Interim Report - Report No 350, June 2008

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

Allegations: Anti-union dismissals in the context of restructuring beginning in March 2004 within the AVIANCA-SAM-HELICOL group of companies; rehiring of dismissed workers through labour cooperatives, depriving them of coverage under the collective agreement with the company group, threats against trade union officials, failure to comply with the collective agreements, 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

1. 350. The Committee last examined this case at its November 2006 meeting [see 343rd Report, paras 484–557 adopted by the Governing Body during its 297th meeting]. The Colombian Association of Civil Aviators (ACDAC) submitted new allegations in communications dated 17, 18, 28 and 31 May and 4 September 2007. The Colombian Association of Flight Attendants (ACAV) submitted new allegations in a communication dated 4 June 2007. The National Union of Employees of AVIANCA (SINTRAVA) submitted new allegations in a communication dated 24 October 2007.
2. 351. The Government sent its observations in communications dated 21 March, 7, 19 and 20 December 2007, 11 March and 15 May 2008.
3. 352. 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. 353. In its November 2006 session, the Committee made the following recommendations [see 343rd Report, para. 557]:
2. AVIANCA SA enterprise
3. (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 SA 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.
4. (b) As regards the allegations of threats against AVIANCA SA’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.
5. (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 SA enterprise.
6. HELICOL SA
7. (d) As regards the allegations of the refusal by HELICOL SA 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.
8. (e) As regards the allegations of pressure on HELICOL SA 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.
9. (f) As regards the allegations of the dismissal of 15 HELICOL SA 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.
10. (g) As regards the new allegations presented by the Columbian Association of Civil Aviators (ACDAC) of HELICOL SA’s unilateral fixing of one day per week for exercising trade union activities and the rescheduling of all the flights of Mr Orlando Cantillo, a member of the executive board, the Committee requests the Government to submit its observations in this regard.
11. AEROREPUBLICA SA
12. (h) As regards the allegations of the refusal by the company AEROREPUBLICA SA 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.
13. B. New allegations
14. 354. In its communications of 4 June 2007, ACAV alleges that AVIANCA SA currently enters independently into a voluntary benefits plan with newly hired flight attendants, ignoring the trade union, despite the fact that it represents 40.58 per cent of employees. Indeed, the company employs 956 flight attendants, of which 388 are union members. This means that the Substantive Labour Code, article 471, should apply, whereby the company cannot extend benefits not provided for in the agreement with workers when over one third of employees are union members. The union alleges that the company requires flight attendants to accede to a voluntary benefits plan as a precondition for signing the employment contract, with the result that these workers cannot then join the union. The company has also offered employees higher wages in return for withdrawing from the union. The union has filed suits against the Ministry for Social Protection, in regard to which rulings are still pending.
15. 355. The complainant organization alleges non-compliance by the company with the current collective agreement: (a) numerous disciplinary proceedings initiated against the union which disregard clauses 6 and 8 of the agreement, relating to disciplinary proceedings and to the issuance of summons prior to dismissal of several workers. The complainant organizations filed a suit against the Ministry for Social Protection in regard to which no ruling has been forthcoming; (b) the company disregards the trade union leaves of absence agreed in clauses 144 and 145 of the collective agreement. A tutela action submitted in regard to Mr Julio Pinzon was refused. The case is currently pending before the Constitutional Court; (c) on 15 May 2006, AVIANCA-SAM informed SAM flight attendants and pursers, based in Medellín, that they were to be transferred to other bases without giving them time to enrol, and without respecting seniority. In regard to the administrative proceedings initiated by ACAV, the Ministry for Social Protection decided that this matter should be resolved by the judicial authority, if the parties so desired.
16. 356. In its communications of 17, 18, 28 and 31 May 2007, ACDAC makes the following allegations.
17. 357. In regard to the company AVIANCA and SAM, the ACDAC states that it had 492 members at the time of submission of the complaint in 2004, but that by January 2005 the union had 214 members in AVIANCA and 111 in SAM. During the course of 2005, 214 AVIANCA members and 80 SAM members withdrew from the union. By 2007, ACDAC had 176 members in AVIANCA and only 31 in SAM. ACDAC states that, in 2005, it filed tutela actions against AVIANCA-SAM-HELICOL in connection with persecution and wage discrimination, but withdrew the actions against AVIANCA and SAM that same year in response to pressure. Subsequently, persecution has increased, with the dismissal of captains Carlos Quintero and Santiago Escobar; the collective agreement is ignored and deductions for agreement-based benefits are not made, notwithstanding the fact that the collective agreement covers all employees. Lastly, the complainant organization alleges that, on 21 April 2004, the internal employment regulation for AVIANCA SA was approved in Ministry for Social Protection resolution No. 0386, but the union was not notified. In December 2005, cancellation of this resolution was requested, but no decision has yet been handed down.
18. 358. In regard to HELICOL SA, the complainant organization alleges that:
19. – As regards allegations relating to HELICOL SA’s refusal to raise salaries in keeping with the provisions of the collective agreement, and the pending decision regarding the appointment of an arbitration tribunal, the union states that the Ministry for Social Protection, in resolutions No. 003794 of 4 October 2004, No. 0000351 of 26 October 2005 and No. 00001144 of 31 May 2006, threatened to negotiate the list of demands submitted by ACDAC. However, the complainant organization claims that the company ignored the acquired rights emanating from the agreement previously in force, in response to which the complainant organization submitted a further administrative complaint.
20. – The company further refused to update wages in keeping with the provisions of the collective agreement. In response to a tutela action brought before the Twenty-Fifth Criminal Court of the Bogotá Circuit, the judge ruled that discrimination existed between non-unionized employees whose wages had been increased and unionized workers who had received no increase. The judge further ruled that, in this manner, the company encouraged employees to withdraw from the union. Despite the ruling, the company continues to discriminate against employees belonging to ACDAC. The subsequent contempt action has been shelved.
21. – As regards allegations of pressure exerted on HELICOL SA’s employees to withdraw from the union and sign a collective agreement, the complainant organization states that such pressure continues.
22. – As regards allegations concerning the dismissal of 15 pilots, the complainant organization attests that the 12 pilots forced to accept the voluntary retirement plan have initiated proceedings to require compliance with the rights they have acquired under the collective agreement.
23. – As regards ACDAC executive board member Captain Orlando Cantillo’s trade union leave of absence, the complainant organization states that HELICOL SA does not recognize trade unions leaves of absence or corresponding payment of salary, as provided for in the collective agreement. According to the complainant organization, the company claims that the collective agreement does not apply because, since December 2003, AVIANCA-SAM and HELICOL have ceased to be a single company, for which reason the collective agreement adopted in AVIANCA is no longer applicable. Nonetheless, the company recognized two days of leave of absence per month. An administrative complaint has been lodged with the Twelfth Labour Inspectorate, but no recognition has yet been issued regarding salary payment and no leaves of absence have been granted.
24. 359. As regards the company AEROREPUBLICA SA, in connection with allegations concerning the company’s refusal to bargain collectively, and the dismissal of, and sanctions against, trade union leaders for exercising their rights, ACDAC states that the company’s refusal to negotiate is illustrated by the issuance of four arbitral rulings and the dismissal of several negotiators, namely Juan Manuel Vega León, Héctor Vargas and Roberto Ballén. It states that Mr Vega León was dismissed for the second time, despite enjoying trade union immunity, on 13 November 2004. On 4 August 2006, the Ninth Circuit Labour Court ordered that he be reinstated with payment of wages but, on 30 November, the District Court revoked the previous decision, as a result of which a tutela action was brought, but subsequently denied. The appeal against this decision is currently awaiting a ruling by the Criminal Chamber of the Supreme Court of Justice. As regards Mr Vargas, judicial proceedings are pending before the Ninth Labour Court of the circuit. The ACDAC adds that Mr Gonzaléz Arboleda Bonett was dismissed at the height of the collective bargaining process.
