Report in which the committee requests to be kept informed of development - Report No 356, March 2010

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 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

1. 572. The Committee last examined this case at its June 2008 meeting [see 350th Report, paras 350–436, approved by the Governing Body at its 302nd Session].
2. 573. The Government sent its observations in communications dated 18 June, 15 September and 24 November 2008.
3. 574. 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. 575. At its June 2008 meeting, the Committee made the following recommendations [see 350th Report, para. 436]:
2. (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.
3. (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.
4. (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.
5. …
6. (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.
7. (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.
8. (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.
9. (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.
10. (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.
11. (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.
12. (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.
13. B. The Government’s reply
14. 576. In its communications of 18 June, 15 September and 24 November 2008, the Government sent the following observations.
15. 577. As regards recommendation (a) concerning the replacement of dismissed employees with the members of cooperatives or employees of companies that do not enjoy freedom of association within AVIANCA SA, the Government indicates that, in Colombia, freedom of association is respected and workers belonging to cooperatives may exercise their right to organize within a trade union at the same time, since nothing prevents them from joining an occupation- or even industry-based union. The Government explains, however, that members of associated labour cooperatives may not establish trade unions at the companies where they exercise an activity as cooperative members since the legislation provides that, in terms of both their structure and functions, trade unions shall be composed of workers who hold employment contracts in which a relationship of dependence or subordination may be established. Hence only workers covered by the Labour Code may form trade unions, though this does not prevent other workers from establishing other kinds of associations.
16. 578. As regards Decision No. 00021 of the Territorial Directorate of Atlántico in which it was decided not to penalize the company, the Government attaches a communication from AVIANCA SA in which the latter states that the trade unions have not taken any legal action against the decision.
17. 579. Concerning recommendation (b) in which the Committee requests the Government to confirm whether workers in labour cooperatives can establish and join trade unions, the Government refers to its statements in the preceding paragraphs.
18. 580. With regard to recommendation (c) relating to SINTRAVA’s allegations concerning threats made by the United Self-Defence Forces of Colombia (AUC), the Government is awaiting information on the matter from the complainant organization in order to make inquiries with the competent authorities.
19. 581. With respect to recommendation (e) concerning pressure on trade union organizations, resulting in many workers relinquishing their union membership; the dismissal of ACDAC-member employees – Captains Quintero and Escobar; the drafting of a voluntary benefit plan outside the current collective agreement which particularly benefits non-unionized employees, discourages union membership and puts pressure on newly hired pilots to join the plan; and the adoption by the Ministry for Social Protection of internal labour regulations that were drafted without the participation of the trade unions; the Government refers to the indication by the Territorial Directorate of Atlántico that Decision No. 386 of 21 April 2004 (which was communicated to the trade union on 27 April 2004), approving the internal regulations drafted by the company, was challenged by three appeals for direct revocation, one of which was dismissed.
20. 582. Moreover, in the communication from the company attached by the Government, the company points out that the voluntary benefit plan is intended for three groups of workers with different needs, and the benefits involved are no greater or better than those established in the collective agreement. They were devised in response to constant pressure from a number of non-unionized workers to have their own benefit scheme separate from the collective agreement. The benefit plan was the subject of an action for the protection of constitutional rights (tutela), which was decided in favour of the company in two instances.
21. 583. Relating to the dismissals of Captains Carlos Quintero and Santiago Escobar, the communication from the company indicates that the former was dismissed for claiming to have a medical disability and the latter was dismissed for misconduct.
22. 584. As regards recommendation (g) concerning HELICOL’s refusal to negotiate with respect to union leave for Captain Cantillo, the Government invites the trade union to bring these allegations to the attention of the Special Committee on the Handling of Conflicts referred to the ILO (CETCOIT).
23. 585. With respect to recommendation (h) concerning the penalties imposed on union officials of AEROREPUBLICA, the Government indicates that the Office for International Cooperation and Relations requested information on the proceedings instituted by Captains Héctor Vargas and David Restrepo Montoya in the Ninth Labour Court of the Bogotá Circuit and the Fifteenth Labour Court of the Medellín Circuit.
24. 586. Concerning recommendation (i) relating to the allegations concerning AEROREPUBLICA’s refusal to engage in collective bargaining, the Government states that, according to information supplied by the ACDAC union and the company, an agreement was signed putting an end to the dispute between the parties.
25. 587. As regards recommendation (j) concerning the administrative investigation against Vertical de Aviación Ltda, the Coordinating Office for Prevention, Inspection and Surveillance of the Territorial Directorate of Cundinamarca stated that the investigation is under way in Inspectorate No. 12. It also referred to two investigations against the aforementioned company for alleged violations of the right to organize which are being conducted by Inspectorates Nos 12 and 4. Relating to the union’s appeal against the arbitration award, the Government states that the Supreme Court of Justice decided by means of a ruling of 2 October 2007 not to annul the arbitration award (a copy of the decision is attached).
26. 588. As regards recommendation (k) concerning the refusal to grant trade union leave, the Government refers to the statement by Vertical de Aviación Ltda that attempts are being made to reach an agreement with the trade union in order to settle the matter in question. The Government attaches a copy of the relevant communication from the company.

