Effect given to the recommendations of the committee and the Governing Body - Report No 316, June 1999

Case No 1925 (Colombia) - Complaint date: 31-MAR-97 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 34. At its March 1998 meeting, the Committee formulated the following recommendations concerning the allegations that were still pending (see 309th Report, para. 119):
   • (a) The Committee requests the Government to transmit the decision concerning the fine imposed upon the company Avianca-Sam-Helicol for having applied a status of "not unionized" to the workers and to confirm that this type of anti-union discrimination practice has ceased. It further requests the Government to keep it informed of the investigations into violations of section 140 of the Labour Code and hopes that these investigations will be concluded very soon.
   • (b) As regards the dismissal of trade union officers from the union's subsidiary office at Cundinamarca (Euclides Arandia, José Angel Cupita, Rubén Darío Leal, José Córdoba and Rosalía Delgado), of union officers at the union's Barranquilla section (Luis Cruz and Gabriel San Juan) and of 16 union members from the operations area at Eldorado Airport in Bogotá, the Committee requests the Government to take all steps forthwith to begin an investigation into the matter and, if it is found that the union officers and members in question were dismissed on grounds of their trade union activities, because of their position as union officers or members, or for anti-union motives, to reinstate them in their posts. The Committee requests the Government to keep it informed of the outcome of this investigation.
   • (c) As regards the failure after 15 December 1996 to deduct trade union dues from the wages of 280 union members on behalf of the complainant, and in some cases the illegal withholding by the company of dues that had been deducted, the Committee, noting the absence of any comments by the Government on this allegation, emphasizes that in considering similar allegations, it has previously recalled that non-payment of union dues can result in serious financial difficulties for trade union organizations and requests the Government to ensure that the company guarantees the deduction and transfer of union dues in the manner provided under section 400 of the substantive Labour Code. The Committee requests the Government to keep it informed in this connection.
   • (d) As regards the allegations concerning the suspension of a permanent trade union licence granted to the union's subsidiary office at Cundinamarca in accordance with a collective agreement, and the withdrawal on 7 November 1995 of recognition as SINTRAVA representatives from members of the union's National Council, the Committee requests the Government to take steps to ensure that an investigation is conducted into the matter and, if the allegations are found to be true, to take any necessary steps to ensure that the relevant terms of the collective agreement are enforced. The Committee requests the Government to keep it informed in this connection.
2. 35. In communications of June 1998 and March 1999, the SINTRAVA sent the following additional information:
   • (a) As regards the application of a "not unionized" status to the workers, the complainant states that after the Avianca-Sam-Helicol enterprise had been fined by the Government for this type of anti-union practice, the management immediately changed its name to "Extra-legal Benefit Plan". Like the former status, the plan is applied in a compulsory manner by the enterprise to the workers covered by the collective agreement, by means of handouts (housing credits or loans for family emergencies); workers who do not accept the plan are dismissed, as was the case of Ms. Gloria Carvajal Beltrán, who was dismissed for having refused the benefits under the plan. As regards the violation of section 140 of the Labour Code (remuneration paid when the worker does not work), the complainant states that the enterprise continues to apply this provision, since the following trade union officers of Avianca have now been subjected to this measure: Carlos Alberto Enríquez, Iván Eduardo Cortés and María Mercedes Sierra (SINTRAV
     • A, Calí section), Melba Florián and Joaquín Herrera (SINTRAVA, Medellín section), Alejandro Angel Ferrer Carvajal, José de los Santos de Avila Cedros and Rubén Jiménez (SINTRAVA, Barranquilla section).
   • (b) As regards the dismissal of trade union officers of the union's subsidiary office in Cundinamarca, the complainant states that only trade union officer Euclides Arandia has been reinstated; as regards José Angel Cupita and Rosalía Delgado, faced with the enterprise's refusal to reinstate them, they were obliged to reach an economic agreement; as regards Rubén Darío Leal, Jorge Cordoba, Luis Cruz, Gabriel San Juan and the 16 trade union members from the operations area at Eldorado airport in Bogotá, all of them are awaiting a judicial decision.
   • (c) As regards the failure to deduct trade union dues, the SINTRAVA states that the enterprise continues to refuse to deduct them.
   • (d) As regards the allegations concerning the suspension of the permanent trade union licence granted to the union's subsidiary office at Cundinamarca in accordance with the collective agreement, the enterprise still refuses to recognize it.
   • (e) The complainant points out that the management of Avianca has ignored requests to hold meetings of the commissions provided for by the agreement, launching smear campaigns against the union to persuade the workers that they do not need trade union representatives to solve their problems.