25. 360. The complainant organization states that the company Vertical de Aviación SA is failing to comply with the collective agreements currently in force in the company (it has reduced the wages of pilots and co-pilots, it has disregarded agreed increases, it does not pay food and land transport allowances, or the security bonus, or provide uniforms, among other instances of non-compliance), refuses to negotiate a list of demands and does not apply the established procedures for dismissals, promotions and transfers; it forces pilots to sign documents disavowing rights deriving from the collective agreement, on pain of dismissal; it refuses to grant trade union leave of absence to members of the union’s executive board. The complainant organization submitted an administrative complaint to the Ministry for Social Protection in early 2006, in regard to which no decision has as yet been forthcoming. The complainant organization further alleges denial of trade union leave of absence to Mr Carlos Pérez, member of the ACDAC executive board.
26. 361. In its communication of 24 October 2007, SINTRAVA states, as regards subparagraph (a) of the recommendations, regarding an investigation 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 and whether these new workers had trade union rights, that such investigation has not yet been carried out and that workers belonging to cooperatives cannot join a trade union. SINTRAVA further states that internal employment regulations have been drafted without union participation.
27. 362. It adds that, despite the fact that SINTRAVA represents over one third of employees, and although no collective agreements have been adopted since 2004, the company offers higher benefits to non-unionized employees, in a disguised manner, which discourages membership. The trade union states that the company does not comply with the current collective agreement, in particular with reference to granting agreement-based benefits such as tickets, denies trade union leaves of absence, discriminates against some trade union leaders and imposes penalties on them for exercising their trade union rights. In this connection, it states that:
28. – applications have been submitted to remove the trade union immunity of some employees, including Almarildo Maldonado Piñeros, Alfredo Pareja Vitoria, Oswaldo Banco Ibarra, Enoc Arenas, Héctor Aristizabal Toro and Otoniel García;
29. – the following were penalized with one day’s suspension for engaging in a protest in the city of Rionegro: Jorge Isaac Loaiza, Miriam Noreña, Luis Humberto Lizarazo, Fabio Vásquez, Antonio Zapata, Héctor Aristizabal Toro, Manuel Fernando Medina Hurtado, Nohora Florez, Margarita Gallego, Rodrigo Antonio Alvarez Restrepo, Jaime Marín Quintero, Reynaldo José Gallego Castro and Juan Bautista Caro.
30. 363. The following employees were dismissed for joining the trade union: Liliana Giraldo and Gloria Giovanni Giraldo, Claudia Marcela Villa and Ihonaira Díaz.
31. 364. Agreement-based benefits were denied to Fernando Torres Navas and Ruby Valderrama.
32. C. The Government’s reply
33. 365. In its communications dated 21 March, 7, 19 and 20 December 2007, 11 March and 15 May 2008, the Government states the following.
34. Reply regarding the company AVIANCA-SAM
35. 366. In regard to subparagraph (a) of the recommendations, the Government indicates that the Atlantic Territorial Directorate has initiated an administrative labour investigation against AVIANCA with a view to investigating the alleged hiring of employees of cooperatives after authorizing collective dismissal. The Territorial Directorate imposed a penalty on the company of ten current legal minimum wages (resolution No. 001134 of 19 October 2005), totalling three million, eight hundred and fifteen (3,815,000) pesos. This resolution was revoked by resolution No. 000221, of 7 March 2007, which ruled that the parties should apply to the Labour Tribunal to settle this matter. A copy of these resolutions is appended.
36. 367. The Government states that, pursuant to Act No. 79/88, associated labour cooperatives are founded on the principle of solidarity between members (the principle that does not exist in the employment contract) with members also being owners, and consequently there would be no reason to establish workers’ organizations.
37. 368. As regards subparagraph (b) of the recommendations, the Government is awaiting the information to be submitted by the trade union, on which basis it will proceed.
38. 369. As regards subparagraph (c) of the recommendation, the Government suggests that extensive case law exists to demonstrate equality between collective accords and agreements, such as ruling SU-342 of 1995. Constitutional Court Judge Antonio Barrera Carbonell ruled:
39. … the Chamber is of the view that employers’ freedom to enter into collective accords that coexist with collective agreements, when this is permitted by the above specifications, is by the same token constrained by constitutional norms. Indeed, the fact that employers are bound by the Constitution does not emanate solely from the Constitution, articles 1, 4 subparagraph 2 and 95, and not only as regards the obligation to abide by and adhere to the duties of respecting the rights of others and not abusing one’s own rights, to work in conformity with the principle of social solidarity, to defend human rights and to contribute to the achievement and maintenance of peace, which is achieved through the establishment of labour relations that are fair in every way, but also from the recognition and respect of the fundamental rights of workers and trade unions.
40. The foregoing permits the Chamber to establish as a general rule that the freedom of employers to regulate labour relations through collective accords, is restricted or limited by the series of rights, values and principles embodied in the Constitution. In other words, the aforementioned freedom is unassailable and enjoys constitutional and legal protection, but cannot be exercised by the employer to the detriment of the fundamental rights of workers and of trade unions …
41. 370. In this sense, AVIANCA SA has the right to enter into accords and agreements, provided they comply with the provisions of domestic legislation and of the Political Constitution, as laid down by the Constitutional Court. However, as stated at different times, should a company fail to comply with the provisions of labour legislation, the Ministry exercises its powers under law and carries out an investigation and imposes the appropriate administrative measures.
42. 371. The Government indicates that the AVIANCA SA human resources manager provided information to the effect that no collective agreement is in force in AVIANCA SA at the present time. It is also important to note that the unions have engaged in collective bargaining processes with AVIANCA SA, leading to the signature of agreements, specifically with SINTRAVA-ACAV and SINTRAVA. It is added that, in 2005, a collective labour agreement was signed, providing an increase in employees’ monthly earnings of some 78.26 per cent, this increase being proportional to the wages due. The company adds that SINTRAVA is a minority union and that its benefits are not extended to all employees, for which reason the company granted extra-legal benefits to non-unionized workers purely for reasons of equity and respect for the principles of labour law, including employment in conditions of justice and dignity.
43. 372. On the subject of allegations involving AVIANCA-SAM, the Government states that the ACDAC had withdrawn the allegations in question and that to re-open a case of this nature would jeopardize the juridical security of agreements reached between the parties (AVIANCA-SAM and ACDAC).
44. 373. In connection with the reduction in the number of members as a result of pressure by the company, AVIANCA SA does not concur, given that ACDAC is a union organization and further arguing that freedom of association is freely chosen, with the result that it is entirely up to the worker to decide whether to join one or several unions or, on the contrary, not to do so. It adds that at no time has the company persecuted ACDAC, and that the workers who chose to withdraw from the union did so because they did not agree with the refusal to give notice of termination of the agreement and thus trigger collective bargaining. AVIANCA SA further states that, in the light of the union’s refusal, the company several times invited the union to initiate the respective stage of bargaining but that this invitation was always refused.
