Rapport définitif - Rapport No. 400, Octobre 2022

1. 302. The complaint is contained in a communication from the National Trade Union Association of Workers in the Surveillance and Private Security and Similar Industry (ANASTRIVISEP) dated 29 August 2017.
2. 303. The Government sent its observations concerning the allegations in communications dated 28 September 2018 and 28 February 2019.
3. 304. 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) and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 305. In its communication dated 29 August 2017, the complainant alleges that on 3 March 2014, as a minority trade union organization and having fulfilled all legal and documentary requirements, it submitted a list of claims to the security department of the corporate group of the prepaid medical company Colsanitas (hereinafter “the corporate group”), an extensive list, from a standpoint of corporate organization, to various enterprises belonging to this group (Farmasanitas, EPS Sanitas, Servicios Industriales de Lavado, Clínica Colsanitas, Iberocaribe, Heymocol, Soluciones Logísticas Organización Sanitas Internacional, Clínica Campo Organización Sanitas Internacional, Libcom de Colombia, Óptica Colsanitas, Soprinsa, Club Deportivo OSI and Fundación Universitaria Sanitas). In view of the refusal to negotiate through the legal representative of the corporate group, on 17 March 2014 the complainant submitted a labour related administrative complaint to the Bogotá Territorial Directorate of the Ministry of Labour, emphasizing the existence of a security department and of a surveillance and private security skills development department in the aforementioned companies belonging to the corporate group. The complainant alleges in this respect that, in July 2014, the competent labour inspector conducted separate, individual interviews which confirmed that those interviewed were employed in the security department headed by the corporate group, that they were members of the complainant organization, that they received training from the skills development department of the corporate group as in any surveillance company, and that they acted on behalf of the corporate group. The complainant alleges that by Decision No. 001355 of 28 August 2014, the coordinating body of the Dispute Resolution and Conciliation Group in the Ministry of Labour (Bogotá Territorial Directorate) found in favour of the corporate group in violation of section 433 of the Substantive Labour Code and of Convention No. 154. Furthermore, the complainant organization indicates that it appealed against the decision but that the decision was upheld by the Bogotá Territorial Directorate by Decision No. 001715 of 20 October 2014, thereby depriving the guards of their right to bargain collectively. Lastly, the complainant indicates that the companies in the group which it approached separately on 13 October 2015 also refused to engage in the requested negotiations.

B. The Government’s reply

1. 306. In its communication of 28 September 2018, the Government states that the Bogotá Territorial Directorate, given the request of ANASTRIVISEP that the corporate group be penalized for refusing to negotiate its list of claims, carried out, through its labour inspectors, the relevant administrative investigations in accordance with the applicable rules. It specifies that labour inspectors are not empowered, under section 486(1) of the Substantive Labour Code, “to declare individual rights or to settle disputes, which shall be decided by judges”. It adds that in the event that the parties concerned are not in agreement with the decision, mechanisms are in place for ruling on the legality or illegality of administrative acts by public officials. The Government indicates in this regard that there is no evidence that the complainant trade union has exhausted domestic judicial mechanisms, namely by resorting to the administrative dispute court.
2. 307. In its communication of 28 February 2019, the Government sets out the reasons why the labour administration, on two occasions, dismissed the claims of the trade union organization. It states that the administrative decisions were due to the fact that the corporate group does not engage in surveillance and private security activities related, connected or complementary to the sector and was therefore not bound to negotiate the list of claims. In this respect, the Government provides Decision No. 001355 of 28 August 2014 issued by the coordinating body of the Dispute Resolution and Conciliation Group of the Bogotá Territorial Directorate, as well as Decision No. 001715 of 20 October 2014 issued by the Bogotá Territorial Directorate which settled the appeal.

