Interim Report - Report No 348, November 2007

Case No 2355 (Colombia) - Complaint date: 07-JUN-04 - Closed

Allegations: The complainants allege that after four months of meetings to negotiate a list of claims with the ECOPETROL SA enterprise, the administrative authority convened a compulsory arbitration tribunal; subsequently a strike began and was declared illegal by the administrative authority; in this context, the company dismissed more than 200 workers including many trade union officials. Furthermore, the National Trade Union of Workers of Petroleum, Petrochemical and Related Contractors, Services Subcontractors and Activities (SINDISPETROL) alleges the dismissal of a number of workers two days after the declaration of the establishment of the trade union

288. The Committee last examined this case at its November 2006 meeting [see 343rd Report, paras 428–483, approved by the Governing Body at its 297th Session]. The Association of Managers and Technical Staff of the Colombian Petroleum Industry (ADECO) presented new allegations in a communication of 28 May 2007; the Single Confederation of Workers of Colombia (CUT) sent new allegations in a communication dated 5 February 2007. The World Federation of Trade Unions (WFTU) sent new allegations in a communication of 16 August 2007.

1. 289. The Government sent its observations in communications of 21 March, 30 April and 6 July 2007.
2. 290. 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. Previous examination of the case

1. 291. On last examining the case, the Committee made the following recommendations [see 343rd Report, para. 483]:
2. (a) The Committee trusts that the interim recommendations it had formulated in its 337th Report, and approved by the Governing Body in its 293rd Session (June 2005) will be implemented.
3. (b) The Committee once again requests the Government to take steps to make the necessary amendments to legislation (in particular section 430(h) of the Substantive Labour Code) so as to allow strikes in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service with the participation of the trade unions, the employers and the public authorities concerned. It requests the Government to keep it informed of any measure adopted in this regard.
4. (c) The Committee once again requests the Government to take the necessary steps to modify section 451 of the Substantive Labour Code so that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties involved. In this regard, the Committee suggests that the Government examine the possibility of the administrative authority applying to an independent body such as the judicial authority whenever it considers a strike to be unlawful. The Committee requests the Government to keep it informed in this regard.
5. (d) The Committee urges the Government to take steps to prevent the dismissal of the 104 workers reinstated at ECOPETROL SA pursuant to the ruling of the voluntary arbitration tribunal, as a consequence of the strike on 22 April 2004, and to annul the 11 dismissals that have already been ordered. The Committee requests the Government to keep it informed in this regard.
6. (e) As regards the legal proceedings still pending in relation to the 11 other dismissed trade union leaders (according to the Government, there were only seven), with the Government reporting that three cases are being processed and that in one case (that of Mr Nelson Enrique Quijano), the dismissal was confirmed, due to participation by the worker in the illegal work stoppage, the Committee requests the Government to keep it informed of the cases pending concerning the three dismissed trade union leaders. In the case of Mr Quijano, taking into account that his dismissal was based on legislation that does not conform to the principles of freedom of association, the Committee requests the Government to take steps to have him reinstated without delay and, if reinstatement is not possible, to ensure that he is fully compensated.
7. (f) As regards Mr Suárez and Mr Palma who, according to the complainants, have been in custody on charges of conspiracy to commit offences and terrorism since 3 June and 11 June 2004 respectively, the Committee requests the Government to supply information on the charges and the status of the proceedings instituted against them.
8. (g) As regards the new allegations presented by SINDISPETROL, in relation to the dismissal of the founding members of the trade union five days after it had been established and the pressure exerted on other members of the executive body, leading them to relinquish their trade union duties, the Committee requests the Government to supply its observations in this respect.
9. (h) As regards the allegations presented by the USO and SINDISPETROL concerning the refusal by ECOPETROL SA to engage in collective bargaining, the Committee requests the Government to send its observations in this respect without delay.
10. B. New allegations
11. 292. In its communication of 5 February 2007, the CUT alleges that, on 21 January 2005, the arbitration tribunal issued a ruling ordering the reinstatement of 104 workers, with 34 workers remaining dismissed. Of the 104 reinstated workers, 37 were brought before the Domestic Disciplinary Monitoring Board and had their dismissals confirmed and were barred from holding public posts for ten, 11 or 12 years and 45 others were dismissed in the first instance. Moreover, administrative procedures have been initiated against workers for participation in the strike, despite the fact that they were not sanctioned at any time during that action.
