Rapport définitif - Rapport No. 384, Mars 2018

1. 211. The complaint is contained in a communication dated 6 April 2015 presented by the National Confederation of Workers of Colombia (CNT) and the Trade Union Association of Professional Staff in Ecopetrol (ASPEC), and a further communication dated 9 October 2015 from ASPEC.
2. 212. The Government sent its observations in communications dated 7 March 2016 and February 2017.
3. 213. 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 complainants’ allegations

1. 214. In communications dated 6 April and 9 October 2015, the CNT and ASPEC allege, firstly, that Ecopetrol S.A. (hereinafter “the oil company”) refuses to bargain collectively with ASPEC. In this regard, the complainants state specifically that: (i) ASPEC was formed on 12 February 2014; (ii) in May and June 2014, the trade union organizations operating at branch level in the oil company (the Petroleum Industry Workers’ Trade Union (USO)), the Association of Managers, Technical Staff and Workers in Enterprises in the Colombian Petroleum Industry (ADECO) and the National Trade Union of Workers of Operating, Contracting and Subcontracting Companies Providing Services and Activities in Petroleum, Petrochemical and Similar Industries (SINDISPETROL) submitted their respective lists of claims to the company, with a view to adopting a new collective agreement for the period 2014‒18; (iii) ASPEC submitted its own list of claims on 29 May 2014; (iv) the direct negotiation phase (direct settlement) between the oil company and ASPEC took place from 14 July to 22 August 2014, without an agreement being reached; and (v) the next working day, ASPEC filed the final record of the negotiations with the Bogotá Regional Labour Directorate with the intention of applying to the Ministry of Labour for a compulsory arbitration tribunal to be appointed to settle the unresolved collective labour dispute.
2. 215. With regard to the process of collective bargaining mentioned above, the complainants state that negotiations with the four trade union organizations operating in the company took place at four separate bargaining tables, which infringes the principle of bargaining unity enshrined in Decree No. 089 of 2014. This regulation provides that, in situations involving multiple trade unions in a company and where the unions do not amalgamate their lists of claims, the different claims are negotiated under a single-table bargaining arrangement, which include a proportional number of representatives based on each organization’s representativeness. The complainants allege that this resulted in the substantive negotiations being the focus of discussion at the USO and ADECO bargaining tables, while the list of claims submitted by ASPEC did not lead to any real discussions, forcing the workers affiliated to ASPEC to accept what was negotiated by the largest union in the company, USO, which is nevertheless a minority organization. Thus, the legitimate and specific claims of the company’s technical and managerial staff and staff in positions of trust represented by ASPEC were overlooked. The complainants conclude that the refusal of the oil company to bargain with ASPEC is evident from the legal proceedings brought before the 34th district labour court of Bogotá, in which the company seeks the annulment of the trade union organization’s registration.
3. 216. The complainants add that: (i) in the absence of genuine negotiations, on 17 June 2014, ASPEC filed an administrative labour complaint concerning the refusal to enter into bargaining on its list of claims; (ii) once the direct settlement phase failed, ASPEC applied to the Ministry of Labour for an arbitration tribunal to be set up; (iii) in Decision No. 0963 of 17 March 2015, the Ministry of Labour unjustly rejected the application, without taking the salient facts into account; and (iv) similarly, the tutela action (judicial proceedings to enforce rights) filed by ASPEC against the ministerial decision was dismissed at first and second instance.
4. 217. The complainants allege, secondly, that the oil company denied ASPEC equal access to paid union leave, demonstrating preferential treatment towards the other trade union organizations operating in the company. They state that this discrimination first emerged when the lists of claims relating to the collective agreement of 2014‒18 were being negotiated and, subsequently, under the terms of that agreement, which provides agreed and protected trade union guarantees for USO, SINDISPETROL and ADECO, whereas ASPEC’s access to union leave depends on the discretion of the company. The complainants report that, on 25 June 2014, they filed a request for an inspection visit and a labour administration inquiry in this connection.
5. 218. The complainants further allege that Decision No. 01 of 1977, or the “statutes governing executives”, adopted by the board of directors of the oil company and which covers technical and managerial staff and staff in positions of trust, who are in the majority in the company, constitutes an instrument of anti-union discrimination, since it can only be applied to non unionized staff. They add that this statute establishes a number of non-statutory wage and employment benefits and allowances for non-unionized managerial workers that are different and superior to those agreed by the company through collective agreements. The complainants report that they filed a request for an inspection visit and a labour administration inquiry in this connection.