45. 374. The Government conveys the information provided by AVIANCA SA to the effect that, upon expiry of the term of the agreement, and given that the union failed to initiate the bargaining process, the company laid before the ACDAC Assembly a draft list of agreement amendments with a view to amending the agreement between ACDAC and AVIANCA by mutual consent. This does not constitute a collective accord as the union in question has erroneously called it.
46. 375. According to information supplied by AVIANCA SA, it denies the existence of a collective accord, stating that the company has entered into two collective agreements, one applying to the SINTRAVA and SINDITRA unions, and the other to the ACAV and ACDAC unions. It further states that the company offers non-unionized workers a structure of specific benefits, called the Voluntary Benefits Plan. This Plan contains benefits that cover both unionized and non-unionized workers. However, the collective agreements contain clauses stating that benefit structures other than those contained in the agreement are not applicable, making it impossible to grant the Voluntary Plan benefits to anybody other than employees who voluntarily decide to adhere to the Plan. No collective accords are in force at the present time in AVIANCA SA. Lastly, AVIANCA SA states that the Voluntary Benefits Plan arose following the ACDAC’s refusal to negotiate, which some crew members did not agree with, and choosing to accept the offer originally laid by the company before the ACDAC Assembly which better accorded with their interests, and requesting individual application of the Voluntary Benefits Plan.
47. 376. In this regard, AVIANCA SA states that in May 2005, ACDAC agreed to withdraw judicial proceedings at the national level, and at international level. AVIANCA SA repeats that at no time has exerted pressure or engaged in acts against the union. In regard to the settlement reached with the ACDAC, before the Ministry for Social Protection, AVIANCA SA states that this process was voluntary in nature and followed the conclusion of the Final Amended Agreement in which it was agreed with the ACDAC President, Captain Rafael Martínez Guerra, that ongoing legal and administrative actions would be withdrawn. AVIANCA SA quotes the clause of this agreement on the subject of the above withdrawal of actions:
48. The ACDAC undertakes to submit to the Vice President for Human Resources a copy of the documents submitted to the judicial, administrative or any other national and international authority (Ministry for Social Protection, Prosecution Service and other judicial entities, among others and the International Labour Organization), whereby it desists from any legal or administrative action currently underway in connection with freedom of association, employment in conditions of dignity and justice, equality or wage increases and/or regarding infringement of the Convention. This agreement will become invalid if the documents in question are not submitted before Thursday, June 2, 2005.
49. 377. The company states that conciliation constitutes a prompt means of settling disputes, is free of coercion and is of a voluntary nature, for which reason the union’s statements are unacceptable in that they seek to reopen a case that has been closed. AVIANCA SA repeats that at no time has pressure been brought to bear on members of ACDAC’s executive board to sign a final agreement. The Government states that, according to AVIANCA SA, the latter on several occasions invited the ACDAC to open negotiations with a view to amending the agreement, but that, instead of submitting a list of demands in order to initiate the direct bargaining stage, the union forwarded communications requesting wage increases (which could not happen because the figures in the agreement had not been updated and further negotiations would be needed to do so) or rejecting the invitations extended by the company. As a result of ACDAC’s refusal to begin negotiations, some pilots decided to ask AVIANCA to apply the benefits offered, intended specifically for pilots and co-pilots, and which are linked to the company’s productivity. Lastly, AVIANCA SA repeats that at no time has it sought to pressure members to leave ACDAC; it wished merely to provide a benefit by amending the second clause of the collective labour agreement.
50. 378. It draws attention to the fact that it is only after two years have elapsed that the union alleges pressure to sign the document that relates both to withdrawal and to wage increases.
51. 379. In regard to matters relating to HELICOL SA, AVIANCA SA in its observations again states that AVIANCA-SAM-HELICOL ceased to exist as a single company pursuant to the declaration of loss of executive force of resolutions No. 0006 and No. 01017 of 6 January and 7 April 1976 respectively, which had established it as a single company.
52. 380. As a result, each of the above companies, without prejudice to the existence of the original single company, was responsible for complying with ACDAC’s agreement-based obligations. Thus, the AVIANCA-SAM-HELICOL Amendment Agreement, dated 31 May 2005, established that:
53. The parties signing this agreement specify that it will not apply to employees and former employees of HELICOL, pursuant to issuance of resolution No. 4045 of 15 December 2003, which embodies the declaration of loss of executive force of resolutions No. 0006 and No. 01017 of 6 January and 7 April 1976, in which reference is made to Helicopteros Nacionales de Colombia (HELICOL) demonstrating the disappearance of the factual and legal foundations giving rise to be declaration of the existence of a single company incorporating Aerovias Nacionales de Colombia SA – AVIANCA SA. As a result of the above, and as is embodied in resolution No. 4045 of 2003, the agreements previously entered into between the company and ACDA become void as regards ACDA members employed by HELICOL and any reference in the agreement to “Helicopteros Nacionales de Colombia” or to “HELICOL” as well as the special HELICOL chapter should be removed.
54. 381. In regard to the dismissal of Captain Carlos Quintero and Captain Santiago Escobar, the Government states that, according to AVIANCA, the situation has no bearing on negotiations undertaken with ACDAC. Captain Carlos Quintero’s dismissal was classified as being without just cause, despite the fact that he claimed medical problems that were fictitious, with AVIANCA cancelling the corresponding compensation. Meanwhile, Captain Santiago Escobar was dismissed without just cause, and he was paid the respective compensation, despite the fact that he engaged in conduct that was counter to company policies, as reported by the human resources manager who stated that the captain engaged in inappropriate conduct towards his colleagues. AVIANCA maintains that the dismissal of Captains Quintero and Escobar was unrelated to their trade union membership.
55. 382. In regard to the submission of administrative complaints, the Government states that AVIANCA reported that these were consolidated into a single file handled by the Seventh Inspectorate, although the ACDAC in a communication dated 23 July 2007, signed by Captain Raphael Martínez Guerra, president, requests the discontinuation and closure of the complaints, for which reason the Ministry for Social Protection, in a decision dated 10 August 2007, closed the proceedings, as demonstrated by the appended copy of the decision.
56. 383. On the subject of the deduction of dues from non-members of the union, the Government states that AVIANCA SA provided information that the appeal for protection of constitutional rights (amparo) lodged by ACDAC was rejected. The judicial authority concluded that the deductions that ACDAC wished to make from employees deciding to withdraw from the union were totally illegal. Deduction of ordinary trade union dues is permitted only when the worker is an active member of the organization or when, although not a member, he benefits by extension from the agreements entered into with the organization. In this connection, the judicial authority concluded that, if it were to accede to such a demand by ACDAC, the company would be obliged to infringe the law to the detriment of a number of employees who, by virtue of the contrary dimension of freedom of association, are entitled not to contribute to the financial support of ACDAC. The company states that it makes deductions only with reference to ACDAC members who are the sole beneficiaries of the collective agreement.
57. 384. With regard to the allegations of ACAV relative to accession to a voluntary benefits plan which encourages workers to leave the union, the Government indicates that, according to the explanations given by AVIANCA, accession to the fund is voluntary and is due to the request of various flight attendants who are free to enter the plan, including those who are trade union members, since none of the six trade union organizations in existence have the necessary number of members to be considered as representing the majority and none of them bring together not even one third of workers. The company also refutes that the new employees are obliged to join the voluntary benefits plan; it is not a prerequisite for the signature of the work contract and there is no pressure on workers to leave the union. Simply, as ACAV refused to negotiate, the company went ahead and offered a benefits package to the workers.