C. The Committee’s conclusions

1. 589. The Committee notes the Government’s observations relating to the recommendations which remained pending.
2. 590. As regards recommendations (a) and (b) concerning the replacement of dismissed workers with the members of cooperatives or employees of companies that do not enjoy freedom of association within AVIANCA SA, the Committee notes the Government’s statement to the effect that workers belonging to cooperatives may exercise their right to organize within a trade union at the same time, since nothing prevents them from joining an occupation- or even industry-based union, but that they may not establish trade unions at the companies where they exercise an activity as cooperative members because the legislation provides that unions must be composed of workers who hold employment contracts in which a relationship of dependence or subordination may be established. The Committee also notes the company’s assertion (through a communication attached by the Government) that no legal action has been taken against the decision of the Territorial Directorate of Atlántico in which it was decided not to penalize the company in this regard. The Committee recalls that, under Article 2 of the Convention, all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing, including the unions of the enterprise in which they perform their work. The Committee observes that the Committee of Experts on the Application of Conventions and Recommendations, when examining this matter in 2009, asked the Government to consider the possibility of an independent expert conducting a national survey on the application of the Associated Labour Cooperatives Act, and the use thereof in the sphere of labour relations, and clarifying whether or not workers in cooperatives can join trade unions. The Committee requests the Government to keep it informed of any measures taken in this respect.
3. 591. With respect to recommendation (c) relating to SINTRAVA’s allegations concerning threats made by the AUC against AVIANCA SA’s unionized workers in Cali, the Committee observes that, despite asking the trade union to provide specific details of the circumstances of the threats so that inquiries can be made with the relevant authorities, it has not received any further information in this respect. That being the case, the Committee will not examine these allegations any further.
4. 592. Relating to recommendation (e) concerning pressure on trade union organizations, resulting in many workers relinquishing their union membership; the dismissal of ACDACmember employees – Captains Quintero and Escobar; the drafting of a voluntary benefit plan outside the current collective agreement, which particularly benefits non-unionized employees, discourages union membership and puts pressure on newly hired pilots to join the plan (with the result that they cannot join the trade union); and the adoption by the Ministry for Social Protection of internal labour regulations that were drafted without the participation of the trade unions; the Committee notes the Government’s statements to the effect that: (1) the Territorial Directorate of Atlántico stated that Decision No. 386 of 21 April 2004 (which was communicated to the trade union on 27 April 2004), approving the internal regulations drafted by the company, was challenged by three appeals for direct revocation, one of which was dismissed; (2) in the communication attached by the Government, the company points out that the voluntary benefit plan was devised in response to pressure from non-unionized workers to have their own scheme of benefits, which are no greater or better than those established in the collective agreement, and are intended for three groups of workers with different needs; the benefit plan was the subject of an action for the protection of constitutional rights (tutela), which was decided in favour of the company in two instances; and (3) as regards the dismissals of Captains Carlos Quintero and Santiago Escobar, the company states that the former was dismissed for claiming to have a medical disability and the latter was dismissed for misconduct.
5. 593. Concerning the voluntary benefit plan devised by the company for non-unionized workers, the Committee considers that when the company offers improvements in the conditions of work to non-unionized workers through individual benefits, there is a serious risk that the bargaining capacity of the union will be undermined and that discriminatory situations will occur which favour non-unionized workers; moreover, this can also lead unionized workers to relinquish their union membership. The Committee therefore requests the Government to ensure that the voluntary benefit plan is not applied in such a way as to undermine the position of the trade unions and their bargaining capacity, in accordance with Article 4 of Convention No. 98, and that no pressure is placed on workers to join the plan. The Committee also requests the Government to keep it informed of the final outcome of the direct revocation proceedings brought against the decision approving the internal work regulations. The Committee invites the enterprise and the complainant organization to bring these issues to the attention of the CETCOIT and expresses the hope that the parties will be able to reach a negotiated solution.
6. 594. As regards recommendations (f) and (g) concerning HELICOL’s refusal to update salaries and the union’s refusal to negotiate a new collective agreement, the existence of a collective accord that offers higher salaries to non-unionized workers than those which are also paid to unionized employees, and HELICOL’s unilateral imposition of one day per week on which Captain Cantillo can pursue union activities, the Committee notes the Government’s invitation to the parties to bring these issues to the attention of the CETCOIT and hopes that the parties will be able to reach a negotiated solution to the dispute in order to develop harmonious working relations. The Committee requests the Government to keep it informed in this respect.
7. 595. With respect to recommendation (h) concerning the penalties imposed on AEROREPUBLICA union officials Mr Héctor Vargas and Mr David Restrepo Montoya for asserting their right of expression and for claiming the exercise of their rights, the Committee noted in its previous examination of the case that Mr Vargas and Mr Restrepo Montoya had initiated legal proceedings against their dismissals. The Committee notes the Government’s indication that information on the current status of the proceedings was requested from the Ninth Labour Court of the Bogotá Circuit and the Fifteenth Labour Court of the Medellín Circuit. The Committee expects that these proceedings will be concluded in the near future. Should it be established that the dismissals occurred on anti-union grounds, the Committee requests the Government to take the necessary measures to ensure that the dismissed trade union leaders will be reinstated without loss of pay. In the event that the reinstatement of the dismissed workers concerned is not possible for objective and compelling reasons, the Committee requests the Government to ensure that the workers concerned are paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. The Committee requests the Government to keep it informed in this respect.
8. 596. Concerning recommendation (i) relating to the allegations concerning AEROREPUBLICA’s refusal to engage in collective bargaining, the Committee notes with interest the Government’s indication that the ACDAC union and the company signed an agreement putting an end to the dispute between the parties.
9. 597. As regards recommendation (j) concerning the administrative investigation against Vertical de Aviación Ltda for non-compliance with the collective agreement in force, and concerning the decision of the Supreme Court of Justice relating to the appeal against the arbitration award, the Committee notes the Government’s statement to the effect that: (1) as regards the union’s appeal against the arbitration award, the Supreme Court of Justice decided by means of a ruling, dated 2 October 2007, not to annul the arbitration award; and (2) the Coordinating Office for Prevention, Inspection and Surveillance of the Territorial Directorate of Cundinamarca stated that two investigations into alleged violations of the right to organize are being conducted by Inspectorates Nos 12 and 4. The Committee requests the Government to keep it informed of the final outcome of these investigations.
10. 598. Relating to recommendation (k) concerning refusal to grant trade union leave, the Committee notes the Government’s statement that Vertical de Aviación Ltda is endeavouring to reach an agreement with the trade union in order to settle the matter in question. The Government attaches a copy of the relevant communication from the company.

