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Interim Report - Report No 343, November 2006

Case No 2362 (Colombia) - Complaint date: 03-JUN-04 - Follow-up

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Allegations: Anti-union dismissals in the context of restructuring beginning in March 2004 within the AVIANCA-SAM-HELICOL group of companies; re-hiring of dismissed workers through work cooperatives, depriving them of coverage under the collective agreement with the group; threats against trade union officials, failure to comply with the collective agreement, pressure on individuals to sign a (non-union) collective accord and dismissals of trade union officials; non-compliance with a collective agreement and signing of a (non-union) collective accord

484. The Committee last examined this case at its June 2005 Session [see 337th Report, paras. 716-770]. The National Union of Employees of AVIANCA (SINTRAVA) presented new allegations in a communication dated 11 October 2005. The Colombian Association of Aviation Mechanics (ACMA) presented new allegations in October 2005 (given to the high-level tripartite visit which was held in Colombia from 24 to 29 October 2005). The Colombian Association of Civil Aviators (ACDAC) presented new allegations in a communication dated 23 May 2006.

  1. 485. The Government sent its observations in communications of 12 August and 15 September 2005 and 1 and 9 August 2006.
  2. 486. 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

A. Previous examination of the case
  1. 487. In its June 2005 Session, the Committee made the following recommendations [see 337th Report, paragraph 770]:
  2. (a) As regards the collective dismissal of workers affiliated to SINTRAVA and their replacement by workers in cooperatives or other companies in the AVIANCA-SAM group who do not have trade union rights, the Committee requests the Government to carry out an impartial investigation in order to ascertain whether the dismissed workers were in fact replaced by others from cooperatives or other companies in the AVIANCA-SAM group to do the same work; whether these new workers have trade union rights and, if that is not the case, to take steps to ensure full respect for freedom of association in line with the principles mentioned in the conclusions. The Committee requests the Government to keep it informed in this regard.
  3. (b) As regards the allegations of threats against trade union members and officials in Cali by the United Self-Defence Forces of Colombia (AUC), the Committee requests the Government to carry out an independent investigation into the allegations and, if they are found to be true, to immediately take steps to ends these threats.
  4. (c) With regard to the adoption by the company of new internal regulations without consulting the trade union, the Committee requests the Government to send its observations on the matter without delay.
  5. (d) As regards the allegations made by ACDAC concerning the violation by HELICOL S.A. of the collective agreement, the Committee requests the Government to take the necessary steps to ensure full compliance with the collective agreement in force.
  6. (e) As regards the failure to bring salaries up to date, the Committee requests the Government and the complainant to clarify whether or not the collective agreement was formally denounced, whether an impartial arbitration tribunal was actually appointed and, if so, whether that decision was rescinded, and whether the complainant appealed against that decision.
  7. (f) As regards the allegations regarding pressure on workers to leave their union and sign a non-union collective accord, the Committee requests the Government to take the necessary steps to ensure that the HELICOL S.A. workers are not intimidated into entering into a collective accord against their will which would require them to leave their trade union.
  8. (g) As regards the dismissal of 15 HELICOL S.A. pilots, of whom one had trade union immunity, another had protection from dismissal as a negotiator (Captain Leonardo Muñoz), and a third reported criminal contraventions within the company while the others were forced to accept voluntary retirement, the Committee requests the Government:
  9. (i) to inform it whether judicial authorization was sought before the union official's dismissal;
  10. (ii) with regard to the appointment of a negotiator in contravention of the collective agreement, to inform it whether or not the irregularity of the appointment was established by the judicial authority and to send a copy of the ruling;
  11. (iii) to inform it of any legal proceedings regarding the dismissals of the 15 pilots.
  12. (h) As regards the failure to respect the trade union immunity of Captain Juan Manuel Oliveros, in view of the vague wording of the allegation, the Committee requests the complainant to specify how the official's trade union immunity has been violated.
  13. (i) As regards the allegations concerning the refusal by the company AEROREPUBLICA S.A. to bargain collectively and the dismissal and sanctions against trade union officials for exercising their rights, the Committee requests the Government to carry out an impartial investigation and send its observations without delay.
  14. B. New allegations
  15. 488. In its communication of 11 October 2005, the National Union of Employees of AVIANCA (SINTRAVA) alleges that the enterprise is offering individual workers greater benefits than those outlined in the collective agreement on condition that they renounce it. The complainant also alleges that on 3 September 2005 it signed an agreement, after presenting a list of demands, and that the enterprise then immediately summoned several trade union officials to offer them voluntary retirement. Those officials are: Alejandro Ferrer Carvajal, Adrián Marthe, Ramiro Vázquez de Moya, Rubén Jiménez Moreno, Benjamín Guzmán Bahoque, José de Avila Cedrón, Melba Florián, Jorge Loaiza, Estella Londoño, Darwin Fonseca Veloza and Jorge Aragón. Acting in this way, the enterprise is going against clause 1, paragraphs 1 and 2 and clause 5. According to the complainant, in these clauses the enterprise undertakes to abstain from trade union persecution, as well as any other act that would go against the free right to organize, to respect the right to freedom of association and to abstain from retaliating against any worker or trade union organization for presenting a list of demands.
  16. 489. In its allegations of October 2005, the Colombian Association of Aviation Mechanics (ACMA) reports that, since 1995, the enterprise AVIANCA S.A. has pressurized unionized workers to leave the company, guaranteeing them high levels of compensation and that they could continue working through the Avianca Cooperative (COOPAVA), which would mean that they would then not be able to join a trade union as they would no longer be workers but rather cooperative partners. Those workers who did not accept were transferred in violation of the collective agreement and those who did accept were not given the benefits they had been guaranteed. Then, in 1996, the enterprise dismissed all unionized workers without labour stability and retired all those with more than 27 years of service. Those with more than 24 years of service were also offered proportional pensions.