B. The Government’s reply

1. 219. In its communications of March 2016 and February 2017, the Government first refers to the oil company’s reply, which describes the collective bargaining process entered into in 2014 with ASPEC and the other trade union organizations operating in the company as follows: (i) on 29 May 2014, ASPEC submitted its list of claims, requesting that, in accordance with Decree No. 089 of 2014, it be negotiated in parallel with the lists of claims of the industrial unions USO, ADECO and SINDISPETROL, which also operate in the company; (ii) these three organizations submitted their own lists of claims between 25 and 27 June 2014; (iii) on 3 July 2014, all the coexisting trade unions made a joint decision that the direct settlement phase would begin on 14 July 2014; (iv) in exercising their trade union autonomy, the unions chose not to submit a single list; (v) in accordance with the above decree, it was expressly specified that the bargaining would be a unified and integrated process, although for logistical reasons four parallel sets of discussions were held; (vi) bargaining with the different trade union organizations was conducted under the same conditions; (vii) the collective dispute ended with the signing of the collective agreement 2014‒18 by the majority of unions represented, although with ASPEC deciding not to sign the agreement; and (viii) the collective agreement, having been signed by the majority of trade union organizations, is applicable to all workers in the organizations that simultaneously submitted their lists, meaning that it is also applicable to all workers affiliated to ASPEC. The company adds that ASPEC signed the agreement on 3 July 2014 initiating the direct settlement phase and that the trade union organization took no steps whatsoever to request, within the legally established limits and deadlines, an arbitration tribunal to be appointed.
2. 220. With regard to the granting of union leave and guarantees, the company refutes the complainant’s allegations, since: (i) even though these conditions are not stipulated in any agreement, the company grants 22 monthly paid periods of leave to members of ASPEC’s national executive board and branch executive boards; and (ii) the number of periods of leave granted is not identical for each union because it is proportional to the representativeness of each organization.
3. 221. Lastly, the company states in its reply that Decision No. 01 of 1977 does not disregard the trade union organization right recognized in the Colombian Constitution, and that it is in line with the principle of freedom to join or not join a trade union organization. Specifically, the company states that: (i) workers holding managerial and technical posts and positions of trust are completely free to join or not join one of the coexisting trade union organizations operating within the oil company or to avail themselves of the wage and benefits system contained in the collective agreement or in Decision No. 01; (ii) given that there are two wage and benefit systems that are completely independent and incompatible with one another, and that, under the principle of the inseparability of regulations enshrined in the Labour Code, a worker cannot simultaneously enjoy the benefits contained in the collective agreement and those provided in Decision No. 01; (iii) at the time, both the Council of State and the Constitutional Court had an opportunity to confirm the legality and constitutionality of Decision No. 01; and (iv) the collective agreement concluded with the oil company refers to Decision No. 01, which shows there was an understanding between the company and its unions with respect to the decision.
4. 222. After informing the Committee of the oil company’s position on the complaint, the Government provides its own observations on the matter. With regard to the company’s alleged refusal to bargain with ASPEC, the Government considers that negotiations did take place and states in this regard that: (i) according to the provisions of Decree No. 089 of 2014, joint negotiations were held with all the trade union organizations operating in the company, which culminated in all of them, including ASPEC, signing a letter of agreement on collective bargaining on 3 July 2014; (ii) on 14 July 2014, although on that date ASPEC did not sign the agreement initiating the direct settlement phase, the oil company’s negotiating committees and ASPEC met, thus entering into the bargaining process with the trade union organization in question, a phase that lasted until 22 August 2014; and (iii) following the administrative labour complaint filed by ASPEC, the Bogotá district directorate of the Ministry of Labour conducted an investigation that concluded, in a decision dated 12 March 2015, that the company had not refused to bargain collectively with the trade union organization.
5. 223. Concerning the refusal of the Ministry of Labour to appoint an arbitration tribunal to resolve the collective dispute between ASPEC and the oil company, the Government states that: (i) ASPEC’s application is not admissible because the bargaining process between this organization and the company was conducted jointly with the other trade union organizations operating in the company, in accordance with Decree No. 089 of 2014, and that the bargaining process culminated in the majority of the trade union organizations signing a collective agreement; (ii) both the Cundinamarca Administrative Court, in a ruling on 7 April 2015, and the State Council, in a ruling on 9 June 2015, declared inadmissible the tutela action filed by ASPEC against Decision No. 0963, stating that the appropriate way to appeal against this decision was not to file a tutela action but to lodge an administrative appeal; and (iii) to date ASPEC has not challenged, in the administrative courts, Ministry of Labour Decision No. 0963, which rejects the request for an arbitration tribunal to be set up.
6. 224. With regard to the alleged refusal to grant union leave to ASPEC, the Government notes that the company provides information showing that 22 monthly paid periods of union leave are granted to the trade union organization, and that the latter has failed to provide any evidence that it reported the company’s alleged refusal to grant the aforementioned union leave to the relevant authorities.