   • (f) The SINTRAVA alleges that trade union officers and members continue to be unfairly dismissed, as may be seen from the following dismissals: Marlen Astudillo, Gloria López, Aida Luz Montes, Bernardo Lozano, David Beltrán, Luis Bernardo Díaz, William Rojas and Arcesio Beltrán (unionized workers of the Calí base); Santander Gonzalez, Ismael Ponce and Andres Camargo (trade union officers of the Colombian Association of Helicopter Technicians (ASCOTHEL)); all the officers of the Colombian Association of Aviation Mechanics (ACMA) and SINTRAVA union officer Mr. Amarildo Maldonado.
   • (g) Lastly, the complainant alleges that the enterprise does not allow its officers access to the installations of the enterprise in order to carry out their trade union functions.
3. 36. In a communication dated 15 January 1999, the Government sent partial information on the follow-up to the Committee's recommendations. As regards the application of a "not unionized" status to the workers, the Government points out that in addition to a fine of 80 times the minimum wage being imposed on the enterprise, as already mentioned, for having violated section 354 of the Substantive Labour Code, in August 1998 copies of the resolutions by which the Ministry of Labour and Social Security imposed sanctions on Avianca were forwarded to the Public Prosecutor's Office of Bogotá in order for it to take appropriate action, since under the Penal Code this type of action may in some cases constitute an offence. The Committee requests the Government to inform it whether any action has been taken by the Public Prosector's Office of Bogotá in this respect and to send without delay its observations on the allegations that the management of Avianca is still applying the "not unionized" status under the new name
   • "Extra-legal Benefit Plan" and that Ms. Gloria Carvajal Beltrán was dismissed for having refused the benefits under the plan.
4. 37. As regards the violation of section 140 of the Labour Code (remuneration without work), the Government states that as a result of the inquiry which was carried out, the enterprise was fined 30 times the minimum wage. The Committee takes due note of its reply and requests the Government to send it without delay information concerning the allegations to the effect that the enterprise has applied this provision to Avianca trade union officers Carlos Alberto Enríquez, Iván Eduardo Cortés and María Mercedes Sierra (SINTRAVA, Calí section), Melba Florían and Joaquín Herrera (SINTRAVA, Medellín section), Alejandro Angel Ferrer Carvajal, José de los Santos de Avila Cedros and Rubén Jiménez (SINTRAVA, Barranquilla section).
5. 38. As regards the dismissal of trade union officers of the union's subsidiary office in Cundinamarca and the 16 trade union members from of the operations area at Eldorado airport in Bogotá, the Government points out that it is not for the Ministry of Labour to judge whether such dismissals are legal, but for the labour courts, and that, moreover, the workers affected have already initiated proceedings before the competent labour courts. In this respect, the Committee regrets that the Government has not carried out an inquiry to determine whether these dismissals were carried out on anti-union grounds. The Committee recalls that "where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 754).
6. 39. The Committee notes with regret that, according to the information provided by the complainant, only the trade union officer Euclides Arandia has been reinstated and that José Angel Cupita and Rosalía Delgado, faced with the enterprise's refusal to reinstate them, were obliged to reach an economic agreement. As regards Rubén Darío Leal, Jorge Cordoba, Luis Cruz, Gabriel San Juan and the 16 trade union members from the operations area at the Eldorado airport in Bogotá, the Committee requests the Government to inform it as soon as possible of the outcome of the proceedings instituted by the trade union officers and members before the labour courts.
7. 40. As regards the failure to deduct trade union dues for the complainant, the Government states that the inquiry carried out by the Ministry of Labour and Social Security resulted in the enterprise being fined for violation of section 400 of the Substantive Labour Code, which provides for the obligation of the enterprise to deduct trade union dues. The Committee notes this information and, considering that the complainant states that the enterprise, despite a fine having been imposed, still refuses to make such deductions, requests the Government to take the necessary steps to ensure that Avianca complies with the provisions of section 400 of the Substantive Labour Code and to keep it informed in this connection.
8. 41. As regards the allegations concerning the suspension of the permanent trade union licence granted to the union's subsidiary office in Cundinamarca under the collective agreement, the Government states that the Ministry of Labour and Social Security has already initiated an inquiry. In this respect, the Committee requests the Government to inform it as soon as possible of the outcome of this inquiry.
9. 42. As regards the new allegations concerning: (a) the enterprise's ignoring requests to convene a meeting of the commissions provided for by the collective agreement; (d) the unfair dismissals of Marlen Astudillo, Gloria López, Aida Luz Montes, Bernardo Lozano, David Beltrán, Luis Bernardo Díaz, William Rojas and Arcesio Beltrán (unionized workers of the Calí base), of Santander Gonzales, Ismael Ponce and Andres Camargo (trade union officers of the Colombian Association of Helicopter Technicians (ASCOTHEL)), of all the officers of the Colombian Association of Aviation Mechanics (ACMA) and the SINTRAVA union officer Amarildo Maldonado; and (c) the denial of access by the enterprise to SINTRAVA officers to the installations of the enterprise in order to carry out their trade union functions, the Committee requests the Government to send it information in this connection without delay.