12. 293. In its communication dated 28 May 2007, the Association of Managers and Technical Staff of the Colombian Petroleum Industry (ADECO) alleges that the enterprise ECOPETROL SA refuses to bargain collectively with the trade union organization, despite the lists of claims presented on 2 December 2005 and in May 2006. In July 2006, owing to the failure of the direct settlement phase, the case was referred to a compulsory arbitration tribunal, which has not, as yet, been constituted. ADECO alleges, however, that the enterprise did bargain with the USO, concluding a collective agreement in July 2006. The complainant organization argues that, given that at present none of the trade unions within the enterprise enjoy majority support, they should each be allowed to bargain separately, while representing their membership. Moreover, the enterprise maintains a regime of extra-legal bonuses, established through a collective accord with the non-unionized staff members and staff members who give up trade union membership. This regime is more attractive than the collective agreements. This means that unionized workers have not had a wage increase or adjustment to take into account the effects of inflation for the years 2003 and 2004, unlike non-unionized staff members.
13. 294. In its communication of 16 August, the WFTU refers to the death threats made by members of a paramilitary group against the Chairperson of the USO.
14. C. The Government’s reply
15. 295. In its communications dated 21 March, 30 April and 6 July 2007, the Government sends a copy of the action for protection of constitutional rights (tutela) brought by the Colombian Commission of Jurists (CCJ) on behalf of several workers dismissed from ECOPETROL. The action was received by the Sectional Council of the Judicature of Cundinamarca and is currently pending a decision. Moreover, the Government sends the following observations. As to item (a) of the recommendations, concerning implementation of all the recommendations made by the Committee in its 337th Report, of June 2005, (laid out in the recommendations that follow), the Government refers to the observations it made on that occasion.
16. 296. As to item (b) of the recommendations, the Government refers to its previous statements to the effect that the concept of essential public services was defined in ruling No. C-450/95 of the Constitutional Court. This ruling was based on general interest, it being held that the exploitation, refining and transportation of petroleum and its derivatives are an essential public service, in light of which the rights of citizens are protected, in particular those of users of the abovementioned services who may be affected by the interruption of those services. The Government believes that the State must guarantee the continuous provision of essential public services, given that their interruption could have a serious effect on the rights of the citizens, rights that are held to be fundamental. The Government refers to the article entitled “ILO principles concerning the right to strike”, International Labour Review, Vol. 117 (1998) – on criteria regarding the issue of essential services in the strict sense of the term , in which it is stated that “Over time, the supervisory bodies of the ILO have brought greater precision to the concept of essential services in the strict sense of the term (for which strike action may be prohibited). In 1983, the Committee of Experts defined such services as those ‘the interruption of which would endanger the life, personal safety or health of the whole or part of the population’ (ILO, 1983b, paragraph 214). This definition was adopted by the Committee on Freedom of Association shortly afterwards. Clearly, what is meant by essential services in the strict sense of the term ‘depends to a large extent on the particular circumstances prevailing in a country’”. According to the Government, the Constitutional Court based its pronouncement that the activities covered by section 450(h) of the Substantive Labour Code were essential, on this definition. In this way, taking into account the particular conditions affecting Colombia, the Constitutional Court, having examined the issue of what constitutes an essential public service and in particular the essential nature of the activities making up the public service provided by ECOPETROL SA, ruled that these activities constituted an essential public service. It should be pointed out that rulings issued by this Court in constitutional proceedings have an erga omnes effect and are therefore compulsory.
17. 297. Section 53 of the political Constitution of 1991 covers the concept of essential services as set out by the supervisory bodies of the ILO, in that it aims to remove the right to strike in the case of such services while maintaining the link with the traditional Colombian legal concept of public services.