C. The Committee’s conclusions

1. 308. The Committee observes that this case refers to the refusal, by a corporate group, to negotiate a list of claims with a trade union organization representing a branch of activity with a minority presence in the group and to the absence of penalties by the Ministry of Labour for this refusal due to the fact that the scope of activity of this organization does not correspond to the primary objective of the group, namely, the management and contracting of health services provision, whereas the complainant is an organization in the surveillance and private security industry.
2. 309. The Committee notes the complainant’s allegation in this respect that: (i) on 3 March 2014, it submitted a list of claims to the security department of the corporate group, which extended to a number of the enterprises constituting this group; (ii) in view of the refusal of the legal representative of the corporate group to negotiate the list of claims, on 17 March 2014 the complainant submitted a labour-related administrative complaint to the Bogotá Territorial Directorate, emphasizing the existence of a security department and of a surveillance and private security skills development department within the corporate group; and (iii) by Decision No. 001355 of 28 August 2014, the coordinating body of the Dispute Resolution and Conciliation Group in the Ministry of Labour (Bogotá Territorial Directorate) found in favour of the corporate group and that decision, against which the trade union organization appealed, was upheld by the Bogotá Territorial Directorate by Decision No. 001715 of 20 October 2014.
3. 310. The Committee observes that the Government refers to these two decisions underscoring that the reason why the claims of the trade union organization were dismissed is due to the fact that the corporate group does not engage in surveillance and private security activities related, connected or complementary to the sector and was therefore not bound to negotiate the list of claims. The Committee also notes that the Government, after having recalled that the Labour Inspectorate is not empowered to settle disputes, which is within the competence of judges, underscores that the complainant does not provide evidence of having resorted to an administrative dispute court in order to challenge these administrative decisions. The Committee observes in this respect that the annexes to the complaint and publicly available information indicate that ANASTRIVISEP filed a number of amparo [protection of constitutional rights] actions for violation of the constitutional right to collective bargaining, which the guardianship courts did not admit on the grounds that these actions should be brought before the administrative dispute courts.
4. 311. The Committee observes that the documents and annexes provided by the parties and, in particular, the substance of the two aforementioned decisions of the labour administration, indicate that: (i) the objective of the corporate group and its constituent enterprises is the contracting and provision of health services and that ANASTRIVISEP, according to its statutes, encompasses “workers in the surveillance and private security industry and similar industries in accordance with their nature or in enterprises providing the following services: security guards, surveillance and countersurveillance, guards, caretakers, bodyguards, dog handlers, technological media operators for the transportation of valuables, custodianship, radio operators, bilingual bodyguards, drivers, security officials, receptionists”; (ii) the corporate group has an internal security department which holds an operating licence issued by the Supervisory Authority for Surveillance and Private Security (Decision No. 513 of 4 February 2010); (iii) under this licence, the internal department is authorized to provide security services within the corporate group and prohibited from providing surveillance services to persons other than those linked to the enterprise or corporate group; (iv) ANASTRIVISEP indicated to the labour administration that its members included 20 workers employed by this internal security department; and (v) according to the labour administration, the existence of an employment relationship between the unionized workers and the corporate group has not been called into doubt but rather the dispute has revolved around the ability of the trade union to collectively bargain with the aforementioned group.
5. 312. The Committee takes due note of these elements. The Committee observes that, on the basis of these elements, the labour administration, referring on the one hand to section 356 of the Substantive Labour Code which classifies trade union organizations according to four types (company, industry or branch of economic activity, occupational and various occupations) and, on the other hand, to the statutes of ANASTRIVISEP, considered that: (i) the existence of an internal security department within the corporate group does not imply that the group forms part of the surveillance and private security industry; and (ii) ANASTRIVISEP, which is a trade union in the aforementioned industry, cannot seek to bargain collectively with a corporate group whose main activity is unrelated to the industry.
6. 313. The Committee recalls that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions and that workers and employers should in practice be able to freely choose which organization will represent them for purposes of collective bargaining [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 502 and 1359]. The Committee considers that inasmuch as the labour administration established that the corporate group has contracted employees as security guards in its internal security department, these workers should be able to be represented by a trade union of their choice, including a branch trade union dedicated to the protection of the specific activities and tasks that those workers in fact carry out within this group.
7. 314. Observing that under the current national system of collective relations, the power to bargain collectively extends to minority trade unions, the Committee requests the Government to ensure that ANASTRIVISEP is able validly to submit lists of claims on behalf of its members who are employed by the aforementioned corporate group.