  17. 490. This represented 40 per cent of the enterprise’s workforce. The remaining 60 per cent, who had been with the enterprise for between 17 and 24 years, were offered fast promotions, wage increases and training courses for licences, on the condition that, among other things, they renounced the current collective agreement. Several union officials who did not agree to these conditions were dismissed but then had to be reinstated in 2000 following a judicial decision. The complainant notes that since then they have been unable to bargain collectively with the enterprise, and that, in spite of having elected a negotiating committee which included members of ACMA and SINTRAVA, the Government only negotiated with the latter in 2002, and recently in 2005, and has not permitted ACMA to participate as a minority trade union. It also alleges that they are denied union leave and promotions, discriminating between them and the non-unionized workers.
  18. 491. In its communication of 23 May 2006, the Colombian Association of Civil Aviators (ACDAC) alleges that the enterprise HELICOL S.A. unilaterally fixed leave of one fixed day per week, as well as rescheduling all the flights of Mr. Orlando Cantilo, a member of the executive board. The complainant also alleges discrimination between unionized aviators, who are covered by a collective agreement, and non-unionized aviators, who benefit from a (non-union) collective accord with respect to benefits for length of service and promotion.
  19. 492. The complainant also alleges acts of anti-union discrimination in the enterprise AEROREPUBLICA S.A., including the non-payment of wages and the dismissal of Mr. Roberto Ballén. The complainant refers to various ongoing legal cases on these issues. In one of the cases brought by the enterprise, the judicial authority lifted Mr. Ballén’s union privilege, which then allowed the enterprise to dismiss him. The complainant has lodged an appeal against that judicial decision.
  20. C. The Government’s reply
  21. 493. In its communications dated 12 August and 15 September 2005 and 1 and 9 August 2006, the Government made the following observations.
  22. 494. Regarding subparagraph (a) of the Committee’s recommendations regarding the collective dismissal of workers affiliated to the National Union of Employees of AVIANCA (SINTRAVA) and their replacement by workers in cooperatives who do not have trade union rights, the Government states that, in accordance with article 39 of the national Constitution, all workers have the right to form trade unions or associations without intervention from the State, with the exception of public servants, a provision which is in accordance with article 353 of the Substantive Labour Code subrogated by article 38 of Act No. 50 of 1990 and modified by article 1 of Act No. 584 of 2000.
  23. 495. However, the Government states that the regulations of the associated labour cooperatives state that its members do not have an employment relationship, and are characterized by the following:
  24. – they are associated enterprises with no profit motive;
  25. – they link the individual work of associates with their incomes for the production of goods, the completion of works or the performance of services in a self-regulating way;
  26. – voluntary entry and retirement;
  27. – each member is the owner, possessor or holder of work materials;
  28. – they are not regulated by labour legislation but by their own statutes and regimes.
  29. 496. It can be gathered from this, according to the Government, that if the members of an associated labour cooperative fulfil the conditions laid down in the Constitution and in law for joining a trade union, they can do so. The Government stresses that of the 46 people dismissed collectively, none was directly linked to the enterprise or provides their services through an associated labour cooperative.
  30. 497. Regarding the Committee’s request to investigate AVIANCA S.A. for evidence that they hired people from cooperatives to replace dismissed unionized workers, the Government notes that the Ministry of Social Protection does not have the jurisdiction to launch an investigation for this reason unless there has been trade union persecution. Article 33 of the Political Constitution provides for economic freedom, understood to mean the freedom of employers to hire the staff that they consider necessary with a view to improving production, as long as the rights of workers are respected. The Government states, however, that it will officiate, at the Territorial Directorate of Cundinamarca of the Ministry of Social Protection, to obtain a ruling on the viability of launching an administrative labour investigation.
  31. 498. Regarding subparagraph (b) of the recommendations on the allegations of threats against unionized workers in Cali by the United Self-Defence Forces of Colombia (AUC), the Government requests clarification on the names of the people who have been threatened and specification of the acts behind the threat, so that they can communicate the information to the relevant authorities.
  32. 499. Regarding subparagraph (c) of the recommendations on the adoption by the company of new internal regulations without consulting the trade union, in contravention of current legislation, the Government states that the labour regulations contain the collection of standards or provisions that govern the conduct of all parties for the duration of the labour relationship. That, although it is drawn up by the employer without outside intervention, needs to be revised and approved by the administrative labour authorities. The Government states that the approval of the regulations does not violate Convention No. 98 as it does not infringe on the right to organize or negotiate; for regulations to be approved, their contents must conform to internal legislation and cannot contain standards prohibiting workers to join a trade union or use that as a cause for dismissal. Likewise regarding collective bargaining, no part of the regulations can contain a standard impeding the free exercise of the right to negotiate. The Government would like to reiterate that national criminal law categorizes this type of behaviour as a punishable offence.
  33. 500. The Government notes that, on 16 May 2003, the enterprise AVIANCA S.A. presented the internal labour regulations to the Ministry of Social Protection for approval. The Atlantic Territorial Directorate of the Ministry of Social Protection, in accordance with resolution No. 1508 of 25 September 2003, objected to the internal labour regulations of AVIANCA S.A. because it considered that article 93 of the regulations should be deleted, as the just causes for termination of employment contracts are specifically established in article 7 of Legislative Decree No. 2351 of 1965. In the same way it considered that article 94 did not conform to the law. AVIANCA S.A. lodged appeals against the aforementioned resolution, resulting in resolution No. 000386 of 21 April 2004, which revoked resolution No. 1508 of 25 September 2003, approving AVIANCA S.A.’s internal labour regulations. In conclusion, the Government emphasizes that the Ministry of Social Protection acted in accordance with the provisions of national legislation, as the adoption of the regulations conformed to legal requirements.
  34. 501. Regarding the failure to notify the trade unions ACMA, ACAV, ACDAC, ACDIV and SINDITRA, the Government states that the Ministry of Social Protection followed the relevant procedure in accordance with the provisions of title 1 of Chapter IV of the Substantive Labour Code, regarding the procedure and revision of the internal labour regulations. Once the process of revision and approval of AVIANCA’s internal labour regulations had been completed, the Atlantic Territorial Directorate of the Ministry of Social Protection notified SINTRAVA of resolution No. 000386 of 21 April 2004, complying with the provisions of the law; this shows that the other trade unions had some knowledge of it, and that the employer, in accordance with the provisions of article 120 of the Substantive Labour Code must publish the regulations and the Approval Resolution in two different places for two weeks, the time which the trade unions have to challenge the administrative act using the legal mechanisms such as direct repeal or appearing before the relevant administrative body to question the legality of the administrative act approving the regulations. Trade Unions which do not conform to the decisions made by the administrative authority have legal mechanisms for challenging the contents of the administrative acts.