58. 385. With regard to the disciplinary proceedings instituted against Mrs Soraya del Pilar Padilla, this was due, according to report No. 212 of 9 November 2005 issued by the Customs Police, to the fact that Mrs Padilla entered the country with a sum of money above the limits allowed for crews, an act which is prohibited by article 84(50) of the Internal Rules of the company and resolution No. 6 of 2004. The administrative proceedings have been concluded and the contract of Mrs Padilla was terminated with just cause. With regard to the allegations relative to Mrs Liliana Giraldo, Ihonaira Díaz, Gloria Giraldo and Claudia Marcela Villa, these did not carry out the flights to which they had been assigned. The trade union was notified of the disciplinary proceedings in conformity with the collective agreement in force. Moreover, Mrs Díaz initiated regular proceedings which are pending before the labour courts.
59. 386. As for the allegations relative to the refusal of trade union leave by AVIANCA to some trade union officials, the Government indicates that, according to the information of the company, the trade union has a right on the basis of the collective agreement to permanent trade union leave for two members of the Executive Committee to be designated by them, and trade union leave of up to four months during the duration of the collective agreement, that is to say between 2005–10, for one person. The trade union requested permanent trade union leave for two members of the Executive Committee and also requested four months’ trade union leave for Mr Julio Elías Pinzón (Treasurer). This leave was requested and granted on two occasions and the third request was refused for reasons related to the needs of service during the high season with the clarification that the company had already granted the leave provided for in the collective agreement. ACAV lodged an appeal for protection of constitutional rights (tutela) which was decided in favour of the company both in the first instance and on appeal.
60. 387. With regard to the allegations relative to the transfer of the workers of the SAM company, the Government indicates that, according to AVIANCA, this transfer was due to technical and financial reasons and that in resolution No. 021777 of 15 December 2006 the Territorial Directorate of Antioquia decided the dispute brought to it by the trade union, leaving the trade union free to have recourse to the regular labour courts in order to have its claims heard, as the Ministry of Social Protection does not have competence to decide disputes which pertain to the courts.
61. Replies relating to HELICOL SA
62. 388. In regard to subparagraph (d) of the recommendations relating to HELICOL SA, the Government stated that the wages could not be updated because ACDAC did not denounce the collective agreement, for which reason the existing agreement was automatically extended. The Government refers to the information submitted by the Director-General of HELICOL to the effect that ACDAC resolved not to submit a list of demands upon expiry of the collective agreement 2001–03, demonstrating that it accepted the provision on automatic extension of the collective agreement for a period of six months. It adds that, in April 2004, HELICOL denounced the collective agreement and negotiations were initiated on 5 May of that year, ending 24 May, at which time no agreement had been reached. The Director-General states that, during the first meeting, the trade union representatives did not sign the respective records confirming initiation of discussions and that they failed to attend the final meeting of that phase; the Minister for Social Protection was informed of this fact, whereupon he issued a resolution on 26 June 2006 requesting the parties to return to the negotiating table. The Director-General states that, nonetheless, no agreement was reached during the meeting held on 20 August 2006, given that the trade union was of the view that the AVIANCA-SAM agreement should be renegotiated for HELICOL, whereas the company was interested in negotiating a new agreement. At the present time, the Sixth Labour Inspectorate is considering a complaint lodged by the trade union against the company for an alleged refusal by the company to negotiate.
63. 389. The Director-General of the company has adjusted the wages of pilots belonging to ACDAC, under the same conditions as for beneficiaries of the collective agreement, placing their monthly incomes on an equal footing. These adjustments have been made every month since 1 May 2004 when the collective agreement concluded with the majority of non-unionized employees came into force, and which the company continues to implement.
64. 390. The Government adds that, according to information provided by the Territorial Directorate of Cundinamarca, administrative labour investigations are currently ongoing against HELICOL by the Seventeenth Inspectorate regarding a summons to attend an arbitration tribunal; the Government states that the Ministry for Social Protection is considering its admissibility.
65. 391. In regard to subparagraph (e) of the recommendations regarding the conclusion of an accord, the Government repeats that domestic legislation provides for the possibility of concluding an accord and a collective agreement, provided that the provisions of the accord do not infringe the rights of unionized workers. The Government states that, where no possible violation exists, workers can have recourse to the administrative entity.
66. 392. In regard to allegations of pressure on HELICOL SA employees, the Government refers to the statement by HELICOL’s Director-General denying the existence of such pressure on HELICOL SA bodies to agree to a collective accord, stating that company employees decided freely. The collective accord covered pilots and technical and administrative employees of the company under a single regime which accommodated the specificities of each category.
67. 393. In regard to subparagraph (f) of the recommendations, the Government refers to the statement by HELICOL Director-General to the effect that employees voluntarily accepted the retirement plan and that contracts were terminated by mutual agreement. He adds that the legal proceedings that were initiated relate to other concerns connected with the issuance of tickets. He maintains that AVIANCA SA issued such tickets, but that once it was declared that AVIANCA-SAM and HELICOL were not a single company, tickets were no longer issued to HELICOL SA, which prompted proceedings against both companies and which are currently before the Bogotá courts.
68. 394. In regard to subparagraph (g) of the recommendations, relating to the unilateral establishment of one day per week to be devoted to trade union activities, the company states that HELICOL SA granted trade unions leaves of absence on Thursdays to Captain Orlando Cantillo, member of the executive board of ACDAC, to attend meetings which was, in fact, an act of generosity by the company since the collective agreement currently in force between HELICOL SA and ACDAC does not provide for recognition of trade union leaves of absence. When AVIANCA and HELICOL SA were a single company, trade union leaves of absence were granted on the basis of AVIANCA SA’s collective agreement, but when it ceased to be a single company, the agreement ceased to apply for HELICOL SA. Nonetheless, and taking into account the leave granted by the company to attend to trade union activities on Thursdays, additional days of rest, or less work was scheduled for some months and provided for in the collective agreement. Indeed, shifts and schedules were arranged with a view to avoiding any discomfort and, contrary to assertions to the contrary, his position as trade union leader is respected. The company states that this situation was accepted by Captain Cantillo who has never expressed disagreement with this arrangement. The company is not aware of the existence of a complaint in this connection. In the light of the reply received from HELICOL SA, the Government is of the view that the company has acted in conformity with domestic legislation on trade union leaves of absence.
69. AEROREPUBLICA SA
70. 395. In regard to the alleged refusal by AEROREPUBLICA SA to enter into collective bargaining, the Government refers to the company President’s statement that AEROREPUBLICA SA has never refused to negotiate the lists of demands submitted by ACDAC since 1998. Thus, to date, the union has not lodged any complaint before the Ministry of Social Protection alleging a refusal by AEROREPUBLICA SA to negotiate lists of demands it has submitted. The President maintains that failure to reach agreement during the direct settlement phase was due to the trade union’s inflexibility. It adds that the Ministry for Social Protection convened both compulsory arbitration tribunals because transporting passengers by air is an essential public service; it forwards the corresponding arbitral decisions, several of which have been examined by the Labour Chamber of the Supreme Court of Justice, which is the supreme jurisdictional body, which has found them to be in conformity with the law.
71. 396. In regard to Mr Alfonso Pinzón Velásquez, the company states that he himself initiated a trade union immunity proceeding in 2000, seeking reinstatement as a B727 pilot, despite the fact that the company no longer operated such aircraft. Ultimately, the parties signed an agreement to halt the legal proceedings following a settlement reached before the competent authority.