18. 298. As to item (c) of the recommendations, the Government shares the Committee’s belief that this criterion of independence is essential to the exercise of freedom of association. The Government maintains its earlier position, observing that there are no provisions within Conventions Nos 87 and 98 preventing the legality of a work stoppage being determined by a competent government agency (the ministry). If the Government is answerable for Conventions, then there are no grounds for arguing that it should not be the Government that makes the said determination. The Government recognizes the importance of the Committee’s statement and accepts that the ministry should be acting independently when declaring a stoppage to be illegal, in that it must limit itself to objectively establishing what the situation is. The Government emphasizes that the legality of the ministry’s rulings is checked by the administrative judicial authority, the competent body for determining the legality of rulings, this notion – per se – being indissolubly linked to the criterion of independence referred to by the Committee. In order to avoid the abuse of the right to strike, the legislator left the power to declare strikes illegal in the hands of the executive.
19. 299. As to item (d) of the recommendations, in which the Committee requested the Government to take steps to prevent the dismissal of the 104 workers reinstated pursuant to the ruling of the arbitration tribunal, as a consequence of the strike on 22 April 2004, the Government clarifies that, in line with the terms of Act No. 734 of 2002, ECOPETROL cannot deviate from the legal and constitutional provisions which govern the exercise of its functions. Moreover, the Government reiterates that the initiation and evolution of disciplinary proceedings dealt with by the competent authority are the legal consequence of compliance with an arbitration award of 21 January 2005 handed down by the ad hoc voluntary arbitration tribunal, which, in some cases, expressly ordered that reinstatement be carried out in line with the Single Disciplinary Code, as stated in sections Nos 6 and 7 of the decision clauses of the said arbitration award. Although, in certain cases, such disciplinary procedures resulted in the termination of individual contracts, this was not the wish of ECOPETROL SA as employer in the light of the Substantive Labour Code, but rather the outcome of the respective disciplinary procedure carried out by the legally competent judge and based on the evidence presented to that judge, whose decision the enterprise had to respect. The Government emphasizes that non-observance of the legal provisions would mean that the public servants responsible for exercising the disciplinary power of the State within ECOPETROL SA had failed in their duties and responsibilities (with all the legal consequences that this entails), as well as openly affecting the criteria of impartiality that must govern such actions, and, as previously mentioned, decisions handed down by the competent authority with regard to disciplinary issues must be arrived at through the correct procedure. The Government insists that the enterprise has acted entirely in line with domestic legislation and with the criteria regarding such matters established by the highest legal authorities. According to the Government, ECOPETROL’s actions were the result of the decision taken by the ad hoc voluntary arbitration tribunal.
20. 300. As to item (e) of the recommendations, the Government states that, in line with the information provided by the Head of the Labour Management Unit (E) of ECOPETROL, the legal proceedings regarding Omar Mejía Salgado, José Ibarguen and Germán Suárez Amaya are at the following stage:
21. n Special trade union immunity procedure of Omar Mejía Salgado. The Eighth Labour Court of the Cartagena Circuit found in favour of ECOPETROL with regard to the claims made against it by the claimant on 10 December 2004. An appeal was lodged against the ruling and is currently pending a decision of the High Court.
22. n Special trade union immunity procedure of José Ibarguen. The Sixth Labour Court of the Cartagena Circuit ordered that claimant José Ibarguen be reinstated in the post he occupied at the time of his dismissal, or under similar or better conditions and that he be paid all the payments owed from the time of dismissal until his reinstatement, with the corresponding increases, based on the fact that the employment contract was not interrupted from a legal point of view. This decision has been appealed against and is currently pending a ruling of the District High Court and is not final.
23. n Special trade union immunity procedure of Germán Suárez Amaya. Currently pending a decision of the Eighth Labour Court of the Cartagena Circuit.
