Interim Report - Report No 138, 1973

Case No 719 (Colombia) - Complaint date: 19-AUG-72 - Closed

1. 55. The complaint of the International Transport Workers' Federation (ITF) is contained in two communications dated 19 and 21 August 1972. The complaint of the National Union of Workers of Avianca (SINTRAVA), the Colombian Association of Aircraft Mechanics (ALMA) and the Association of Flight Auxiliaries (ACAV) is contained in a communication dated 26 August 1972. By a communication dated 5 September 1972, the ITF requested that its complaint and that of the aforementioned Colombian organisations should be regarded as one single complaint. The ITF and the SINTRAVA supplied additional information by two communications dated 9 and 23 April 1973 respectively.
2. 56. To date, the Government has forwarded its observations only on the original complaints from the four organisations, by a communication dated 19 February 1973.
3. 57. Colombia has not ratified either the Freedom of Association and Protection of the Right to Organise convention, 1948 (No. 87), or the Right to organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 58. The complainants state that on 26 June 1972 the organisations SINTRAVA, ACMA and ACAV submitted a set of claims to the Colombian National Airline Company (AVIANCA), which responded with a set of counter-claims proposing the abolition of various benefits acquired under previous collective agreements and the approval of a set of internal rules detrimental to the workers. AVIANCA is alleged to have followed a policy of trade union repression consisting in the dismissal of union leaders and other workers and to have remained intransigent during the collective bargaining until it broke off the talks after thirteen meetings without agreeing to any of the workers' claims. In view of this attitude the workers decided not to work overtime until such time as AVIANCA changed its attitude and was willing to negotiate in good faith.
2. 59. The complainants continue by stating that the AVIANCA then accused the workers of sabotage, as a result of which the Minister of Labour, without investigating the matter, suspended the legal personality of the three organisations and ordered that their funds be frozen. At the same time the police invaded the airports, as a result of which the personnel stopped work and later withdrew from the work centres. The Company, for its part, cancelled certain transport services. On 16 August 1972 the Minister of Labour declared the partial stoppage of work to be illegal and authorised AVIANCA to dismiss trade union leaders and workers. The total number of workers dismissed was 400, in addition to all the leaders of the three organisations. The complainants conclude by asserting that AVIANCA and the Ministry of Labour are trying to negotiate with certain workers whom they trust absolutely and who were expelled from SINTRAVA for mishandling trade union funds and working in league with the employers; that the police prevent the workers from holding meetings; that AVIANCA has put every form of moral and material pressure on the workers, and that under Colombian law employers are not authorised to submit claims to the workers.
3. 60. In its reply the Government states that after the denunciation of the collective agreement then in force by both SINTRAVA and AVIANCA negotiations were started but no positive results were achieved. No settlement having been reached, the three trade union organisations launched the so-called "tortoise plan which involved the daily obstruction of the rendering of a public service - i.e. transport, the distribution of air mail, etc. - regardless of the fact that the National Constitution prohibits strikes in public services and section 430 of the Labour Code explicitly prohibits strikes in land, water and air transport. The "tortoise plan" consisted in doing less work at a slower speed, intentionally slowing down the pace of work. Section 60 of the Labour Code forbids workers to slow down the rate of work intentionally, to interrupt work, to promote untimely stoppages of work or to incite others to declare or maintain such stoppages, while section 62 declares insufficient work output to be a lawful ground for dismissing a worker or terminating his contract of employment.
4. 61. The Government continues by stating that the Ministry of Labour intervened to try to convince the trade union leaders that the workers were under an obligation to discharge their duties so that negotiations on their claims could proceed. Although the unions maintained that it was not "tortoise plan", but that the workers had simply refused to work overtime, on 11 August 1972 the representatives of the three organisations called on the employees of AVIANCA to help to restore the Company's operations to normal. The undertaking even announced that certain serious acts had been committed which had endangered the lives of passengers and crew members.
5. 62. At the same time, declares the Government, the Chief of the Trade Union Auditing Section of the Ministry of Labour made a request to the Secretary-General of the Ministry for the suspension of the legal personality of the three organisations on the ground that evidence of improper handling of union funds had been found during inspections carried out in these organisations. According to the information supplied by the Government irregularities had been brought to light in respect of various financial operations. In the case of one of the organisations, the last accounts submitted to the Ministry covered the period up to June 1960, whereas the law requires the submission of accounts at six-monthly intervals. In the light of these facts the Minister suspended the legal personality of the three unions on 15 August 1972.
6. 63. On 15 August 1972 the workers came out on strike. The strike was declared unlawful by the Ministry of Labour, with the result that the Company was free to dismiss workers who persisted with the stoppage, and the special immunity from dismissal enjoyed by trade union officials ceased to be operative. Since the strike had been declared by the three trade unions, the suspension of their legal personality was ratified in accordance with section 450 of the Labour Code.
7. 64. The Government goes on to state that on 29 August 1972 the presidents of the three unions requested the Minister of Labour to revoke the suspension of legal personality, offering to place at the Ministry's disposal all their ledgers and documents and acquiescing in the continued freezing of the unions' funds while these were being inspected, so that "the authorities will be certain of complete control of them". On the same day the suspension of legal personality was revoked, and after various approaches to the parties by the labour authorities the conciliation stage in the negotiations on the workers' claims was initiated, and was pursued until 29 September 1972. No settlement having been reached, the Ministry then set up an arbitration board in accordance with the terms of Act No. 48 of 1968, which lays down that collective disputes in public services are to be submitted to compulsory arbitration if no solution has been found at the direct settlement or conciliation stage. The arbitration award was published on 21 December 1972, and at the request of the parties the board issued a statement clarifying certain clauses in the award on 2 February 1973.
8. 65. The Government concludes by stating, inter alia, that AVIANCA is not a state-owned undertaking but a privately owned limited liability joint stock company, that it was never the intention of the Government to eliminate the unions concerned but that it had to take certain steps because the unions had broken the law, and that it was not a question of restricting the right to strike but of regulating it so as to prevent a public service from being adversely affected.