72. 397. In regard to Mr Héctor Vargas, the company maintains that it terminated his employment contract with just cause because Captain Vargas refused to comply with his employment obligation to report to the company’s training centre, which is a requirement for undertaking the flight simulator test in the United States to update his pilot’s license and thereby put him on the roster, that is, schedule his flights. This case is ongoing.
73. 398. In regard to Mr Eduardo Andrés Luna Béltran and Mr Jairo Ernesto Patiño, the company states that they were under an employment obligation to report for and pass six-monthly flight simulator training which is carried out in the United States, under the supervision of instructors who are duly accredited by the Colombian Civil Aviation Authority; this is a precondition for keeping their respective pilot licenses current. Pilots’ licenses must be updated on a six-monthly basis and the company has agreed with the union that crew members may sit the simulator test twice; a second failure causes the pilot to be placed at the company’s disposal. Since the captains in question did not pass the two simulator tests, the company could no longer use their services as pilots, for which they had been hired, and thus the company was obliged to dispense with their services but paid them the compensation provided for in the arbitral decisions which establish a larger sum than is provided for in law.
74. 399. Mr Juan Manuel Vega León initiated a trade union immunity proceeding against AEROREPUBLICA SA which found for the company in a decision of 30 November 2006 by Bogotá Superior Court – Labour Chamber which overturned the decision of the first instance by the Ninth Labour Court of the Bogotá Circuit, ruling that the company was not obliged to reinstate the complainant.
75. 400. In regard to Mr Carlos Andrés Gómez Herrera, the company states that AEROREPUBLICA SA terminated his contract without just cause and, upon its termination, Captain Gómez received the compensation to which he was entitled pursuant to the arbitral decision. The Eighth Civil Court of the Bogotá Circuit, which heard the appeal for protection of constitutional rights (tutela) action in the second instance, confirmed the finding in favour of the company originally handed down by the Thirteenth Civil Municipal Judge of Bogotá.
76. 401. Mr Gonzalo Andrés Arboleda’s employment contract was ended by mutual agreement and through conciliation with AEROREPUBLICA SA.
77. 402. In regard to the disciplinary sanctions against Hernán Alvares, Roberto Ballén Bautista, Felipe Palomares and Julio Wilches, the company states that the relevant arbitral decisions provided for a special procedure to be followed by AEROREPUBLICA SA prior to imposing any disciplinary measure. The persons in question engaged in an extremely serious act of indiscipline when, wearing their captains uniforms and prior to a scheduled flight, in the city of Medellín, in December 2002, they approached passengers and distributed flyers questioning the safety of the company’s aircraft, for which reason the company imposed corrective disciplinary measures.
78. 403. The company states that Captain Roberto Ballén Bautista is the only AEROREPUBLICA SA crew member belonging to be ACDAC executive board, that is, the only trade union leader in AEROREPUBLICA SA. The company states that in June 2004 it scheduled Captain Ballén to attend his six-monthly simulator test, as required by the Civil Aviation Authority, to keep his license current; he failed to attend, for health reasons, and the company rescheduled captain Ballén’s test for July 2004; however, he unilaterally decided not to attend the simulator test, despite the fact that he had been paid the corresponding allowances. For this reason, the company followed the procedure laid down in arbitral awards and initiated proceedings to remove trade union immunity from this crew member; the matter is currently being investigated by the Sixth Labour Court of the Medellín Circuit. Through resolution No. 003923 of 11 October 2004, AEROPUBLICA SA was sanctioned for violating the arbitral award, but this decision was partially reversed through resolution No. 002965 of 17 October 2006. The Government indicates that in the end, most court rulings handed down were in favour of the pilots, like Captain Roberto Ballén. With regard to the pending judicial proceedings, the Government indicates that it will await the decisions of the judicial authority. It sends detailed information on the proceedings under way.
79. 404. In regard to the complaint submitted by Captain David Restrepo Montoya before the Labour Inspector of Medellín, the latter ordered the file to be closed by reason of the fact that this is a complaint of an individual nature. Subsequently, Captain David Restrepo Montoya initiated an ordinary labour suit.
80. 405. In regard to the case involving Julio César Wilches Barrero, the company states that on 6 February 2007, the Eleventh Labour Court of the Bogotá Circuit settled with the company each of the clauses of the demand, for a sum of 57 million pesos.
81. Reply regarding the company Vertical de Aviación SA
82. 406. In regard to the allegations submitted by ACDAC with reference to Vertical de Aviación SA, the Government states that, according to the company, ACDAC and several pilots and co-pilots, without justification, ceased to recognize a mutually agreed arrangement between pilots and co-pilots, on the one hand, and Vertical de Aviación SA on the other, whereby, in light of the difficult circumstances, the collective agreement was revised and financial benefits were reduced. The company maintains that it has never threatened its pilots with repressive action or dismissal, and it merely requested pilots and co-pilots to meet with the company to amend some financial aspects of the agreement. It adds that pilots and co-pilots voluntarily agreed and, after several meetings, a mutually agreed document was signed. Paragraph 1 of this document states:
83. … the pilots representing their colleagues in Vertical de Aviación SA, were fully informed of the difficult economic and financial situation to which the company had been subject for some time, and particularly during 2005, and being aware moreover of the need to revisit some provisions embodied in the collective agreement concluded between the company and ACDAC, the trade union to which they belong, for the benefit of both parties and in a spirit of goodwill in the interests of overcoming the current crisis …
84. In subparagraph (b) “the pilots who in this agreement represent all the pilots employed by Vertical de Aviación SA and for the above reasons, in a spontaneous and involuntary manner and also interpreting the sentiments of their colleagues, who have expressly stated this, decide for the duration of 2005 to renounce all salary increases and extra-legal adjustments with respect to any bonus, expense, or ticket provided for in the collective agreement in force to 31 December 2005, with the parties to this agreement undertaking to review in May 2006 the employment conditions agreed upon in this document”.
85. And in subparagraph (c) “it is expressly stated that the above agreements reflected in this document are motivated by the good faith demonstrated by all the parties here present and for the benefit of all so that the company can continue its activities and to ensure the well-being of family members, and that no pressure of any type has prompted this action”.
86. 407. This document was concluded on 4 May 2005 and voluntarily signed by representatives of pilots and co-pilots who stated upon signing that “the civilian pilots signing this agreement do so in our own names, in representation of the pilots and co-pilots in the employ of Vertical de Aviación SA, and also as negotiators appointed by ACDAC for the collective bargaining process for January 2004 to 31 December 2005”. This document further states “our pilots in the employ of Vertical de Aviación SA voluntarily state that we accept and support what has been agreed upon in this document dated 4 May 2005 signed by our representatives in the company to renegotiate our pay conditions”.
87. 408. At the time that the agreement was concluded, the company employed 20 pilots and 17 copilots, totalling 37 employees, who accepted the procedure pursued and the revised agreements laid down in the document (4 May 2005). Pursuant to implementation of the terms agreed in the document, 12 pilots were paid their social benefits, in addition to a supplementary amount in the form of a bonus to compensate for giving up certain benefits provided for in the original collective agreement. The agreement further provides that the company would rehire the employees, which it did subsequently.