24. 301. As to the recommendation concerning Nelson Enrique Quijano, Head of the Labour Management Unit (E) of ECOPETROL, the Government states that, on 29 November 2002, a decision was taken, through resolution No. 1878 of 20 November 2002, to terminate the individual employment contracts, unilaterally and for justifiable reasons (under the powers conferred by the Substantive Labour Code), of eleven (11) workers of the enterprise, in the Cartagena Refinery Administration Centre, in accordance with established procedure. This was a result of the active participation of the former civil servants in the collective work stoppage carried out on 19 and 20 November of the same year. These events were in no way linked to the collective work stoppage carried out by the Petroleum Industry Workers’ Trade Union (USO) between 22 April and 27 May 2004, an action declared illegal by the Ministry of Social Protection through resolution No. 1116, of 22 April 2004. Thus the actions and proceedings which gave rise to the termination of the employment contracts of the eleven (11) workers began before the presentation by the USO of the list of claims at the root of the collective labour dispute on 28 November 2002. As to the Committee’s request, with regard to Nelson Enrique Quijano, that the Government “… take steps to have him reinstated without delay and, if reinstatement is not possible, to ensure that he is fully compensated …”, the Government states that Mr Quijano Lozada exhausted all legal channels, failing to obtain any favourable rulings. The ordinary labour court held that the dismissal of Mr Quijano was justifiable under domestic legislation and that the amparo appeal (appeal for protection of constitutional rights) lodged by Mr Quijano was inadmissible because the judge was not competent to hear Mr Quijano’s case, in light of the fact that it is the ordinary labour judges who have competence.
25. 302. As to item (f) concerning Mr Suárez and Mr Palma, who, according to the allegations, were arrested on charges of conspiracy to commit offences and terrorism, on 3 and 11 June 2004, the Government states that it requested the Office of the Attorney-General of the Nation to provide information which will be forwarded as soon as it has been received.
26. 303. As to item (g) of the recommendations concerning the allegations presented by SINDISPETROL in relation to the dismissal of the founding members of the trade union five days after it had been established and the pressure exerted on other members of the executive body, leading them to relinquish their trade union duties, the Government states that the Special Directorate of Barrancabermeja initiated an administrative labour investigation (currently at the evidence-gathering stage) and that once the corresponding ruling has been issued a copy will be forwarded. The Government attaches the enterprise’s response, according to which the dismissals were carried out within an ECOPETROL subcontractor, the enterprise Termotécnica Coinducatrial SA This enterprise states that in the case of the four workers who allege that they were dismissed despite being founding members of SINDISPETROL, three of them (Messrs Jiménez, Luna Mont and Ayala) were not dismissed, rather they were working under contract and had completed the work they had been contracted to carry out. The fourth worker, Mr Villareal, is not on the enterprise’s database. Moreover, the enterprise also denies exerting any pressure on the workers to relinquish trade union membership.
27. 304. As to item (h) of the recommendations concerning the refusal by ECOPETROL to bargain collectively, the Government forwards the response sent by ECOPETROL, according to which the trade union organizations failed to comply with the legal provisions concerning deadlines for the presentation of lists of claims, thus preventing the collective dispute from being initiated. In the present case, in section 173 of the USO–ECOPETROL collective labour agreement (signed on 11 June 2001 and forming part of the regime of agreements in force) the parties established a deadline for denunciations, which was neither amended nor altered by the issuing of the arbitration award of 9 December 2003 and its complementary decisions, in the light of which both the trade union organizations with the right of denunciation and the enterprise shall be subject to the deadline agreed on in the agreement. The agreement states that denunciations shall be made at least 30 days prior to expiry. Item No. 1 of the arbitration award of 9 December 2003, issued by the compulsory arbitration tribunal, convened to settle the collective labour dispute which arose with the presentation of the list of claims by the USO on 28 November 2002 (the USO acted on behalf of ADECO), established a term of validity of two years from the date of issuance, with its duration therefore being extended to 8 December 2005. However, the USO and ADECO presented a recent denunciation on 1 December 2005, that is, in an untimely fashion, given that this was done less than 30 days before the expiry of the deadline. The legal effect of this situation was the extension of the agreement for a period of six months, until 8 June 2006, in line with the agreements and legislation in force. The enterprise states that the trade union organizations with the right to make denunciations under the agreement separately exercised that right on 4 May 2006. The enterprise adds that, on 26 July 2006, an agreement was signed between ECOPETROL and SINDISPETROL, attached to the collective labour agreement in force, demonstrating the enterprise’s willingness to conclude agreements with the trade union organization and, in this way, to maintain a relationship of trust between the parties.

D. The Committee’s conclusions

1. 305. The Committee notes the new allegations presented by CUT, ADECO and the WFTU. The Committee also notes the Government’s observations concerning both the recommendations made by the Committee when it last examined the case and the new allegations presented by the trade union organizations.