  35. 502. The Government adds that, in accordance with article 109 of the Substantive Labour Code, the clauses of the regulations that weaken the conditions of the worker compared to what is established in laws, individual contracts, agreements, collective agreements or arbitrary decisions have no effect, as the latter override the regulations when they are in the worker’s favour. According to the Government, the approval of internal labour regulations does not adversely affect trade union rights or freedom of association, as the internal labour regulations are a statute laying out the reciprocal obligations of the parties, thus forming a normative instrument that, far from weakening the conditions of the worker, must be subject to the principles, rights and duties corresponding to an adequate and efficient employer organization.
  36. 503. Regarding the enterprise unit AVIANCA-SAM-HELICOL, the Government clarifies that it ceased to exist following the declaration of loss of executive force of resolutions Nos. 0006 and 01017 of 6 January and 7 April 1976 respectively, which had declared the enterprise unit between the aforementioned companies, because the assumptions of fact and of law to maintain this unit had disappeared, as expressed in the Ministry of Social Protection resolution No. 0004045 of 15 December 2003.
  37. 504. Regarding sub-paragraph (d) of the recommendations about the allegations made by ACDAC concerning the violation by HELICOL S.A. of the signed collective agreement, the Government objects that the trade union has not indicated how the enterprise violated the provisions of the collective agreement in force and notes that the enterprise did not therefore send its comments on the matter. The Government adds that the Territorial Directorate of Cundinamarca, through its inspections, has sanctioned HELICOL S.A. and AEROREPUBLICA S.A. for violating the collective labour agreement, in accordance with the provisions of resolutions Nos. 2410 of 25 June 2004, 3702 of 28 September 2004 and 3923 of 11 October 2004.
  38. 505. Regarding subparagraph (e) of the recommendations on updating salaries, the Government notes that this point should not be examined by the Committee on Freedom of Association, as it is outside the texts of Conventions Nos. 87 and 98 and has no reference to trade union rights or freedom of association. The Government notes that the trade union has lodged an appeal for the protection of its constitutional right (amparo) which was not approved in the first instance, because it was considered that these were matters for ordinary law and because negotiations were pending, which is why the organization presented the challenge.
  39. 506. The Government adds that a series of collective labour agreements have been signed between HELICOL S.A. and ACDAC, the last of which was signed on 29 June 2001, covering the period 1 April 2001 to 31 March 2003. The validity of this agreement was extended twice for the period established in the Substantive Labour Code, following decisions adopted by the trade union to delay presenting the lists of demands. In the end, the trade union denounced the collective agreement and presented the list of complaints, a direct settlement stage began in May 2004, but no agreement was reached because HELICOL S.A. proposed similar conditions to those established in the workers’ (non-union) collective accord, at which point the trade union’s negotiating committee left the negotiations and refused to discuss these terms. For its part, the Seventeenth Inspectorate of the Territorial Directorate of Cundinamarca, through resolution No. 3794 of 4 October 2004, ordered the parties to move the direct settlement stage forward within five (5) working days, as established in law. The previous resolutions are no longer stable, because legal appeals have been lodged against them which are ongoing.
  40. 507. Presently, the Coordination of the Prevention, Inspection and Control Group of the Territorial Labour Directorate of Cundinamarca of the Ministry of Social Protection is in charge of the decision on the constitution of the Arbitration Tribunal, because the direct settlement stage has passed and there will be no strike as it is a public service. This decision is based on the appeal and the secondary appeal lodged by the enterprise against resolution No. 0003794 of 4 October 2004, during which both the trade union and the enterprise were ordered to negotiate in the direct settlement stage.
  41. 508. Regarding subparagraph (f) of the recommendations on the allegations regarding pressure on workers to leave their union and sign a (non-union) collective accord, the Government indicates that HELICOL S.A. and the vast majority of its workers signed up to a (non-union) collective labour accord, which was negotiated not only with pilots and co-pilots but with all employees in the enterprise, bringing together both their expectations and the needs of the enterprise. It is subject to the provisions of articles 481 and ff. of the Substantive Labour Code, in accordance with which, the negotiations took place between the employer and its non-unionized workers. Negotiating and/or signing up to the accord were completely free and voluntary acts on the part of workers, who assessed its interest according to their expectations.
  42. 509. The Government notes, however, that, in the second instance, in accordance with the decision of the Twenty-fifth Criminal Court of the Bogota Circuit, it decided to protect the unionized workers’ request and ordered: “to establish the same conditions, complete equality in the areas of wages, benefits and working conditions, for its unionized and non-unionized workers, extending to them the same labour benefits that are established for non-unionized workers in the current (non-union) collective labour accord”.
  43. 510. Regarding the allegations of pressure on workers to sign or later join the (non-union) collective accord, the Government notes that the enterprise denies this and indicates that several of the resignations presented by HELICOL S.A. pilots to ACDAC were made before the accord was established.
  44. 511. Regarding subparagraph (g) of the recommendations which refers to the allegations of the dismissal of 15 HELICOL S.A. pilots, one of whom had trade union immunity, another had protection from dismissal as a negotiator of the list of demands, a third had reported contraventions within the company, while the others were forced to accept voluntary retirement, the Government makes the following observations.
  45. 512. Regarding the dismissal of Captain Leonardo Muñoz Olea without just cause and without consideration of his special status as a negotiator of the list of demands with union immunity, the Government states that Captain Muñoz was appointed as the negotiator by the assembly of unionized workers who approved the denouncement of the collective agreement in March 2003. The appointment of Captain Muñoz was communicated to the enterprise, which meant that he resigned from his post as a flying instructor in accordance with the provisions of clause 20 of the collective labour agreement: “pilots who are members of ACDAC and occupy administrative positions in the enterprise will have grounds for impediment for negotiating lists of demands, dealing with clauses and special conventions modifying posts, wages and signatures of special acts”. As a result he also stopped receiving the administrative bonus allocated to the post of flying instructor.