88. 409. The company denies having refused to negotiate the list of demands. On the contrary, the company appointed its negotiating committee, but the dispute arose when the pilots and co-pilots insisted that neither the agreement document nor the documents signed by the company had any value and that negotiations should have focused on the collective agreement. Upon expiry of the legal deadlines for negotiation, and pursuant to Colombian law, the Ministry for Social Protection set up an arbitration tribunal made up of one arbiter from the trade union, another from the company and a third appointed by the Ministry. The arbitral ruling was issued on 30 August 2007, but was challenged by the trade union through an application to revoke submitted to the Supreme Court of Justice, the outcome of which has not yet been announced. The company states that it is currently making the financial payments to which it is committed. It should be noted, in regard to the wage increases agreed in the collective agreement for 2005, that in that document and in the light of the company’s economic difficulties, pilots and co-pilots had agreed to forego the wage increase for that year, for which reason the increase was not paid.
89. 410. In this regard, the Government considers that the company acted in good faith, given that the negotiation phases provided for in the law were followed, but that the organized employees displayed a negative attitude. The Government emphasizes that the trade union does not refer to the agreement concluded with Vertical de Aviación SA, given that several of the allegations feature in the agreement in question.
90. 411. The company further denies that it refuses to grant union leave to its employees. Bearing in mind that pilots only work for 15 days, followed by 15 days off, some activities could be carried out during the half of the month when they are not working. It would be disruptive to bring them back to base during the course of their 15-day flight schedule. This is why Captain Carlos Pérez Lizcano was not granted union leave every Thursday. In the view of the Government, the fact that the company requires union leave to accommodate the pilots’ flight schedule is not contrary to Conventions Nos 87 and 98, or the principles of freedom of association.
91. 412. The Government states that it has requested information from the Territorial Directorate of Cundinamarca regarding the administrative investigation of Vertical de Aviación SA.

D. The Committee’s conclusions

1. 413. The Committee takes note of the allegations submitted by ACAV, ACDAC and SINTRAVA and of the Government’s observations, and of the extensive appended documentation.
   • AVIANCA-SAM SA
2. 414. The Committee notes, firstly, that the judicial authority established that no company existed as an entity compromising AVIANCA-SAM-HELICOL, as reflected in the collective agreement, which provides that it does not apply to employees and former employees of HELICOL SA.
3. 415. In regard to paragraph (a) of the recommendations, the Committee had requested the Government to take the necessary measures to carry out an investigation in order to ascertain whether the workers dismissed from AVIANCA SA were in fact replaced by others from cooperatives or other companies which would constitute a hidden link to industrial issues; and to determine whether these new workers had freedom of association rights and, in case they had been dismissed for anti-union motives, to ensure that they were reinstated without loss of pay or, if reinstatement was not possible, to ensure that they were fully compensated. In this connection, the Committee notes that, according to the Government, the Atlantic Territorial Directorate had initiated an administrative labour investigation against AVIANCA SA. Through resolution No. 00134 of 19 October 2005 the Territorial Directorate imposed a penalty on the company of ten current legal minimum wages. This resolution was revoked by resolution No. 000221, of 7 March 2007, allowing the parties to go to the courts. The Committee further notes that according to the Government, as provided in Act No. 79/88, the associated labour cooperatives are founded on the principle of solidarity between members, with the result that there is no reason to establish workers’ organizations. In this respect, the Committee recalls its earlier assertion that, in the light of the information provided by the Government and aware of the specific nature of the cooperative movement, the Committee considers that associated labour cooperatives (whose members are their own bosses) cannot be considered either in fact or in law to be “workers’ organizations” in the sense of Article 10 of Convention No. 87, that is, as organizations with the purpose of promoting and defending workers’ interests and that the concept of worker does not include only dependent workers but also independent or autonomous workers and considers that workers associated in cooperatives should be able to establish the trade union organizations they deem appropriate and join such organizations, in compliance with Convention No. 87, Article 2, which provides that workers and employers, without distinction and without prior authorization, have the right to establish the organizations of their own choosing. Consequently, the Committee requests the Government to guarantee that all workers in AVIANCA-SAM fully enjoy their freedom of association rights. The Committee further requests the Government to keep it informed of any legal proceedings initiated by the parties contesting Ministry of Labour resolution No. 000221 which revokes the decision to impose sanctions on the company. Recalling that, in conformity with Article 2 of Convention No. 87, the notion of worker includes not only dependent but also independent workers and that workers in associated labour cooperatives should be able to establish and join the trade union organizations of their own choice, the Committee requests the Government to confirm whether workers in associated labour cooperatives can establish and join trade unions.
4. 416. As regards subparagraph (b) of the recommendations, relating to SINTRAVA’s allegations of threats against AVIANCA SA’s unionized workers in Cali by the United Self-Defence Forces of Colombia (AUC), the Committee had requested the trade union to provide specifics about the circumstances of the threats, so that more information could be requested from the relevant authorities. The Committee regrets that, despite the gravity of the allegations, the trade union has not provided the information requested and urges it to do so.
5. 417. As regards subparagraph (c) of the recommendations relating to SINTRAVA’s allegations regarding the offer of greater benefits to individual workers than those laid down in the collective agreement, the Committee notes that the Government refers to the response submitted by the company to the effect that no collective accords were in force in AVIANCA SA. The Committee notes the company’s assertion that in 2005 a collective agreement was concluded, that SINTRAVA is a minority trade union and that the benefits applying to it do not cover the company as a whole, for which reason the company has established a system of extra-legal benefits for non-unionized employees. In this connection, the Committee regrets that, in its observations, the Government confines itself to transcribing the company’s reply. The Committee urges the Government to take the necessary measures to ensure that there is no recourse to the signing of (non-union) collective accords, which are prejudicial to the collective bargaining process or to the collective agreements, in the AVIANCA SA enterprise.
6. 418. In regard to the new allegations against AVIANCA SA submitted by ACDAC, ACAV and SINTRAVA, the Committee notes that these referred to: pressure on trade union organizations, leading to extensive cancellation of union membership by employees, and even causing ACDAC to withdraw the present complaint in 2005; dismissal of ACDAC-member employees – Captains Quintero and Escobar and ACAV members Liliana Giraldo, Gloria Giovanni Giraldo, Claudia Marcela Villa and Ihonaira Díaz; non-compliance with the current collective agreement regarding the granting of trade union leave, disciplinary proceedings and transfer of employees; drafting of a voluntary benefits plan outside the current collective agreement which disproportionately benefits non-unionized employees and which discourages union membership and pressure on the newly hired pilots to join the plan, with the result that they cannot join the trade union; and adoption by the Ministry for Social Protection of internal labour regulations that were drafted without the participation of trade unions and of which they were not informed.
7. 419. In this connection, the Committee notes that the Government refers to the company’s reply denying that any pressure was exerted on the trade union, and that the unions withdrew their action before the Committee following a voluntary conciliation process whereby the parties agreed to amend the current collective agreement and that, at that time, the trade union undertook to drop any pending actions at the national and international levels. The company is surprised that the trade union complains of such pressure only two years later. The Committee notes, moreover, that the company maintains that the complainant organizations refuse to engage in new collective bargaining with the result that wages are not increased and prompting several pilots and flight attendants to request that the benefits plan be extended to them on an individual basis. The company refutes that it exerted any pressure on workers so that they leave the trade union organizations. The Committee further notes the company’s information that Mr Quintero and Mr Escobar were dismissed for reasons that are unrelated to their union positions without giving details.
8. 420. With regard to the dismissals of Mrs Liliana Giraldo, Gloria Giraldo, Marcela Villas and Ihonaira Díaz, the Government sends information provided by the company on the circumstances of these dismissals and indicates that the proceedings instituted by Mrs Díaz are currently pending.