B. B. The Committee's conclusions

1. 66. The Committee observes that from the information at its disposal there appear to be three main problems at issue in this case as far as freedom of association is concerned; the control of trade union funds and their freezing by order of the administrative authorities, the suspension of the legal personality of trade unions by administrative authority and the restriction of the right to strike.
2. 67. As regards trade union funds, the Committee has already observed in the past that, in general, trade union organisations appear to agree that legislative provisions requiring, for instance, financial statements to be annually presented to the authorities in a form prescribed by law, and the submission of other data on points which may not seem clear in the said statements, do not per se infringe trade union autonomy. However, as concerns other measures of administrative supervision such as special audits and investigations, the Committee has expressed the view that they should be applied only in exceptional cases when justified by grave circumstances - for instance presumed irregularities in the annual statement or irregularities reported by members of the organisation - so as to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a union's exercise of the right to organise its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential.
3. 68. In the present case the inspections of trade union accounts carried out by the administrative authorities appear to have been directly related with the participation of the three organisations concerned in the collective dispute at AVIANCA. It is in fact to be seen from the information supplied by the Government that some of the irregularities discovered by the competent service relate to financial periods of a much earlier date and might have given grounds for the taking of certain measures, under the law, at the time they were perpetrated.
4. 69. On the other hand - and this leads to the second problem mentioned - in view of these irregularities the administrative authorities decided to suspend the legal personality of the three unions concerned. As already pointed out by the Committee, such action is incompatible with the principle that workers' organisations should not be liable to be suspended by administrative authority. This observation is equally applicable to the decision taken by the administrative authorities to ratify the suspension of legal personality in accordance with section 450 of the Labour Code when the strike at AVIANCA was declared to be unlawful.
5. 70. The Committee considers that if the administrative authorities discover, in circumstances of the kind described in paragraph 13, that certain irregularities have been committed in the administration of trade union funds they should make this known to the judicial authorities so that these authorities may examine the case and impose such penalties as may be justified under the law. It is indeed important that control over the internal acts of a trade union and the power to take measures for its suspension or dissolution should be exercised by the judicial authorities, not only to ensure the right of defence (which normal judicial procedure alone can guarantee), but also to avoid the risk of measures taken by the administrative authorities appearing to be arbitrary.
6. 71. As concerns the allegations relating to the right to strike, the Committee has constantly taken the view that such allegations are not outside its competence in so far as they concern the exercise of trade union rights. The Committee has also expressed the opinion that the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interests. In the present case the workers concerned have not enjoyed the right to strike since the legislation deems them to belong to a public service, in which collective disputes have to be settled by compulsory arbitration and strikes are not allowed.
7. 72. While the Committee has repeatedly stated that where strikes are prohibited or subject to restrictions in undertakings or services deemed to be essential, such restriction should be accompanied by adequate, impartial and speedy conciliation procedures', it has also taken the view that this principle might be set aside if a strike were declared illegal in one or more firms which were not performing an "essential service" in the strict sense of the term.

The Committee's recommendations

1. 73. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to take note of the fact that the collective dispute at the Colombian National Airline Company (AVIANCA) has been settled;
   • (b) to draw the attention of the Government to the principles and observations set forth in paragraphs 67, 69, 70, 71, and 72, and in particular those to the effect that;
   • (i) as concerns certain measures of administrative supervision of trade union finances such as special audits and investigations, they should be applied only in exceptional cases when justified by grave circumstances - for instance presumed irregularities in the annual statement or irregularities reported by members of the organisation - so as to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a union's exercise of the right to organise its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential;
   • (ii) as concerns the suspension of the legal personality of the trade union organisations SINTRAVA, ACMA and ACAV, such action is incompatible with the principle that workers' organisations should not be liable to be suspended by administrative authority; and
   • (c) to take note of this interim report, it being understood that the Committee will submit a further report when it has received the Government's observations on the additional information supplied by the complainants.