Effect given to the recommendations of the committee and the Governing Body - Report No 349, March 2008

Case No 2448 (Colombia) - Complaint date: 31-AUG-05 - Closed

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

1. 47. The Committee last examined this case at its March 2007 meeting. On that occasion it made the following recommendations with regard to the outstanding issues [344th Report, paras 802–823]:
   • (a) The Committee once again requests the Government to guarantee the right of the minor workers of COOTRAMENOR, who carry out tasks outside SUPERTIENDAS y Droguerías Olímpica SA, to freely exercise their trade union rights in order to defend their rights and interests, irrespective of whether they work directly with SUPERTIENDAS y Droguerías Olímpica SA or are self-employed workers or work for a cooperative, and to keep it informed in this respect.
   • (b) With regard to the refusal by the authorities to register as a member of the executive board Ms María Gilma Barahona Roa, elected by the National Assembly of the National Unitary Trade Union of Official Workers and Public Servants of the State (SINUTSERES) to the post of controller (fiscal), the Committee once again requests the Government to take the necessary measures to register Ms Barahona Roa as a member of the executive board of SINUTSERES. The Committee requests the Government to keep it informed in this respect.
   • (c) With regard to the non-respect by the Red Cross of the package of benefits agreed upon with SINTRACRUZROJA, the Committee requests the Government to keep it informed of the final outcome of the legal appeals that have been brought.
   • (d) With regard to the allegations concerning pressure exerted on members of the SINTRACRONAL organization to persuade them to give up the collective agreement and the delay by the Ministry of Labour in examining and taking measures in relation to the complaints brought by the trade union organization, the Committee requests the Government to do everything in its power to speed up the administrative investigation and requests the Government to keep it informed in this respect, as well as with regard to the final outcome of the legal action currently under way.
2. 48. The General Confederation of Labour sent new allegations in a communication dated February 2007.
3. 49. The Government sent its observations in communications dated 27 April and 4 July 2007.
4. 50. With regard to section (a) of the recommendations, the Government notes that the State of Colombia guarantees the free exercise of trade union rights. However, in order to form a trade union, there are legal requirements that must be taken into account. One of the requirements is that persons classed as workers in terms of article 22 of the Substantive Labour Code, that is to say persons who are bound by a verbal or written employment contract, are permitted to organize themselves in trade unions. Other persons carrying out activities not under an employment contract can organize themselves into a different class of organization, as guaranteed by article 38 of the Political Constitution, as in this case where minor workers formed an associated labour cooperative. Therefore, it is an indispensable requirement, in order to form a trade union, to be an employee or worker, according to article 39 of the Political Constitution and articles 353 and 356 of the Substantive Labour Code. With regard to the members of the cooperatives, the Government has noted on previous occasions that these have a different legal status to salaried workers. The Constitutional Court, in ruling No. C-211 of 2000, found that there was not a subordinate relationship between the cooperatives and their members, because the member, as such, was not a salaried worker of the institution. As a result, cooperatives did not issue employment contracts, which were essential if there were to be a trade union, as explained above. In that regard, referring to Article 2 of Convention No. 87 and recalling that the concept of worker means not only salaried worker, but also independent or autonomous worker, the Committee has considered that workers associated in cooperatives should have the right to establish and join organizations of their own choosing [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 261 and 262]. The Committee once again requests the Government to take the necessary measures to guarantee the right to organize of the minor workers of COOTRAMENOR, who carry out tasks outside SUPERTIENDAS.
5. 51. With regard to section (b) of the recommendations, the Government reiterates what it has said previously, that the resolution through which it denied the registration of Ms Maria Gilma Barahona Roa, still stands, that is to say that as the government channels have been exhausted, the trade union is entitled to go before the Administrative Disputes Court. Therefore, the Government is abiding by the decision handed down by that body, which is the body competent to review the legality of actions taken by the public administration. The National Unitary Trade Union of Official Workers and Public Servants of the State (SINUTSERES) sent another communication dated 27 September 2007 in which it indicated that Ms María Gilma Barahona Roa has still not been entered in the union register as a member of the executive board of the trade union. The Committee notes that the Government indicates that as the government channels have been exhausted, the trade union is entitled to go before the Administrative Disputes Court. However, the Committee notes that this process could take too long, which might impede Ms Barahona Roa’s work as a union official, particularly given the fact that Ms Barahona Roa has been elected to the post of Controller (fiscal) on the executive board of a national trade union, that is, to carry out work that goes beyond defending the interests of workers within the body that is in liquidation. Secondly, Ms Barahona Roa continues to have a fundamental role to play within the body that is in liquidation, even though legislation has established that no new collective agreements can be made. That role is primarily to defend the interests of the workers during that process of liquidation. Thirdly, and lastly, the Committee recalls that in accordance with Article 3 of Convention No. 87, workers should have the right to elect their representatives in full freedom. Therefore, the Committee once again requests the Government to take the necessary measures to register Ms Barahona Roa as a member of the executive board of SINUTSERES without delay.
6. 52. With regard to section (c) of the recommendations, relating to the non-respect by the Red Cross of the package of benefits agreed upon with SINTRACRUZROJA, the Government indicates that the Circuit-Clearing Tenth Labour Court, in a ruling on 31 January 2007, absolved the Cundinamarca and Bogotá section of the Colombian Red Cross, considering that it was not obliged to comply with the illegal benefits contained in the package of services and benefits, because article 4 of the decision of 15 July 2003 provides that: “the extralegal benefits contained in the package of services and benefits of June 1999 may be granted to the employees by the employer only if financial, economic and administrative circumstances so permit; the employer may at any time amend, modify, increase or cancel the said benefits, based on the institution's financial, economic or administrative prospects”. The Cundinamarca and Bogotá section of the Colombian Red Cross successfully proved that the economic, financial and administrative situation was serious, which justified their not applying the benefits contained in the aforementioned package. The Committee notes this information.
7. 53. With regard to section (d) of the recommendations, the Committee recalls that it had requested the Government to keep it informed of the final outcome of the administrative and legal action currently under way. The Committee notes that the Government reports that, a new collective agreement was signed in October 2006, with the participation of the General Secretary of the CGT, providing for salary adjustments. The Government adds that the Territorial Directorate of Cundinamarca, in resolution No. 002245 of 28 August 2006, decided not to sanction the National Society of the Colombian Red Cross, because it successfully proved that it had complied with its obligations under the collective agreement and the law. According to the Government, that investigation included the allegations relating to the staff renouncing the collective agreement in order to be hired. The Committee notes this information and requests the Government to keep it informed of the final outcome of the ongoing legal proceedings.
8. 54. In its communication of February 2007, the General Confederation of Labour alleges that the enterprise SUPERTIENDAS y Droguerías Olímpica SA intends to impose a plan of extra-legal benefits that, according to the complainant, is a hidden collective accord, while at the same time encouraging de-unionization, by issuing a communication for the employee to sign. The trade union mentions in its communication various pieces of evidence that it did not actually include, despite having been requested by the Office to do so. Therefore, the Committee invites the complainant to send the aforementioned documentation so that the Government can send its observations on the matter.