  46. 513. On the express decision of the union, the negotiations were not completed but rather the enterprise was notified, from September 2003, of the intention to extend the agreement until 31 March 2004. As a result, with no negotiations to continue, all their accompanying acts were left without effect, such as the denouncements of the agreements presented by the union and the enterprise and the appointment of the union’s negotiating committee. In light of this, Captain Leonardo Muñoz Olea requested to be reinstated as a flying instructor, which was done with the corresponding payment of the administrative bonus, which had yielded interest since his dismissal from the company. The enterprise decided, without just cause and having complied with the legal requirements, to dispense with the services of Captain Leonardo Muñoz Olea as of 14 April 2004, when Captain Muñoz was notified. The union proceeded to communicate the appointment of the new negotiating committee for the list of demands, including Captain Muñoz, to the enterprise in an official letter dated 22 April 2004 received the same day. Therefore, the enterprise only learned of his position as a negotiator after he had been dismissed. In addition, the Captain did not request union immunity, which had to be done within two (2) months, in accordance with the provisions of our legal order.
  47. 514. Regarding Mr. Néstor Morales León, the Government notes that the enterprise decided to terminate the employment contract as of 22 August 2003, with just cause deriving from the fact that he had begun drawing his pension, which constitutes legal reason to terminate the employment contract. The former worker called on ordinary justice to order his reinstatement because Captain Morales supposedly had trade union immunity because he was part of the demands committee. The case was heard in the first instance by the Fourteenth Labour Court of the Bogotá Circuit, which, in its ruling on 4 March 2005, absolved the enterprise of all allegations made against it and ordered the plaintiff to pay costs. This was appealed by the plaintiff and, in a ruling on 17 June 2005, the Labour Decision Chamber of the Bogotá Legal District Tribunal upheld the ruling and ordered the plaintiff to pay costs. This ruling stands. Captain Morales did not have trade union immunity and therefore it did not need to be lifted.
  48. 515. Regarding Mr. Gerardo Sánchez, the Government notes that the enterprise terminated his employment contract as of 14 April 2004, without just cause and with payment of the corresponding compensation. In this case there has been no legal or administrative appeal of any kind from the former worker. As regards the criminal complaint for contraventions within HELICOL S.A., the Government states that the enterprise denies the existence of such a complaint.
  49. 516. Regarding subparagraph (i) of the recommendations concerning the refusal by AEROREPUBLICA S.A. to bargain collectively, the Government notes that in accordance with the information from AEROREPUBLICA S.A., it was the pilots and co-pilots appointed as negotiators by the trade union who adopted an unyielding position towards reaching agreements. The enterprise states that to date they have complied with the requirements for carrying out the various negotiations, that the last of these was resolved when the Arbitration Tribunal called before the Ministry of Social Protection by the parties, handed down a judgement on 9 February 2005, which was ratified by the Supreme Court of Justice, Chamber of Labour Cassation.
  50. 517. Regarding the legal cases brought by Captain Juan Manuel Vega, Captain Alfonso Pinzón, Captain Héctor Vargas and Captain Gonzalo Andrés Arboleda, and the appeals for protection lodged by Martha Aguilar, Sandra Anzola, Stella Hoyos, Adriana Morales and Claudia María Escobar, the enterprise states that it has complied with the rulings made by the various judicial and administrative bodies.
  51. 518. In this way, regarding the case of Captain David Restrepo Montoya, the employment contract of this crew member was terminated by a unilateral decision of AEROREPUBLICA S.A., which is why the appropriate amount of compensation due in law was paid. Captain Restrepo lodged a complaint against AEROREPUBLICA S.A. with the Territorial Directorate of Antioquia, which was closed by order of 28 April 2004 because the enterprise was considered to have acted in accordance with the current labour legislation.
  52. 519. Regarding Captain Jaime Patiño and Captain Andrés Luna, the enterprise notes that their employment contracts were terminated by a unilateral decision by AEROREPUBLICA S.A., which is why compensation was paid, in accordance with the law.
  53. 520. Regarding Captain Roberto Ballén Bautista, the Government states that AEROREPUBLICA S.A. brought a labour case to lift his immunity to end the employment contract with just cause, because he had refused to renew his co-pilot’s licence with the Colombian Civil Aviation, which prevented him from performing his duties.
  54. 521. The Government adds that the Territorial Directorate of Cundinamarca of the Ministry of Social Protection completed an administrative labour investigation into AEROREPUBLICA S.A. for trade union discrimination, issuing resolution No. 3923 of 11 October 2004 sanctioning the enterprise. The enterprise has lodged appeals against this decision which are ongoing.
  55. 522. In its communication of 1 August 2006, the Government reports that with regard to the method of offering workers greater benefits than those established in the collective labour agreement, the Substantive Labour Code establishes in article 470 that “collective agreements between employers and trade unions whose number of members is not more than one-third of the total workforce of the enterprise are only applicable to the members of the signing trade union and to those who sign up to them or join the union at a later date”. When that is not the case, it is fair to grant additional benefits to non-affiliated workers.
  56. 523. In this way, because SINTRAVA did not fulfil the condition required in the aforementioned provision on the date it subscribed to the collective labour agreement, the non-unionized workers of AVIANCA S.A. legally obtained membership of a (non-union) collective accord valid from 1 July 2002 until 30 June 2004. Because the number of union members increased, the accord lost its validity in mid-2004, in accordance with the provisions of article 70 of Act No. 50 of 1990 which provides that “when the union or unions have a membership greater than one-third of the workforce of an enterprise, the enterprise cannot sign (non-union) collective accords or prolong those that are already in force”.
  57. 524. However, in light of this, some workers told the company that they would like to retain or increase the benefits that they had and, because it was legally impossible to do this and they did not want to pursue them through the trade unions, the enterprise decided to offer all its collaborators, unionized or not, a package of benefits that came into force in January 2005.
