Report in which the committee requests to be kept informed of development - Report No 349, March 2008

Case No 2556 (Colombia) - Complaint date: 28-FEB-07 - Closed

Allegations: Refusal of the administrative authority to register the new trade union organization Union of Chemical and Pharmaceutical Industry Workers (UNITRAQUIFA), its statutes and its executive committee

1. 746. The complaint is contained in a communication of February 2007, presented by the General Confederation of Labour (CGT).
2. 747. The Government sent its observations in a communication dated 1 October 2007.
3. 748. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 749. In its communication of February 2007, the CGT states that the Union of Chemical and Pharmaceutical Industry Workers (UNITRAQUIFA) was established on 8 June 2006, on which occasion its statutes were approved and its executive committee elected. A request was made, within the time limits prescribed by law, for entry of the organization, its statutes and its executive committee in the trade union register. However, on 10 July 2006, the Ministry of Social Protection requested the organization to provide it with “detailed” information as to which workers belonged to temporary employment agencies, including their names and the company’s name in each case. This requirement does not appear in any regulation as providing grounds for the non-registration of a trade union. In particular, account has to be taken of the fact that the request for registration was accompanied by a list of the organization’s founders, of the participants in the assembly and of those who were elected to hold posts as union officials. The complainant organization alleges that the registration authority also made remarks concerning the first article of the recently approved statutes in regard to the class of workers belonging to the union, despite this having already been explained at the time the request was made. According to the complainant organization, one of the reasons for the registration having been refused is the fact that the new organization accepts workers from temporary agencies serving the sector’s industries.

B. The Government's reply

1. 750. In its communication of 1 October 2007, the Government states that the refusal to register the organization in question as a trade union was due to the fact that the workers belonging to it do not work in enterprises from the same industry, as is required under article 356 of the Substantive Labour Code. According to the Government, workers providing their services in various enterprises of the same industry must be bound by a contract of employment to the industrial enterprise to which the union corresponds. The Government points out that some of the members of UNITRAQUIFA are workers with the temporary agencies “Servimos”, “Temporales” and “TyS” who were assigned to perform their functions with the pharmaceutical companies, Shering Plough SA and Carboquímica; in other words, they are not directly employed by these companies. Furthermore, the companies do not belong to the same industry, while “Servimos”, “Temporales” and “TyS” are companies that provide services, Shering Plough SA and Carboquímica are companies that are engaged in an industrial activity.
2. 751. The Government attaches the report of the Office for the Coordination of Labour, Employment and Social Security, in which the following is stated: “this office notes that the members of UNITRAQUIFA are workers with the companies Shering Plough SA, Carboquímica, Servimos, Temporales and TyS, these last three companies being temporary employment agencies whose purpose is, among other things, to assign workers to its customer enterprises […]. From this it may be firmly concluded that the workers with the temporary employment agencies do not correspond to the same activity as that pursued by Shering Plough SA and Carboquímica, while the latter are engaged in an activity that is strictly industrial in nature, the former are engaged in an activity that in no way corresponds to any of what are commonly considered the world over as industries; on the contrary, they are engaged in an altogether dissimilar activity that has to do with personal services”.

C. The Committee’s conclusions

1. 752. The Committee notes that the allegations presented by the CGT refer to the refusal by the administrative authority to register the Union of Chemical and Pharmaceutical Industry Workers (UNITRAQUIFA), its statutes and its executive committee on the grounds that, among other things, its membership included workers from the temporary employment agencies serving the industries of the sector.
2. 753. The Committee notes the Government’s statement that in order for registration to be able to take place the workers have to be providing their services within companies belonging to the same industry and to be bound to those companies through contracts of employment. In the specific case at hand, the Government states that the refusal was due to the fact that the trade union organization was made up of workers from the pharmaceutical industry and of workers from temporary employment agencies who were assigned to carry out their functions with those pharmaceutical companies. The Committee notes in particular the report of the Office for the Coordination of Labour, Employment and Social Security.
3. 754. In this regard, the Committee recalls that “the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 333]. In the present case, the UNITRAQUIFA workers should have the right to establish an industrial organization as they see fit, inasmuch as all of them are working within pharmaceutical companies, irrespective of the type of relationship they have with those companies. Although the workers from “Servimos”, “Temporales” and “TyS” who have joined UNITRAQUIFA have no direct employment relationship with the pharmaceutical companies, Shering Plough SA and Carboquímica, they have been sent to perform work in the sector and therefore may wish to become part of a trade union organization representing the interests of the workers in that sector at country level. The Committee recalls in this regard that the status under which workers are engaged with the employer should not have any effect on their right to join workers’ organizations and participate in their activities. The Committee likewise recalls that all workers, without distinction whatsoever, whether they are employed on a permanent basis, for a fixed term or as contract employees, should have the right to establish and join organizations of their own choosing [see Digest, op. cit., para. 255]. In these circumstances, the Committee requests the Government to take the necessary measures, without delay, to register UNITRAQUIFA, its statutes and its executive committee, and to keep the Committee informed in this respect.

The Committee's recommendations

1. 755. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take the necessary measures, without delay, to register UNITRAQUIFA, its statutes and its executive committee, and to keep the Committee informed in this respect.