The Committee's recommendations

1. 599. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegations concerning the replacement of dismissed workers with the members of cooperatives or employees of companies that do not enjoy freedom of association within AVIANCA SA, observing that the Committee of Experts on the Application of Conventions and Recommendations, when examining this matter, asked the Government to consider the possibility of an independent expert conducting a national survey on the application of the Associated Labour Cooperatives Act and the use thereof in the sphere of labour relations in order to determine whether or not workers in cooperatives can join trade unions, the Committee requests the Government to keep it informed of any measures taken in this respect.
   • (b) With respect to the allegations concerning pressure on trade union organizations in the same enterprise, resulting in many workers relinquishing their union membership, the drafting of a voluntary benefit plan outside the current collective agreement which particularly benefits non-unionized employees; the pressure on newly hired pilots to join the plan (with the result that they cannot join the trade union); and the adoption by the Ministry for Social Protection of internal labour regulations that were drafted without the participation of the trade unions, the Committee requests the Government to ensure that the voluntary benefit plan is not applied in such a way as to undermine the position of the trade unions and their bargaining capacity, in accordance with Article 4 of Convention No. 98, and that no pressure is placed on workers to join the plan. The Committee also requests the Government to keep it informed of the final outcome of the direct revocation proceedings brought against the decision approving the internal work regulations. The Committee invites the enterprise and the complainant organization to bring these issues to the attention of the CETCOIT and expresses the hope that the parties will be able to reach a negotiated solution.
   • (c) As regards the allegations concerning HELICOL’s refusal to update salaries owing to the union’s refusal to negotiate a new collective agreement, the existence of a collective accord that offers higher salaries to non-unionized workers than those paid to unionized employees and HELICOL’s unilateral imposition of one day per week for the pursuit of union activities by Captain Cantillo, while noting the Government’s invitation to the parties to bring these issues to the attention of the CETCOIT, the Committee hopes that the parties will be able to reach a negotiated solution to the dispute in order to develop harmonious working relations. The Committee requests the Government to keep it informed in this respect.
   • (d) Concerning the penalties of dismissal imposed on AEROREPUBLICA union officials Mr Héctor Vargas and Mr David Restrepo Montoya for asserting their right of expression and for claiming the exercise of their rights, the Committee expects that the judicial proceedings instituted by the union officials against their dismissal will be concluded in the near future. Should it be established that the dismissals occurred on antiunion grounds, the Committee requests the Government to take the necessary measures to ensure that the dismissed trade union leaders will be reinstated without loss of pay. In the event that the reinstatement of the dismissed workers concerned is not possible for objective and compelling reasons, the Committee requests the Government to ensure that the workers concerned are paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. The Committee requests the Government to keep it informed in this respect.
   • (e) The Committee requests the Government to keep it informed of the final outcome of the administrative investigations against Vertical de Aviación Ltda which are being conducted by Inspectorates Nos 12 and 4 of the Territorial Directorate of Cundinamarca into alleged violations of the right to organize.