  58. 525. The Government denies that it has used a strategy of offering more economic benefits than in the agreement to encourage workers to leave the trade union, because there is no exclusion condition in the “voluntary benefits plan”, it is in clause 1 of the 2002-04 collective labour agreement. This is still in force as it was not modified by the agreement signed with trade unions on 3 September 2005 that provides that the provisions of the current agreement become obligatory clauses and an integral part of each worker’s individual employment contract and all those signed during its validity period. As a result, any agreement between the enterprise and its workers contradicting this agreement is nullified and the provisions will supersede these agreements. This nullification can be invoked at any time by any of the contracting parties.
  59. 526. The Government adds that between January 2005 and April 2006, a period during which the voluntary benefits plan was in force, trade union membership has not shown any significant decline that could be attributed to this plan.
  60. 527. Lastly, regarding the allegations of offering voluntary retirement to the trade union officials, the Government emphasizes that this was not a policy of anti-union discrimination as labour relationships have been terminated over the past two years affecting both unionized and non-unionized workers by mutual agreement and without any reprisals. It adds that, where the conciliatory agreement is refused, no worker is subject to reprisals.
  61. 528. Regarding the new allegations presented by the Colombian Association of Aviation Mechanics (ACMA), in its communication of 1 August 2006, the Government reports that in 2003, having been unable to overcome its difficult economic situation, which had been critical since 1993, AVIANCA S.A. requested the Ministry of Social Protection for the authorization for the collective dismissal of 1,351 workers. In a communication of 8 September 2003, after carrying out another analysis, the company modified its request as regards the number of people and reduced its request from 1,351 to 1,084, this request was given to the ministerial body with detailed and in-depth analysis. In resolution No. 1789 of 31 October 2003, the Atlantic Territorial Director of the Ministry of Social Protection authorized AVIANCA S.A. to dismiss 350 workers.
  62. 529. The Colombian Association of Civil Aviators (ACDAC), the National Union of Transport Industry Workers (SINDITRA), the Colombian Association of Aviation Mechanics (ACMA), the Colombian Association of Flight Engineers (ACDIV) and the National Union of Employees of AVIANCA (SINTRAVA) legally appealed against the aforementioned administrative act. In resolution No. 0187 of 23 February 2004, the Ministry of Social Protection, Atlantic Territorial Directorate, confirmed resolution No. 1789 in all its terms. Of the 350 dismissals authorized by the Ministry, only 46 were carried out. The Government highlights that these dismissals affected both unionized and non-unionized workers, thus showing that there is no discrimination towards unionized workers by the enterprise. From these figures it is important to note that of the total of 46 dismissals, only two members of ACMA were affected.
  63. 530. The Government adds that during its delicate and increasingly critical economic situation and because it needed to increase its income, in 1996 the company created a system of recruitment called “revised contract”, which aimed to increase the productivity of the maintenance technicians through a payment system giving them immediate and medium-term benefits. These benefits included: increasing their income; improving cash flow by increasing monthly pay instead of periodic quarterly or annual payments; professional growth through rapid promotion as soon as requirements are met, without the need for a vacancy; greater productivity by increasing working hours from 42 to 48 hours per week in return for increased wages – which should be distinguished from interpretations giving impression that they are paid more for doing the same; continuing efforts were also made to improve the organizational climate, encourage professional development and seek ways to improve training and to encourage commitment to the enterprise. The offer of this system of recruitment was made not only to unionized workers, but also to non-unionized workers, showing therefore the company’s interest in giving benefits to all the technicians in the enterprise. This had not been possible for the unionized workers through a conventional agreement, which made implementing this payment model necessary. Rather than using a conventional agreement, individual agreements with certain workers were used instead, which were not always reflected in the trade union’s decisions, for the reasons mentioned, as the convention had not been successfully modified, they remained bound to their decisions because that same convention prevents an agreement in those terms. The provisions of clause 1 of the 1994-96 convention, which is still in force, establish that “any agreement between the enterprise and its workers contradicting the convention and its provisions is null and the provisions of the convention automatically supersede such agreements”. Therefore, those workers who were interested in this payment model were given full freedom to join this recruitment system.
  64. 531. Faced with the termination of an employment contract, the Government specifies that retirement cannot be considered as a repressive measure or similar. The enterprise, in accordance with the collective labour agreement, could retire its workers directly, as long as all the requirements listed were fulfilled. This benefit was available for all the workers covered by the collective agreement. If they were not covered, there was a retirement plan. As far as possible, the company planned not to abandon its workers and guaranteed their income even when the employment relationship was terminated until they received their pension from the Social Security Institute. This practice is no longer possible due to the recent amendment to the national Constitution in article 48 of Legislative Act No. 1 of 2005 which prevents the enterprise from recognizing early retirements.
  65. 532. Regarding the statement from the trade union about pressure on workers to opt for the “revised contract” model, because they first had to agree to the severance pay regime in Act No. 50 of 1990, presented as obligatory and not in the interests of workers, the Government reports that workers voluntarily agreed to the company’s offer and that there are currently 1,700 people in the company protected by Act No. 50 of 1990, which demonstrates the benefits of the change in regime. Also there are still workers on the old regime which proves that there was no pressure on workers in this or any other sense.
  66. 533. Regarding the allegations that the enterprise discriminates against members of trade unions when dismissing workers for economic reasons, it is important to note that when the retirement statistics of some members of the Colombian Association of Aviation Mechanics (ACMA) union from 1996 until 2005 was revised, it showed that only three people had been dismissed without just cause, including those affected by the collective dismissal in 2004. This shows that the enterprise has not discriminated against members of ACMA in particular or against any trade union members in general. On the contrary, when forced by its financial situation to take extreme measures, the enterprise has always done so using legal methods and guaranteeing the rights of its workers. This has not only affected unionized workers, but also non-unionized workers. The trade union does not clarify the relationship to the reinstatement of the executive board, particularly the relationship to workers who withdrew from ACMA.
  67. 534. Regarding the trade union’s participation in the 1996 collective bargaining, the Government reports that in accordance with the Colombian legislation at the time, where several unions existed in an enterprise, the professional unions could negotiate directly when they fulfilled the legal requirements, that is, having membership totalling 75 per cent of the workers in the same profession working for the enterprise in 1996 and subsequent years; alternatively, if they did not fulfil this condition they could be represented at the negotiating table by the negotiating committee which would be formed by the majority union of workers in the enterprise, as stated in article 357 of the Substantive Labour Code, which at the time had not been overturned by ruling C-567 of 2000.