2. 306. The Committee recalls that the present case involves the following issues: (1) the declaration of illegality of a strike in the oil sector, owing to the fact that it is considered to be an essential sector; (2) the issuing of the abovementioned declaration by the administrative authority (Ministry of Social Protection); (3) the dismissal of 248 workers in light of the declaration of illegality, of whom 104 were reinstated in line with an arbitration award issued by a voluntary arbitration tribunal (the enterprise has applied the Single Disciplinary Code to allow it to dismiss them again); (4) the dismissal of another seven trade union officials for their participation in a previous work stoppage; (5) the detention of two trade unionists accused of conspiracy to commit offences and terrorism; and (6) the alleged refusal on the part of the enterprise to bargain collectively with the USO, ADECO and SINDISPETROL and the dismissal of the founding members of the latter trade union organization.
3. 307. Summing up the circumstances surrounding the present case, the Committee recalls that, according to the allegations and the Government’s observations, on 22 April 2004, the USO called for a strike within the enterprise, following a long-running dispute which began in December 2002 with the presentation of a list of claims by the USO and the partial denunciation of the collective agreement by the enterprise (it not being possible to reach a direct settlement concerning either of these issues, a situation which gave rise to the appointment of a compulsory arbitration tribunal). Unhappy with the situation, the USO declared the abovementioned strike, which was declared illegal on the same day by the Ministry for Social Protection. Between 30 April and 15 May 2004, the enterprise ECOPETROL SA terminated 248 employment contracts. Many trade union members and officials were dismissed. On 26 May 2004, an agreement was concluded putting an end to the dispute. This agreement consisted, in particular, of a commitment by the enterprise to annul the administrative labour actions against the workers who had not been notified of these actions and the establishment of a new voluntary arbitration tribunal to decide on the workers’ claims. This tribunal was constituted on 12 August 2004 and issued an award on 21 January 2005. This final ruling ordered the reinstatement of 104 workers, compensation without reinstatement for 22 workers, retirement for 87 workers and the dismissal of 33 workers. Under this award, ECOPETROL was ordered to reinstate the dismissed workers while it was being determined whether they had participated in the strike that was declared illegal and, as a consequence, whether there were grounds for the termination of their employment contracts, in which event the enterprise would be free to dismiss the workers again.
4. 308. As to the Committee’s request that the Government take steps to make the necessary amendments to legislation (in particular section 430(h) of the Substantive Labour Code) so as to allow strikes in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service with the participation of the trade unions, the employers and the public authorities concerned, the Committee observes that the Government reiterates its previous observations and considers that the petroleum industry constitutes an essential public service for which the right to strike may be prohibited in order to protect the general interest, an argument supported by the jurisprudence of the Constitutional Court. In this regard, the Committee reiterates its previous statements, made when the case was last examined (see para. 469 ff.). In this regard, in line with the principles it has set out on a number of occasions, strikes may only be banned in cases where there exists “a clear and imminent threat to the life, personal safety or health of the whole or part of the population”, i.e. in services considered essential in the strict sense of the term. Moreover, the Committee has decided on many occasions that the petroleum sector does not display the characteristics necessary for it to be considered as an essential service in the strict sense of the term [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 581 and 587]. The above does not prevent a minimum service being imposed, given that this is a strategic service, of vital importance to the economic development of the country. In this regard, the Committee reiterates that “the establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance” [see Digest, op. cit., para. 606]. The Committee is of the opinion that some of the abovementioned scenarios could apply to the petroleum sector. Under these circumstances, while taking due note of the Government’s repeated explanations of the specific circumstances in the country, the Committee once again urgently requests the Government, in consultation with the representatives of workers’ and employers’ organizations, to take steps to make the necessary amendments to legislation (in particular section 430(h) of the Substantive Labour Code) so as to allow strikes in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service following full and frank consultations with the participation of the trade unions, the employers and the public authorities concerned. The Committee requests the Government to keep it informed of any measure adopted in this regard.
