Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 355, Novembre 2009

1. 506. This complaint is contained in a communication dated 7 September 2007 (received by the Office on 6 May 2008) from the National Union of Bank Employees (UNEB).
2. 507. The Government sent its observations in a communication dated 4 December 2008.
3. 508. 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 complainant’s allegations

1. 509. In its communication of 7 September 2007 (received by the Office on 6 May 2008), the UNEB indicates that, in 2000, workers of the Seguros Cóndor SA and Seguros Aurora SA insurance companies established the Union of Workers of Seguros Aurora Cóndor (SINTRAUROCONDOR). The union presented lists of demands to the enterprise Seguros Cóndor SA, which persistently evaded its legal obligations, so that a compulsory arbitration tribunal had to be set up. The collective labour disputes ended with the issuance of arbitration awards. The complainant organization encloses a copy of the decision handed down on 3 February 2005 by the Supreme Court of Justice rejecting Appeal No. 25584 asking for an annulment of the award (Decision No. 12).
2. 510. The complainant organization adds that Seguros Cóndor SA has always pursued a policy of repression against union members, even when lists of demands were being negotiated. The complainant organization indicates that the labour court ordered the reinstatement of the workers María Doralice Sánchez, Nilsa Marlene Neira González, Blanca Isabel Pineda, Andrea Martínez Zárate and others on grounds of wrongful dismissal during the bargaining process.
3. 511. In addition, Seguros Cóndor SA implemented “voluntary” retirement plans for union members, using pressure and other measures to eliminate union members. For example, after leaving the union, several former union members, who in June 2005 had been earning a wage of 385,166 pesos, had their wages increased to 600,000 pesos in August that year; another member, who in June 2005 had been earning 1,810,204 pesos, had her wages increased to 3,500,000 pesos that August, after leaving the union in June 2005. Union official Andrea Martínez Zárate did not accept the offer to leave the union and, despite being covered by trade union immunity as a member of the works council, was dismissed by the enterprise on 27 February 2006, along with Matilde Garzón Rincón, María Emilce López Supelano, Diego Fernando Orozco Ramos and María Judith Reina, who were dismissed for joining the union on 24 February 2006. Subsequently, following an appeal in the second instance for the protection of constitutional rights (tutela) (No. 2006-0210), they were all reinstated in the company. The complainant organization encloses a copy of the ruling, which prohibits the enterprise from using such illegal coercive measures. Nevertheless, the employer continues to use them. The complainant organization gives examples of cases of wage discrimination against unionized workers and other acts of anti-union discrimination and workplace harassment, exclusion from training programmes and intimidation of new members.
4. B. The Government’s reply
5. 512. In its communication of 4 December 2008, the Government states, with regard to the establishment of arbitration tribunals, that they are legal bodies provided for under domestic labour legislation with the main objective of settling labour disputes on legal or economic issues. Arbitration is a mechanism for dispensing justice, through which the State exercises its public function, and it is clearly enshrined in law.
6. 513. Regarding the allegations concerning the dismissal and anti-union harassment of Andrea Martínez Zárate, the Government states that the enterprise Seguros Generales Cóndor SA provided the following information:
7. The fourth point is incorrect, as there was neither any repression against the staff nor any manifestation of bias. It is worth mentioning that Seguros Aurora Generales SA was undergoing administrative restructuring at the time, as the enterprise was facing dissolution and bankruptcy, which led to restructuring not only with regard to staff but also with regard to other areas and sections of the company.
8. Accordingly, in order to ensure the survival of the abovementioned companies, there was no alternative but to merge with the general insurance company Cóndor SA, under Decision No. 050 of 1999.
9. As it stands, the point made is incorrect, and as proof of this we are enclosing a copy of the final decisions and conciliation agreements reached in the 16th Labour Court of the Bogotá Circuit in the case of Andrea Martínez Zárate; we would like to point out that, of those mentioned, Andrea Martínez Zárate and Blanca Isabel Penada are currently members of the UNEB, while the others continue to work without having decided to join any union. It is clear that all the issues discussed in this regard have been settled in one way or another, either by agreement between the parties involved (conciliation) or by a court decision to settle the respective disputes. All the workers mentioned are currently working for the general insurance company Cóndor SA.
10. 514. The Government adds that, notwithstanding the above, the Territorial Directorate of Cundinamarca initiated an administrative labour investigation against the enterprise Seguros Cóndor SA, in accordance with the complaint filed by the UNEB for alleged violation of the right of association and that, as soon as it receives a reply with regard to the final outcome of this investigation, it will send its observations in this regard.
11. 515. Concerning the allegations relating to the voluntary retirement plan, the company’s legal representative denies the implementation of such a plan, as the staff members mentioned by the UNEB are currently employed by the company. As regards wages and different pay for unionized workers, the Government states that these facts are unrelated to the trade union and points out that no complaints or questions have been raised with regard to this matter.