C. The Committee’s conclusions

1. 225. The Committee observes that the present case refers to the alleged refusal of an oil company to bargain collectively with the trade union organization in the company ASPEC, and to the alleged failure to recognize the union’s right to equal access to paid union leave. The Committee observes that, in its allegations, the complainants also make brief reference to the alleged anti-union nature of Decision No. 01 of 1977 adopted by the oil company’s board of directors. The Committee notes that this issue will be examined under Case No. 3149, which contains allegations directly related to Decision No. 01 as well as the Government’s and company’s replies in this regard.
2. 226. With regard to the alleged violation of ASPEC’s right to bargain collectively, the Committee notes, firstly, that the complainants state that: (i) ASPEC, the recently formed trade union organization, submitted its list of claims to the oil company on 29 May 2014; (ii) on 3 July 2014, in accordance with Decree No. 089 of 2014, ASPEC agreed to negotiate as a group with the other three trade union organizations operating in the oil company, each having submitted its own list of claims; (iii) however, negotiations on the four lists of claims took place at separate bargaining tables; (iv) while the oil company held substantive discussions with the union with the most members (although still a minority organization), the former did not engage in any real negotiations with ASPEC; (v) as a result of the above, on 24 August 2014, the company signed a collective agreement with the other trade union organizations, whereas no agreement was reached with ASPEC; and (vi) the action brought before the Ministry of Labour and the courts against the oil company’s refusal to bargain with ASPEC and to request an arbitration tribunal to be set up were unsuccessful, due to the lack of objectivity on the part of the public authorities.
3. 227. Furthermore, the Committee notes that both the oil company and the Government take the same position, namely that: (i) in the negotiations on the collective agreement 2014‒18, the four trade union organizations operating in the company decided, in keeping with their trade union autonomy, to each maintain their own list of claims; (ii) in accordance with the bargaining agreement signed on 3 July 2014, the four lists of claims were negotiated in a coordinated manner, albeit at separate bargaining tables, which is not contrary to Decree No. 089 of 2014 regulating collective bargaining processes in situations involving multiple trade unions; (iii) the ASPEC bargaining table met between 14 July and 22 August 2014; (iv) while an agreement was reached with the other trade union organizations, ASPEC decided not to sign the company’s collective agreement 2014‒18, which nevertheless applies to all unionized workers in the company; and (v) following the administrative labour complaint filed by ASPEC, an investigation was conducted by the labour inspectorate, which found no evidence of the oil company refusing to bargain with the trade union organization.
4. 228. The Committee observes that this first allegation refers, in a context of multiple trade unions, to the alleged preference shown by the oil company for negotiating the collective agreement with the most representative trade unions, to the detriment of ASPEC, a recently formed trade union organization with which the company allegedly did not engage in any genuine negotiations. In this respect, the Committee recalls in general that the recognition by an employer of the main unions represented in the undertaking, or the most representative of these unions, is the very basis for any procedure for collective bargaining on conditions of employment in the undertaking [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 953]. In the present case, based on the information made available by the complainants, the company and the Government, the Committee notes that: (i) the oil company has entered into negotiations with all the trade union organizations operating in the company, including with ASPEC, irrespective of the degree of representativeness of each union; (ii) the company signed a collective agreement with the most representative organizations, which was not signed by ASPEC; (iii) the collective agreement applies to all unionized workers in the company, including ASPEC members; and (iv) following investigations conducted by the labour inspectorate, the Ministry of Labour rejected the complaint filed by ASPEC on the violation of the right to bargain collectively. Under the circumstances, the Committee will not pursue the examination of this allegation.
5. 229. Regarding the refusal of the Ministry of Labour to set up an arbitration tribunal to resolve the dispute following the absence of any agreement between ASPEC and the company, the Committee notes that the Government states that ASPEC’s application was not admissible because the bargaining process between the organization in question and the company was conducted jointly with the other trade union organizations operating in the company, and that the bargaining process culminated in the majority of the trade union organizations signing a collective agreement. Under the circumstances, the Committee will not pursue the examination of this allegation.
6. 230. Concerning the alleged refusal to allow ASPEC union leave, the Committee notes, firstly, that the complainants state that: (i) ASPEC was not granted the same number of periods of union leave as the other three trade union organizations operating in the oil company during the collective agreement bargaining period; (ii) through the collective agreement 2014‒18 signed on 22 August 2014, the other three trade union organizations were able to agree on and guarantee the number of periods of paid leave due to them, whereas the union leave available to ASPEC depends solely on the goodwill of the company; and (iii) in June 2014, ASPEC requested an investigation by the Ministry of Labour in this connection. The Committee notes, secondly, that the oil company in turn states that: (i) the four trade union organizations were on an equal footing when it came to negotiations on the collective agreement; (ii) ASPEC receives 22 monthly paid periods of union leave from the company; and (iii) ASPEC does not have the same number of periods of union leave as the other trade union organizations because they are calculated based on the representativeness of each organization. The Committee notes, thirdly, the Government’s indication that the company provides information, on the basis of which paid leave is granted to the trade union organization, whereas the latter has failed to provide any evidence that it reported the company’s alleged refusal to grant the aforementioned union leave to the relevant authorities.
7. 231. With regard to the fact that ASPEC receives fewer periods of paid union leave than the other unions operating in the company, the Committee notes that the organization does not deny that it also has fewer members than the other unions. In these circumstances, the Committee observes that it is fully justified for the union leave granted to be proportional to the representativeness of each trade union organization. With respect to the fact that, unlike the other trade union organizations operating in the company, ASPEC does not have an agreed number of periods of union leave due to it, the Committee observes that this situation is the result of the failure to reach an agreement between the company and ASPEC in the negotiations on the company’s collective agreement 2014‒18 and of the trade union organization’s decision not to sign the agreement signed by the other unions operating in the company.