5. 309. As to the Committee’s request that the Government take the necessary steps to modify section 451 of the Substantive Labour Code so that responsibility for declaring a strike illegal does not lie with the Government but with an independent body which has the confidence of the parties involved, the Committee notes the Government’s response in which it reiterates in essence the observations presented when the case was last examined. The Committee reiterates that responsibility for declaring a strike or work stoppage illegal should lie not with the Government but with an independent body which has the confidence of the parties involved, particularly in those cases where the Government is party to the dispute [see Digest, op. cit,. paras 628 and 629], the judicial authority being best placed to act as an independent authority. In this regard, the Committee reiterates that section 451 of the Substantive Labour Code does not conform to the principles of freedom of association. Given these circumstances, the Committee once again urgently requests the Government to take the necessary steps to modify the abovementioned provision so that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties involved. As regards the reference by the Government to the possibility of lodging an appeal against government rulings declaring a strike to be illegal, the Committee suggests that the Government explore the possibility of the administrative authority applying to an independent body such as the judicial authority whenever it considers a strike to be unlawful. The Committee requests the Government to keep it informed in this regard.
6. 310. As to the 104 workers reinstated in light of the decision of the arbitration tribunal of 21 January 2005, whom the enterprise proceeded to dismiss yet again having concluded that the arbitration award authorized it to apply the Single Disciplinary Code if it could be shown that the workers had participated in the strike that was declared illegal, the Committee had requested the Government to take measures to prevent those dismissals, taking into consideration the fact that they were based on legislation not in line with the principles of freedom of association. The Committee regrets to note that according to the new allegations presented by the CUT, the enterprise has already dismissed 37 workers, who have been barred from taking up posts in the public service for more than ten years, and a decision has been taken to dismiss another 45 workers. The Committee notes that the Government reiterates the observations it made when the case was last examined and sends a copy of the action for protection of constitutional rights (tutela) brought by several ECOPETROL workers before the Council of the Judicature.
7. 311. The Committee is of the opinion that the above constitutes a new violation of the principles of freedom of association and recalls that practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [see Digest, op. cit., para. 803]. Moreover, the Committee has on a number of occasions expressed the opinion that the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association [see Digest, op. cit., para. 666]. Under these conditions, the Committee urges the Government to take steps to prevent the dismissal of the 104 workers reinstated at ECOPETROL SA in compliance with the ruling of the voluntary arbitration tribunal, as a consequence of the strike on 22 April 2004, and to annul the 37 dismissals and the sanctions barring the workers from posts in the public service that have already been ordered and to ensure that the 45 dismissals already decided on are not carried out. The Committee requests the Government to keep it informed in this regard, in particular regarding the decision of the Sectional Council of the Judicature concerning the action for protection of constitutional rights (tutela) brought by several ECOPETROL workers.
8. 312. As to the legal proceedings pending concerning the seven trade union officials dismissed (item (e) of the recommendations), the Committee requested the Government to keep it informed of the cases pending concerning the three dismissed trade union officials. In the case of Mr Quijano, taking into account that his dismissal was based on his participation in a strike declared illegal under legislation that does not conform to the principles of freedom of association, the Committee requested the Government to take steps to have him reinstated without delay and, if reinstatement is not possible, to ensure that he is fully compensated. In this regard, the Committee notes the Government’s statement regarding the three cases pending to the effect that in one of the cases, the courts found in favour of the enterprise, in another an order for reinstatement was issued (in the case of the dismissal of Mr Ibaguen), with appeals currently pending against both decisions, and in the third case a court decision is still pending. As to Mr Nelson Enrique Quijano, the Committee notes that the Government reports that the judicial authority held that the dismissal of Mr Quijano was carried out in line with the legislation in force and that the amparo appeal (appeal for protection of constitutional rights) lodged was inadmissible. Once again, the Committee refers to the principles set out in previous paragraphs concerning illegal strikes and work stoppages, and in this regard taking into account that in the case of Mr Quijano, his dismissal was based on legislation that does not conform to the principles of freedom of association, the Committee requests the Government to take steps to have him reinstated without delay and, if reinstatement is not possible, to ensure that he is fully compensated. The Committee also requests the Government to keep it informed of the final outcome of the appeals still pending concerning the three other trade union officials dismissed, and in the case of Mr Ibaguen, the Committee requests that he be reinstated on a temporary basis as ordered by the judicial authority until a ruling has been issued concerning the appeal.