9. 421. With regard to the refusal of trade union leave to Mr Pinzón, the Committee notes the information sent by the Government according to which Mr Pinzón was granted trade union leave in conformity with the provisions of the current collective agreement on the basis of which permanent trade union leave was granted to two other trade union officials and four months’ leave was granted to Mr Pinzón.
10. 422. In this connection, the Committee regrets that the Government has failed to undertake a more detailed investigation of these allegations of anti-union discrimination and has merely transcribed the version of one of the parties. This does not allow the Committee to ascertain what really happened and whether or not anti-union discrimination occurred. On this subject, the Committee recalls that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that the complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, para. 817]. Under the circumstances, in order to be able to reach a conclusion in full knowledge of the facts, the Committee requests the Government to take the necessary measures to ensure that an independent investigation is carried out into the following matters: alleged pressure on ACDAC, causing it to withdraw its complaint regarding alleged pressure by the company on complainant organizations; dismissal of Captains Quintero and Escobar; drafting of a benefits plan and whether its application discourages membership of trade unions; failure to make deductions for agreement-based benefits; the status of collective bargaining in the company and the drafting in 2004 of the internal labour regulations without the participation of the trade union. The Committee requests the Government to send its observations on these matters.
11. 423. With regard to the allegations relative to the transfer of workers of the SAM enterprise, the Committee notes that the Government provides information from the company according to which the transfer was due to financial reasons and that the administrative authority issued a decision enabling the parties to have recourse to the judicial authority.
    • HELICOL SA
12. 424. In regard to subparagraphs (d) and (e) of the recommendations, the Committee recalls that it had requested the Government to keep it informed of the status of the dispute regarding HELICOL SA’s refusal to update salaries in accordance with the provisions of the collective agreement and to the pending decision on the appointment of an arbitration tribunal. In this regard, the Committee notes that the Government refers to the reply provided by the Director-General of the company to the effect that salaries are not increased because the trade union has refused to submit a list of demands and has opted to extend the existing collective agreement concluded for the period 2001–03; the Ministry for Social Protection encouraged the parties to negotiate but the unions refused to comply. According to the company, the union is refusing because it wishes to renegotiate the same agreement that was in force when AVIANCA-SAM was a single company, while the company wishes to negotiate a new agreement. The Committee further notes that, according to the company, the salaries of ACDAC-member pilots has been increased, since 2004, by the same amount as the salary of non-unionized workers covered by a collective accord, in order to maintain equality between pilots. The Government further adds that the Territorial Directorate of Cundinamarca carried out administrative labour investigations against the company, which have not yet been concluded, and the possibility is being considered of appointing an arbitration tribunal.
13. 425. In regard to the latest pressures on workers to accede to the collective accord and to leave the trade union, the Committee notes that the union claims that pressure continues, that the Government states that accession to collective accords is provided for in collective legislation and that the company, meanwhile, maintains that the collective accord resulted from free withdrawal from the union by company employees.
14. 426. In this connection, the Committee ascertains that, in this case, the union on the one hand refuses to bargain collectively, despite successive invitations by the company to do so, with the result that wages are not increased because the agreement has not been amended, while, on the other hand, a collective accord exists within the company which provides wage increases to non-unionized employees, which are also paid to unionized employees in the interests of avoiding discrimination. The Committee recalls, regarding the offer of benefits to individual workers, 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. The Committee is of the view that this situation is not satisfactory for any of the parties. The Committee notes that, in Colombian cases, it is frequently stated that the conclusion, with workers who are not union members or who leave their trade union, of collective accords which provide better terms than the collective agreements, serve to discourage collective bargaining as laid down in Article 4 of Convention No. 98 and that collective accords should not be used to undermine the position of trade unions [see 324th Report, Case No. 1973, 325th Report, Case No. 2068 and 332nd Report, Case No. 2046]. In these circumstances, the Committee requests the Government to take the necessary measures to guarantee that collective accords are not concluded with non-unionized workers, to the detriment of the trade union. Moreover, the Committee asks the parties to endeavour once more to reach a negotiated solution to this dispute. The Committee requests the Government to keep it informed in this respect.
15. 427. In regard to subparagraph (f) of the recommendations, on the voluntary retirement of 12 pilots, and the Committee’s request to the Government to inform it of whether any judicial action had been initiated, the Committee notes that the Government, referring to information provided by the company, states that the only judicial proceedings initiated by these pilots relates to failure to deliver plane tickets and not to the question of retirement or dismissal.
16. 428. In regard to subparagraph (g) of the recommendations regarding the unilateral fixing of one day per week for Captain Cantillo to carry out trade union activities, the Committee notes the company’s assertion that such collective leave was not provided for in the current collective agreement, and was granted voluntarily by the company, that this was based on the needs of service provision and that Captain Cantillo had not objected. In this connection, given that this is a matter that affects both the operation of the company and the correct conduct of union activities, the Committee requests the Government to take all measures in its power to encourage the parties to reach a negotiated solution in this matter.
    • AEROREPUBLICA SA
17. 429. In regard to subparagraph (h) of the recommendations, relating to the company’s refusal to bargain collectively and to sanctions against trade union leaders for exercising their rights, the Committee notes that ACDAC maintains that a lack of will to negotiate is demonstrated by the fact that four arbitral rulings have been issued and several negotiators have been dismissed, including Messrs Vega León, Héctor Vargas and Roberto Ballén. The Committee notes that the Government refers to the reply given by the president of the company to the effect that it has never refused to negotiate the list of demands, which is apparent from the fact that no administrative complaint is pending before the Ministry for Social Protection in this connection, and the absence of an agreement is to be attributed to the inflexible position of the trade union during the direct settlement phase. In this regard, the Committee recalls that while the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter of negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement [see Digest, op. cit. para. 938]. Under these circumstances, the Committee requests the Government to take all measures in its power to bring the parties closer together and allow them to reach a negotiated solution to the dispute. The Committee requests the Government to keep it informed in this respect.
18. 430. In regard to sanctions against union leaders (the Committee recalls that allegations were made that several leaders were dismissed, including Captains Héctor Fernandez Vargas, David Restrepo Montoya, Jaime Patiño, Andrés Luna and Carlos Andrés Gómez and sanctions imposed on Captains Julio Wilches, Hernán Alvares, Felipe Palomares and Roberto Ballén for exercising the right of freedom of expression or demanding the exercise of their rights) and the final allegation regarding dismissal of Messrs Vega León, Vargas and Ballén, the Committee notes that according to the company:
    • – Héctor Fernandez Vargas’ case is being processed.
    • – Jaime Patiño and Andrés Luna both failed to carry out training required to renew their pilots licenses, for which reason the company was obliged to dispense with their services.
    • – Mr Vega León was dismissed and brought trade union immunity proceedings which were rejected by the Bogotá Superior Court on 30 November 2006.
    • – Mr Carlos Andrés Gómez was dismissed and received compensation as provided in legislation. The appeal lodged for protection of constitutional rights (tutela) was rejected by the court of the second instance.
    • – Mr Restrepo Montoya initiated a suit which is currently pending.