C. The Committee’s conclusions

1. 516. The Committee notes that, in the present case, the allegations of the UNEB concern the refusal by the enterprise Seguros Cóndor SA to bargain collectively, as well as acts of anti-union discrimination and interference against unionized workers, with the aim of pressuring them to leave the trade union. The Committee notes that, with regard to the refusal to bargain collectively and the establishment of the compulsory arbitration tribunal, the Government indicates that such tribunals may be convened in accordance with the provisions of national legislation as a means of settling collective disputes. The Committee considers that the systematic refusal by one of the parties to negotiate in good faith can give rise to the parties submitting in practice to an arbitration procedure in a manner which does not promote collective bargaining. The Committee therefore requests the Government to take the necessary measures to ensure that the enterprise will bargain in good faith with the trade union in the future.
2. 517. With regard to the allegations concerning the use of pressure and incentives to get workers to leave the union, the Committee notes that, according to the complainant organization, such anti-union acts specifically include: (1) the dismissal of trade union officials following the presentation of a list of demands (subsequently reinstated by court order); (2) the implementation of voluntary retirement plans for unionized members using pressure and wage incentives to get them to leave the union (the complainant organization provides specific examples of substantial wage increases awarded to workers after they left the union); (3) the dismissal of a union official (Andrea Martínez Zárate) for refusing to leave the union and of other workers for joining the union (subsequently reinstated by court order, pursuant to a tutela ruling in which the court ordered the enterprise to refrain from violating freedom of association in the future); and (4) other allegations of workplace harassment and exclusion from training programmes.
3. 518. With regard to the allegations concerning the implementation of a voluntary retirement plan, the Committee notes that, according to the Government, the enterprise indicates that it had to undergo a restructuring process in 2000 as it was facing bankruptcy and dissolution, which led to its merger with the general insurance company Seguros Aurora SA. The Committee notes that the enterprise denies, however, the existence of a voluntary retirement plan, and adds that the workers mentioned by the complainant organization in its allegations are still working for the enterprise. Regarding the alleged differences in wage increases, the Committee notes that the Government indicates that these are unrelated to the union membership of the workers and points out that no complaint of any kind has been filed to date in this regard. With respect to the allegations concerning the dismissal of UNEB union official Ms Martínez Zárate and other workers, the Committee notes that the Government refers to the information provided by the enterprise, according to which the various disputes were settled by the judicial authority and that all the workers mentioned are currently working for the enterprise.
4. 519. The Committee notes that it appears from the allegations and from the Government’s reply that, in the case of the dismissals, the judicial authority ordered the reinstatement of the dismissed workers, a decision which ordered the enterprise to refrain from taking such measures in the future and was implemented by the enterprise. The Committee also notes that, according to the Government, the Territorial Directorate of Cundinamarca initiated an administrative labour investigation on the basis of a complaint presented by the UNEB, which is currently ongoing. As for the allegation that Ms Martínez Zárate was excluded from training programmes, the Committee notes that the documentation provided by the Government shows that the educational assistance she applied for was not ultimately granted because she did not meet the requirements set out in the collective agreement. Accordingly, the Committee considers that, in these particular circumstances, the measures taken to date show that the mechanisms to protect freedom of association appear to have worked at the national level. In these circumstances, bearing in mind that an investigation is being carried out by the Territorial Directorate of Cundinamarca into these matters, the Committee requests the Government to ensure that this investigation covers all the matters raised and to keep it informed of the outcome.