9. 313. As to Jamer Suárez and Edwin Palma, members of the USO, held in custody, according to the complainants, on charges of conspiracy to commit offences and terrorism since 3 and 11 June 2004, the Committee requested the Government to supply information on the charges and the status of the proceedings instituted against them. In this regard, the Committee notes the Government’s statement that a request for information was made to the Office of the Attorney-General of the Nation and that this information would be forwarded as soon as it was received. The Committee recalls that when the case was last examined the Government had already stated that it was awaiting information from the Office of the Attorney-General. The Committee observes that the case involves the detention of two persons for over three years and recalls that the arrest and detention of trade unionists, even for reasons of internal security, may constitute a serious interference with trade union rights unless attended by appropriate judicial safeguards [see Digest, op. cit, para. 75]. In these conditions, the Committee again requests the Government to supply information without delay on the charges and the status of the proceedings instituted against Mr Suárez and Mr Palma, and to ensure that all the guarantees of a normal judicial procedure are in place and to keep it informed in this regard.
10. 314. As to the allegations presented by SINDISPETROL referring to the dismissal of the founding members of the trade union five days after it had been established and two days after the initiation of the trade union organization’s registration procedure and notification of the enterprise ECOPETROL SA and its contractors of the establishment of the trade union, and to the pressure exerted on other members of the executive body, leading them to relinquish their trade union duties, the Committee notes the Government’s statement that the Special Directorate of Barrancabermeja initiated an administrative labour investigation (currently at the evidence-gathering stage) and that the enterprise Termotécnica Coindustrial SA, an ECOPETROL contractor employing members of SINDISPETROL, denied exerting any pressure on workers to resign from the trade union and stated that three of the workers were not dismissed, rather they had been contracted to carry out a specific task and when this work had been completed their contracts were terminated. The enterprise had no record of the fourth worker. The Committee requests the Government to keep it informed concerning the administrative labour investigation initiated by the Special Directorate of Barrancabermeja.
11. 315. As to the allegations presented by the USO and SINDISPETROL regarding the refusal by the enterprise ECOPETROL to bargain collectively, the Committee notes that the Government sends the enterprise’s response, which states that collective bargaining could not be carried out with the USO in December 2005 because the trade union organization had presented a list of claims when the deadline established under the collective agreement in force had expired, but that in May 2006, the USO and ADECO independently presented a new list of claims. The enterprise also attaches a copy of an accord concluded with SINDISPETROL which is attached to the collective agreement in force.
12. 316. Moreover, the Committee notes the new allegations made by ADECO to the effect that, on 26 July 2005, ECOPETROL signed a collective agreement with the USO but that it refuses to bargain with ADECO and that in light of the failure of the direct settlement stage, the matter was referred to an arbitration tribunal which has, as yet, not been constituted. The Committee notes that according to these allegations none of the trade unions within the enterprise currently enjoys majority support and that, as a consequence and in line with legislation, they should all be able to bargain on behalf of their members. The Committee also notes that the complainant organization alleges that the enterprise signed a collective accord with the non-unionized workers and with workers relinquishing trade union membership which offers more advantages than the collective agreements in force. The Committee regrets that the Government has not sent its observations on these latest allegations, presented over a year ago. In this regard, as to the conclusion of a collective agreement with one of the minority trade union organizations and not with the other, the Committee recalls that if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the minority unions in this unit, at least on behalf of their own members [see Digest, op. cit., para. 977]. In these conditions, the Committee requests the Government to keep it informed as to the outcome of the negotiations between the USO and ECOPETROL and, if appropriate, to confirm the recent conclusion of a collective agreement and to take the measures necessary to allow ADECO to bargain collectively with ECOPETROL on behalf of its members. The Committee requests the Government to keep it informed in this regard.