  68. 535. Article 357 of the Substantive Labour Code now provides that: “when a general trade union coexists with a professional or industry trade union in one enterprise, workers will be represented for all matters of collective recruitment by the union containing the majority of workers in the enterprise”.
  69. 536. This means that until 2000, ACMA was represented in the negotiations either jointly, if none of the unions had a majority, or by the majority union, and that since 2000 it has always been able to represent itself directly. These situations, generally all internal to the trade union, show that it is not legally the responsibility of the enterprise if ACMA has not been involved in the negotiations since 1996 and still less in 2002 when the 2002-04 collective agreement was signed.
  70. 537. It is therefore important to note that in the early negotiations in 2002 when the collective agreement was signed, the company complied with its legal obligations and brought forward the proceedings for the collective labour dispute resulting from the denouncement of the collective agreement and the subsequent presentation of the list of demands by the trade unions; in so doing it observed its duties and complied with the legal terms provided for that effect, and this is clearly shown in the fact that the appeal for protection taken against the enterprise by ACMA for violation of their fundamental rights was not upheld, something which ACMA acknowledges and accepts in it allegations. It is important to note that ACMA’s allegations contain evidence of a conflict between trade unions which has nothing to do with the enterprise.

D. The Committee’s conclusions

D. The Committee’s conclusions
  1. 538. The Committee recalls that this case refers to a number of acts of anti-union discrimination in several aviation enterprises. Firstly, the Committee takes note of the information provided by the Government regarding the fact that the enterprise unit between AVIANCA-SAM and HELICOL S.A. had been declared not to exist and, as a result, the allegations regarding each of them will be dealt with separately.
  2. AVIANCA S.A. enterprise
  3. 539. As regards subparagraph (a) of the Committee’s recommendations regarding the collective dismissal of workers affiliated to the National Union of Employees of AVIANCA (SINTRAVA) and their replacement by workers in cooperatives, the Committee notes that, according to the Government, none of the dismissed workers has been re-hired by the enterprise through a cooperative. The Committee also notes that according to the Government, the Ministry of Social Protection does not have the jurisdiction to launch an investigation into the recruitment of cooperatives into AVIANCA S.A. unless there has been an allegation of trade union persecution, and highlights that in accordance with article 33 of the Political Constitution they have economic freedom to hire staff as long as the rights of workers are respected. The Committee observes that the allegations do indeed, in these circumstances, refer to anti-union discrimination manifested in the collective dismissal of workers and their replacement by workers in cooperatives who cannot join or form a trade union, a denial of rights which would constitute a clear violation of Conventions Nos. 87 and 98. The Committee again recalls the principles contained in Article 2 of Convention No. 87 and reiterates its request for the Government to take the necessary measures to carry out an impartial investigation in order to ascertain whether the dismissed workers were in fact replaced by others from cooperatives or other companies to do the same work; and to determine whether these new workers have freedom of association rights and, if that is not the case, to take steps to ensure full respect for freedom of association for these workers in line with the principles mentioned above and to reinstate those workers that may have been subject to anti-union discrimination and, if reinstatement is not possible, to ensure that they are fully compensated. The Committee requests the Government to keep it informed in this regard.
  4. 540. As regards subparagraph (b) of the recommendations on the allegations of threats against unionized workers in Cali by the United Self-Defence Forces of Colombia (AUC), in accordance with the Government’s request, the Committee requests SINTRAVA to provide the names of the people who have been threatened and more information about the circumstances of the threats, so that more information can be requested from the relevant authorities.
  5. 541. As regards subparagraph (c) of the recommendations on the adoption by the company of new internal regulations without consulting the trade union, the Committee notes that, according to the Government, on 16 May 2003, the enterprise AVIANCA S.A. requested the approval of the Ministry of Social Protection for the internal labour regulations and that after a number of articles were objected to, decisions which were appealed by the enterprise, the regulations were approved on 25 September 2003 through resolution No. 00386 as it then complied with the legal requirements. SINTRAVA was notified of this resolution. The Committee notes this information, but emphasizes the importance that should be attached to full and frank consultation taking place on any questions of mutual interest, and regrets that the enterprise did not consult the trade unions during the process of drawing up the aforementioned regulations, given that its provisions would affect working conditions, and hopes that it will do so in future.
  6. 542. As regards the new allegations presented by SINTRAVA referring to the offer of greater benefits to individual workers than those established in the collective agreement and the offer of voluntary retirement to union officials immediately after signing an agreement between the trade union and the enterprise on 3 September 2005, the Committee notes the Government’s observations that the offers of collective retirement are voluntary and are made to both unionized and non-unionized workers and that rejecting them does not lead to any kind of retaliation. Regarding the offer of benefits to individual workers, the Government states that, in accordance with the Substantive Labour Code, when a trade union does not comprise more than one-third of the employees in the enterprise, the collective agreement only applies to members of the union and therefore, there is a possibility to make agreements with the non-unionized workers (who are not covered by the collective agreement) about certain additional benefits by signing a (non-union) collective accord. In this regard, the Committee again recalls, as it has done in other cases from Colombia with similar allegations “that the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98 and that direct negotiation with the workers must not be used to undermine the position of the trade unions” [see 324th Report, Case No. 1973, and 325th Report, Case No. 2068 (Colombia)]. Therefore, the Committee requests the Government to take the necessary measures to ensure that no (non-union) collective accords with non-unionized workers are signed that would undermine the collective bargaining process and the collective agreements in the AVIANCA S.A. enterprise. The Committee however notes that, according to the Government, in mid-2004, this collective accord with non-unionized workers ceased to apply because the number of trade union members increased to more than one-third of the workers in the enterprise. The enterprise then decided to offer all its workers, unionized or not, a package of benefits that came into force in January 2005.