19. 431. In regard to disciplinary action against Messrs Alvarez, Ballén Palomares and Wilches, the company instituted the disciplinary measures provided for in the rulings because the employees in question had engaged in serious misconduct by calling the company’s security measures into question in the presence of passengers. The only ACDAC official among them was Mr Ballén, who had failed to attend flight simulator training sessions in June and July 2004, for which unsuccessful proceedings were initiated to remove his trade union immunity. The company states that resolution No. 003923 of 11 October 2004 sanctioned the company for failing to give effect to the arbitral ruling, but this decision was partially reversed on 17 October 2006. Lastly, Mr Wilches reached a settlement with the company. The Committee requests the Government to keep it informed of the pending cases involving Mr Restrepo Montoya and Mr Vargas.
    • Vertical de Aviación SA
20. 432. The Committee notes that, according to allegations submitted by ACDAC, the company fails to comply with the current collective agreement (it has reduced the wages of pilots and co-pilots, it has disregarded agreed increases, it fails to pay food and land transport allowances, it has not paid security bonuses or provided uniforms, among other instances of non-compliance), it refuses to negotiate a list of demands and does not apply the established procedures for dismissals, promotions and transfers; it compels pilots to sign documents disavowing rights deriving from the collective agreement, on pain of dismissal; it refuses to grant trade union leave of absence to members of the executive board of the union. The Committee notes from the allegations that the complainant organization submitted an administrative complaint before the Ministry of Social Protection in early 2006, with regard to which no decision has been handed down yet.
21. 433. The Committee further notes that the Government, meanwhile, refers to the reply submitted by the company to the effect that it has not failed to comply with the collective agreement but that, due to the financial crisis suffered by the company, an agreement was concluded on 4 May 2005, between the union, pilots and co-pilots and the company, to reduce the economic benefits deriving from the current collective agreement, including a decision to desist from a salary increase for 2005. The Committee notes that, according to the company, in reality agreed benefits are being paid in full. The Committee further notes that the Government adds that, in connection with the administrative investigation against the company Vertical de Aviación SA, the Office for Cooperation and International Relations has requested information from the Territorial Directorate of Cundinamarca.
22. 434. In regard to the allegations of a refusal to bargain collectively, the Committee notes that the company denies having refused to bargain collectively, but that in fact the complainant organization and pilots refused to acknowledge the agreement in question and sought to negotiate a new collective agreement, with the result that, upon expiry of the direct settlement stage, an arbitration tribunal was appointed and subsequently issued an arbitral ruling on 30 August 2007. The ruling was challenged by the trade union before the Supreme Court of Justice, which has not yet issued a decision. In this respect, the Committee requests the Government to provide information on the pending administrative investigation into non-compliance with the current collective agreement, and into whether agreed benefits are currently being paid, and in regard to the decision by the Supreme Court of Justice regarding the challenge to the arbitral ruling.
23. 435. In regard to union leave of absence, the Committee notes the company’s assertion that the refusal to grant trade union leave of absence every Thursday is dictated by service requirements, given that pilots work two weeks in every month which makes it difficult on occasion to guarantee that they will not be elsewhere on Thursdays. The Committee notes that the Government maintains that the company requirement that such leave should be consistent with pilots’ schedules is not contrary to Conventions Nos 87 and 98, or to the principles of the Committee on Freedom of Association. In this respect, taking into account that this matter is of interest to both parties in terms of service requirements and of correct conduct of trade union activities, the Committee asks the parties to make every effort to reach a negotiated solution to this issue.

The Committee's recommendations

1. 436. In the light of its foregoing interim conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) In regard to allegations that dismissed employees were replaced by the members of cooperatives or employees of companies that do not enjoy freedom of association within AVIANCA SA, the Committee requests the Government to guarantee that all AVIANCA-SAM employees fully enjoy their trade union rights and to keep it informed of any legal proceedings initiated by the parties contesting Ministry of Labour resolution No. 000221 which revokes the decision to impose sanctions on the company.
   • (b) Recalling that, in conformity with Article 2 of Convention No. 87, the notion of worker includes not only dependent but also independent workers and that workers in associated labour cooperatives should be able to establish and join the trade union organizations of their own choice, the Committee requests the Government to confirm whether workers in associated labour cooperatives can establish and join trade unions.
   • (c) In regard to allegations of threats against AVIANCA SA’s unionized workers in Cali, by the United Self-Defence Forces of Colombia (AUC), the Committee urges the trade union to provide specifics about the circumstances of the threats, so that more information can be requested from the relevant authorities.
   • (d) In regard to SINTRAVA’s allegations regarding the offer of higher benefits to individual workers than those established in the collective agreement, the Committee requests the Government to take the necessary measures to ensure that there is no recourse to the signing of collective accords, which are prejudicial to the collective bargaining process and the collective agreements, in the AVIANCA SA enterprise.
   • (e) In regard to the new allegations against AVIANCA SA submitted by ACDAC, ACAV and SINTRAVA, on the subject of pressure on trade union organizations, leading to extensive withdrawal of union membership by employees, and even causing ACDAC to withdraw the present complaint in 2005; dismissal of ACDAC-member employees – Captains Quintero and Escobar; drafting of a voluntary benefits plan outside the current collective agreement which disproportionately benefits non-unionized employees and which discourages union membership and pressure on newly hired pilots to join the plan, with the result that they cannot join the trade union; and adoption by the Ministry for Social Protection of internal labour regulations that were drafted without the participation of trade unions and of which they were not informed, the Committee requests the Government to take the necessary measures to ensure that an independent investigation is carried out into these allegations so as to enable the Committee to reach a conclusion in full knowledge of the facts, and to send its observations on these matters.
   • (f) In regard to the ACDAC’s allegations that HELICOL has refused to update salaries on account of the union’s refusal to negotiate a new collective agreement, and the existence of a collective accord that offers higher salaries to non-unionized workers than those paid to unionized employees and the pending decision regarding the appointment of an arbitration tribunal, the Committee, noting that this situation is not satisfactory for any of the parties, requests the Government to take the necessary measures to guarantee that collective accords are not concluded with non-unionized workers, to the detriment of the trade union, and asks the parties to endeavour once more to reach a negotiated solution to this dispute. The Committee requests the Government to keep it informed in this respect.
   • (g) In regard to ACDAC’s allegation that HELICOL has unilaterally imposed one day per week on which Captain Cantillo can pursue union activities, the Committee, noting that this is a matter that affects both the operation of the company and the correct performance of union activities, requests the Government to take all measures in its power to encourage the parties to reach a negotiated solution in this matter.
   • (h) In regard to sanctions against AEROREPUBLICA SA union leaders, the Committee requests the Government to keep it informed of the pending cases involving Mr Restrepo Montoya and Mr Vargas.
   • (i) In regard to ACDAC’s allegations that AEROREPUBLICA SA refuses to bargain collectively and to the company’s response that the agreement is obstructed by the union’s inflexible position, the Committee requests the Government to take all measures in its power to bring the parties closer together and allow them to reach a negotiated solution to the dispute. The Committee requests the Government to keep it informed in this respect.
   • (j) In regard to ACDAC’s allegations that Vertical de Aviación SA is not complying with the current collective agreement and refuses to bargain collectively, leading to the appointment of an arbitration tribunal which issued an arbitral ruling that was subsequently challenged by the union, the Committee requests the Government to provide information on the pending administrative investigation into failure to comply with the current collective agreement and into whether agreed benefits are currently being paid, together with information on the Supreme Court of Justice’s decision on the challenge to the arbitral ruling.
   • (k) In regard to allegations of a refusal to grant trade union leave of absence on a given day each week, given that this is a matter of interest to both parties and relates to the service requirements and the correct conduct of union activities, the Committee asks the parties to endeavour to find a negotiated solution in this matter.