13. 317. As to the conclusion of collective accords with the non-unionized workers or those relinquishing trade union membership which offer better terms than the collective agreements, the Committee insists, as it has done in previous cases involving Colombia, that the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98 and that collective accords should not be used to undermine the position of the trade unions [see 324th Report, Case No. 1973, 325th Report, Case No. 2068 and 332nd Report, Case No. 2046]. As a consequence, the Committee requests the Government to take the necessary measures to ensure that collective accords are not signed with non-unionized workers to the detriment of collective bargaining and collective agreements within the enterprise ECOPETROL SA and to keep it informed of any developments in this regard.
14. 318. As to the allegations presented by the WFTU, taking into consideration the fact that they involve death threats against a trade union official and that such issues are already being examined within the framework of Case No. 1787, these allegations will be examined within that same framework.

The Committee's recommendations

1. 319. In the light of its foregoing interim recommendations, the Committee invites the Governing Body to approve the following recommendations:
   • (a) While taking due note of the Government’s repeated explanations of the specific circumstances in the country, the Committee once again requests the Government, in consultation with the representatives of workers’ and employers’ organizations, to take steps to make the necessary amendments to legislation (in particular section 430(h) of the Substantive Labour Code) so as to allow strikes in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service following full and frank consultations with the participation of the trade unions, the employers and the public authorities concerned. It requests the Government to keep it informed of any measure adopted in this regard.
   • (b) The Committee once again urgently requests the Government to take the necessary steps to modify section 451 of the Substantive Labour Code so that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties involved. As regards the reference by the Government to the possibility of lodging an appeal against government rulings declaring a strike to be illegal, the Committee suggests that the Government explore the possibility of the administrative authority applying to an independent body such as the judicial authority whenever it considers a strike to be unlawful. The Committee requests the Government to keep it informed in this regard.
   • (c) The Committee urges the Government to take steps to prevent the dismissal of the 104 workers reinstated at ECOPETROL SA pursuant to the ruling of the voluntary arbitration tribunal, as a consequence of the strike on 22 April 2004, to annul the 37 dismissals and sanctions barring the workers from public posts that have already been ordered and to ensure that the 45 dismissals already decided on are not carried out. The Committee requests the Government to keep it informed in this regard, in particular concerning the decision of the Council of Judicature on the (tutela) action for protection of constitutional rights brought by the ECOPETROL workers.
   • (d) As regards the legal proceedings still pending in relation to the seven dismissed trade union leaders, the Committee taking into account that in the case of Mr Quijano, his dismissal was based on legislation that does not conform to the principles of freedom of association, requests the Government to take steps to have him reinstated without delay and, if reinstatement is not possible, to ensure that he is fully compensated. The Committee also requests the Government to keep it informed of the final outcome of the appeals still pending concerning the three other trade union officials dismissed, and in the particular case of Mr Ibaguen, the Committee requests that he be reinstated on a temporary basis as ordered by the judicial authority until a ruling has been issued concerning the appeal.
   • (e) As regards Mr Jamer Suárez and Mr Edwin Palma, USO members who, according to the complainants, have been held in custody on charges of conspiracy to commit offences and terrorism since 3 June and 11 June 2004 respectively, the Committee once again requests the Government to supply information without delay on the charges and the status of the proceedings instituted against them and to ensure that all the guarantees of a normal judicial procedure are in place and to keep it informed in this respect.
   • (f) As regards the allegations presented by SINDISPETROL in relation to the dismissal of the founding members of the trade union five days after it had been established and two days after initiating the process of registering the trade union and informing ECOPETROL SA and its contractors of its establishment, and to the pressure exerted on other members of the executive body, leading them to relinquish their trade union duties, the Committee requests the Government to keep it informed with regard to the administrative labour investigation initiated by the Special Directorate of Barrancabermeja.
   • (g) The Committee requests the Government to keep it informed regarding the outcome of the negotiations between the USO and ECOPETROL and, if appropriate, to confirm the recent conclusion of a collective agreement and to take the measures necessary to allow ADECO to bargain collectively with the enterprise on behalf of its members.
   • (h) As to the conclusion of collective accords with non-unionized workers or those relinquishing trade union membership which offer better terms than the collective agreements, the Committee requests the Government to take the necessary measures to ensure that collective accords are not signed with non-unionized workers to the detriment of collective bargaining and collective agreements within the enterprise ECOPETROL SA and to keep it informed of any developments in this regard.