  7. 543. As regards the allegations presented by the Colombian Association of Aviation Mechanics (ACMA) referring to: pressure by AVIANCA S.A. since 1995 on unionized workers to leave the company, the process of collective dismissals which began in 1996 and the compulsory retirement of workers; the pressure on workers who remained with the enterprise to renounce the collective agreement and the refusal of the enterprise to bargain collectively since 2002, the Committee notes the information from the Government. According to this, AVIANCA S.A. requested the Ministry of Social Protection for the authorization for the collective dismissal of 1,351 workers, and received authorization from the Ministry of Social Protection to dismiss 350 workers for economic reasons through resolution No. 1789; the trade unions in the enterprise lodged appeals; through resolution No. 0187 of 23 February, the Ministry of Social Protection, Atlantic Territorial Directorate, confirmed all the terms of resolution No. 1789. The Committee regrets, however, that, according to the Government’s observations, the enterprise offered the new system of recruitment (“revised contract”) in contradiction of the provisions of the collective agreement and highlights the importance it gives to respecting signed collective agreements. The Committee notes that, according to the Government, of the 350 dismissals authorized by the Ministry, only 46 were carried out, affecting both unionized and non-unionized workers, and of these only two were members of ACMA. Regarding ACMA’s allegations of hiring workers through cooperatives, who then cannot join trade unions, the Committee has already dealt with these allegations above.
  8. 544. As regards the refusal to bargain collectively with the trade union since 2000, the Committee notes that, according to the Government, the enterprise has negotiated and signed collective agreements, but with a different trade union, because ACMA is not the most representative.
  9. HELICOL S.A. enterprise
  10. 545. As regards subparagraph (d) of the recommendations about the allegations made by Colombian Association of Civil Aviators (ACDAC) concerning the violation by HELICOL S.A. of the signed collective agreement, the Committee notes that, according to the Government, the Territorial Directorate of Cundinamarca, through its inspections, has sanctioned HELICOL S.A. and AEROREPUBLICA S.A. for violating the collective labour agreement, in accordance with the provisions of resolutions Nos. 2410 of 25 June 2004, 3702 of 28 September 2004 and 3923 of 11 October 2004.
  11. 546. As regards subparagraph (e) of the recommendations referring to the allegations that the Government is not updating salaries in accordance with the provisions of the collective agreement, the Committee recalls that the Government reported during the previous examination of the case that this was due to the fact that the complainant had decided not to denounce the collective agreement, which meant that wages were maintained at the level outlined in the agreement still in force. The Committee also recalls that it had requested the Government and the complainant to clarify whether, with regard to updating salaries, the collective agreement had been formally denounced, whether an impartial arbitration tribunal had actually been nominated and, if so, whether this decision had been rescinded, and whether the complainant had appealed against that decision. The Committee notes that according to the Government, the collective agreement was denounced, the parties were ordered to turn to direct settlement through resolution No. 0003794 of 4 October 2004, a decision which was appealed by the enterprise and, as no agreement has yet been reached, the Territorial Directorate of Cundinamarca should appoint an arbitration tribunal. The Committee requests the Government to keep it informed of the final development of this dispute.
  12. 547. As regards subparagraph (f) of the recommendations on the allegations regarding pressure on HELICOL S.A. workers to leave their union and sign a (non-union) collective accord, the Committee notes that the Government, based on reports submitted by the enterprise, states that those who left the union did so before the collective accord was planned and drawn up and denies that there has been any pressure on workers to leave the union.
  13. 548. As regards the signature of the (non-union) collective accord in particular, the Committee notes that, according to the Government, HELICOL S.A. and the vast majority of its workers did indeed sign a non-union collective labour accord, which was negotiated not only with pilots and co-pilots but with all the company’s employees, bringing together both their expectations and the needs of the enterprise, in accordance with articles 481 and ff. of the Substantive Labour Code. The Committee also notes that, according to the Government, in response to an appeal lodged by the unionized workers, the judicial authority ordered that the same working conditions be given to unionized and non-unionized workers to give the latter the benefits granted in the non-union collective accord. The Committee also notes that, according to the new allegations presented by ACDAC, unionized pilots are still being discriminated against, with regards to the benefits given to non-unionized pilots. In this regard, the Committee refers to the principles on signing non-union collective accords, as laid out in previous paragraphs, and requests the Government to take the necessary measures to guarantee that the trade union is free to negotiate, that workers (unionized or not) are not pressurized into accepting a collective accord against their will and that, in accordance with what has been established by the judicial authority, the signing of a collective accord with non-unionized workers does not undermine the rights of the unionized workers.
  14. 549. As regards subparagraph (g) of the recommendations which refers to the allegations of the dismissal of 15 HELICOL S.A. pilots, of whom one had trade union immunity, another had protection from dismissal as a negotiator of the list of demands, a third had reported contraventions within the company, and the others were forced to accept voluntary retirement, the Committee recalls that it had requested the Government to report on whether judicial authorization had been sought before the dismissal of the union official with trade union immunity, whether the appointment of the negotiator was considered irregular by the judicial authority, and whether the 15 dismissed pilots had taken any legal proceedings.
  15. 550. The Committee notes that according to the Government, the dismissal of Captain Leonardo Muñoz Olea took place when he was no longer a negotiator of the list of demands and so did not have trade union immunity, as the trade union had decided in September 2003 to extend the collective agreement until 31 March 2004, meaning that there was no negotiation and so the denouncements of the agreements presented by the union and the enterprise as well as the appointment of the union’s negotiating committee were left without effect. The Committee notes that according to the Government, on 14 April 2004, the enterprise decided to dismiss Captain Muñoz Olea without just cause, complying with the legal requirements and that the union only notified the enterprise of Captain Muñoz Olea’s appointment as a member of a new negotiating committee on 22 April. The Committee also notes that, according to the Government, the Captain did not request authorities for union immunity within the two-month deadline, as required by the law.
  16. 551. As regards Mr. Néstor Morales Léon, the Committee notes that, according to the Government, his employment contract was terminated on 22 August 2003 because he had retired and begun drawing his pension. The Committee notes that the appeal for reinstatement brought by the worker, because of his union immunity as a member of the demands committee, was rejected by the judicial authority who denied that he had union immunity. This decision was confirmed by the Labour Decision Chamber of the Bogotá Legal District Tribunal in a ruling on 17 June 2005.
