the complainant, the failure to fulfil the obligation to appraise the performance of trade union officials means that the productivity bonus, which is awarded on the basis of such appraisal, has not been paid since September 2006 to officials on fixed trade union leave. The Committee notes that SINTRAERONAUTICO filed a criminal complaint against the company for non-payment. With regard to the failure to provide air tickets, the Committee notes that according to the complainant, this has prevented SINTRAERONAUTICO from meeting the needs of its members in the country’s various airports.
5. 541. The Committee further notes the complainant’s reference to the repeal of resolution No. 01139 and the issuing of resolution No. 00387 of 1 February 2007 abolishing the trade union guarantees, and to the application for protection under the Constitution, the application to the Office of the Public Prosecutor for an investigation and the application to the Office of the President of the Republic for a right of petition, brought by the complainant organization in this connection. It notes that the complainant refers in particular to the delay in publishing the new resolution, and to the various meetings between AEROCIVIL and SINTRAERONAUTICO that were held between the issuing and the publication of that resolution at which the consistency of resolution No. 01139 with the law was discussed but no mention whatever made of the new resolution, which had already been issued. According to the complainant, the resolution took into account neither the outcome of those meetings nor the various requests submitted by other trade unions, members of parliament and political representatives that agreement be sought. The Committee likewise notes that disciplinary proceedings were brought against some trade union officials in connection with the use of trade union leave and that the Ministry of Social Protection convened a conciliation hearing for 6 August 2007, which AEROCIVIL did not attend.
6. 542. The Committee notes that the Government, for its part, states that Decree No. 2813 of 2000 regulated the grant of paid union leave to union representatives of public servants and that resolution No. 01139 of 2005 was inconsistent with the law because, according to AEROCIVIL, it granted prerogatives that made it difficult to run the institution properly and benefited only SINTRAERONAUTICO, thus causing an imbalance vis-à-vis the other trade unions in AEROCIVIL. With regard to performance appraisal, the Committee notes that, according to the Government, where no duties have been performed (in this case because the officials were on fixed trade union leave), there can be no appraisal and hence none of the benefits deriving from appraisal. The Committee notes with interest the Government’s indication that, nevertheless, AEROCIVIL did, on its legal adviser’s recommendation, pay the officials on fixed union leave the amount corresponding to the productivity bonus. The Committee notes that the criminal proceedings, the application for constitutional protection and the complaint lodged by the trade union against AEROCIVIL with the Office of the Public Prosecutor were unsuccessful.
7. 543. The Committee notes the Government’s indication that resolution No. 00387 of 2007 amending resolution No. 01139 of 2005 merely brings its provisions into line with Convention No. 151. In this respect, the Committee recalls that according to article 19, paragraph 8 of the ILO Constitution, in no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation.
8. 544. With regard to the denial of air tickets, the Committee notes the Government’s statement that the law does not allow a public institution’s funds to be used for purposes unrelated to the institution, that the meeting between AEROCIVIL and SINTRAERONAUTICO before the new resolution was published was convened merely to explain to the trade union the legal adviser’s views on the repeal of resolution No. 01139 of 2005, and that the leave the management of AEROCIVIL granted after the new resolution was issued had no basis in law. As to the disciplinary action which, according to the trade union, AEROCIVIL brought against members of SINTRAERONAUTICO in connection with their use of trade union leave, the Government asserts that the grounds for these proceedings were unrelated to such leave.
9. 545. Lastly, the Committee notes that on the matters referred to in the previous paragraph, the Government states that the Territorial Directorate of Cundinamarca initiated an administrative labour investigation against AEROCIVIL for disregard of the trade union guarantees established in resolution No. 01139 and that several conciliation hearings have been fixed. The Committee request the Government to keep it informed on this matter so that it can examine the allegations in full knowledge of the facts.
10. 546. Noting from the Government’s observations that there were no prior consultations with the complainant organization about resolution No. 00387 of 1 February 2007, the Committee is bound to express regret, particularly as the latter resolution amended an earlier one, No. 01139 of 2005, granting the complainant organization a number of benefits which would cease to apply once the new resolution took effect. The Committee has emphasized the importance that should be attached to full and frank consultation on any questions or proposed legislation affecting trade union rights [see Digest of decisions of the Committee on Freedom of Association, fifth edition, 2006, para 1074]. Bearing in mind that the change in the regulation of trade union facilities appears to have affected the complainant organization adversely, the Committee requests the Government to continue to promote conciliation between the parties on this matter and hopes that AEROCIVIL and the trade union will find a solution to the issue.