  17. 552. As regards the dismissal of Mr. Gerardo Sánchez for making a criminal complaint against the enterprise, the Committee notes that, according to the Government, the enterprise does not know of any such complaint and that Mr. Sánchez’s contract was terminated on 14 April 2004, without just cause and with payment of the corresponding compensation, with no legal or an administrative appeal of any kind from the worker. The Committee observes that the Government has not provided any information on whether the other 12 dismissed pilots (forced to sign up to a voluntary retirement plan) have brought any legal action and requests it to do so without delay.
  18. 553. As regards subparagraph (h) of the recommendations concerning the failure to respect the trade union immunity of Captain Juan Manuel Oliveros, the Committee recalls that, in view of the vague wording of the allegation, it had requested the complainant for specification. The Committee regrets that it has not received any clarification from the complainant. As a result, it will not continue examining this allegation.
  19. 554. As regards the new allegations presented by ACDAC regarding the unilateral fixing of one day per week for exercising trade union activities and the rescheduling of all the flights of Mr. Orlando Cantilo, a member of the executive board, the Committee regrets that the Government has not sent its observations on the matter and requests it to do so without delay.
  20. AEROREPUBLICA S.A. enterprise
  21. 555. As regards subparagraph (i) of the recommendations regarding the allegations of the refusal by AEROREPUBLICA S.A. to bargain collectively and the dismissals and sanctions of trade union officials for exercising their rights, the Committee notes that, according to the Government, the enterprise states that it has complied with the requirements for carrying out the various negotiations, and that the last negotiations concluded with the ruling of the Arbitration Tribunal called before the Ministry of Social Protection by the parties on 9 February 2005, which was ratified by the Chamber of Labour Cassation of the Supreme Court of Justice.
  22. 556. As regards the dismissals and sanctions of trade union officials for exercising their rights, the Committee notes that according to the Government, the enterprise states that it has complied with the rulings made by the various judicial and administrative bodies. The Committee notes that in the case of Captain David Restrepo Montoya, whose contract was terminated by a unilateral decision of AEROREPUBLICA S.A., the Territorial Directorate of Antioquía closed the case brought by the worker by order of 28 April 2004, because the enterprise was considered to have acted in accordance with the current labour legislation. Regarding Captain Jaime Patiño and Captain Andrés Luna, the enterprise states that their employment contracts were terminated by a unilateral decision of AEROREPUBLICA S.A. which is why the compensation was paid, in accordance with the law. With regard to Captain Roberto Ballén Bautista, the Committee notes that: (1) the enterprise brought a labour case to lift his immunity to end the employment contract with just cause as he had refused to renew his co-pilot’s licence with Colombian Civil Aviation; (2) since that date, the enterprise has not been able to make use of his services; and (3) that the judicial authority authorized the lifting of his immunity but the trade union appealed this decision. The Committee also notes that, according to the Government, the Territorial Directorate of Cundinamarca of the Ministry of Social Protection completed an administrative labour investigation into AEROREPUBLICA S.A. for trade union discrimination, issuing resolution No. 3923 of 11 October 2004 sanctioning the enterprise; the enterprise has lodged appeals against this decision which are ongoing. The Committee requests the Government to inform it of all the judicial appeals against dismissals and to keep it informed of ongoing judicial appeals.

The Committee's recommendations

The Committee's recommendations
  1. 557. In light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
    • AVIANCA S.A. enterprise
      • (a) The Committee reiterates its request for the Government to take the necessary measures to carry out an impartial investigation in order to ascertain whether the workers dismissed from AVIANCA S.A. were in fact replaced by others from cooperatives or other companies, to do the same work; and to determine whether these new workers have freedom of association rights and, if that is not the case, to take steps to ensure full respect for freedom of association for these workers in line with the principles mentioned above and reinstate those workers that may have been subject to anti-union discrimination and, if reinstatement is not possible, to ensure that they are fully compensated. The Committee requests the Government to keep it informed in this regard.
      • (b) As regards the allegations of threats against AVIANCA S.A.’s unionized workers in Cali by the United Self-Defence Forces of Colombia (AUC), the Committee requests the National Union of Employees of AVIANCA (SINTRAVA) to provide the names of the people who have been threatened and more information about the circumstances of the threats, so that more information can be requested from the relevant authorities.
      • (c) As regards the new allegations presented by SINTRAVA regarding the offer of greater benefits to individual workers than those established in the collective agreement, the Committee requests the Government to take the necessary measures to ensure that it does not sign (non-union) collective accords which harm the collective bargaining process and the collective agreements in the AVIANCA S.A. enterprise.
    • HELICOL S.A. enterprise
      • (d) As regards the allegations of the refusal of HELICOL S.A. to update salaries in accordance with the provisions of the collective agreement, and the pending decision on the appointment of an arbitration tribunal, the Committee requests the Government to keep it informed of the final development of this dispute.
      • (e) As regards the allegations of pressure on HELICOL S.A. workers to leave their union and sign a non-union collective accord, the Committee requests the Government to take the necessary measures to guarantee that the trade union is free to negotiate, that workers are not pressurized into accepting a collective accord against their will and that, in accordance with what has been established by the judicial authority, the signing of a collective accord with non-unionized workers does not undermine the rights of the unionized workers.
      • (f) As regards the allegations of the dismissal of 15 HELICOL S.A. pilots, the Committee, while noting that the Government refers to three of them, requests it to provide information as to whether the other 12 dismissed pilots, forced to sign up to a voluntary retirement plan, have brought any legal action on the matter.
      • (g) As regards the new allegations presented by the Colombian Association of Civil Aviators (ACDAC) of HELICOL S.A.’s unilateral fixing of one day per week for exercising trade union activities and the rescheduling of all the flights of Mr. Orlando Cantilo, a member of the executive board, the Committee requests the Government to submit its observation on this regard.
    • AEROREPUBLICA S.A.
      • (h) As regards the allegations of the refusal by the company AEROREPUBLICA S.A. to bargain collectively and the dismissals and sanctions of trade union officials for exercising their rights, the Committee requests the Government to inform it of all the judicial appeals against dismissals and to keep it informed of ongoing judicial appeals.
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