Interim Report - Report No 351, November 2008

Case No 2600 (Colombia) - Complaint date: 06-SEP-07 - Closed

Allegations: The National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-Metals and Related Industries (SINTRAIME), the Single Confederation of Workers of Colombia (CUT) and the World Federation of Trade Unions (WFTU) allege the dismissal, on 28 July 2007, of two trade union leaders of SINTRAIME, by a metallurgical enterprise, and the use by that enterprise, to carry out regular production activities, of temporary workers who neither enjoy the right to unionize nor are covered by the collective agreement. It is also alleged that: pressure was put upon the workers of another enterprise which resulted in the non-renewal of the contracts of 18 workers; a wage increase provided for under the collective agreement was withheld in the case of those workers who had joined the trade union after 1 June 2007; two trade union leaders were dismissed and the enterprise used temporary workers to carry out regular production activities

1. 548. The National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, ElectroMetals and Related Industries (SINTRAIME) and the Single Confederation of Workers of Colombia (CUT) presented their complaints in communications dated 6 September 2007. The World Federation of Trade Unions (WFTU) presented its allegations in a communication dated 16 August 2007.
2. 549. The Government sent its observations in communications dated 29 February and 10 July 2008.
3. 550. 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 complainants’ allegations

1. 551. In their communications dated 6 September 2007, the CUT and SINTRAIME allege that a collective labour agreement has been signed and an arbitral award is in force between the enterprise Productos de Aluminio Munal SA and SINTRAIME, the representative body of the unionized workers, covering ten workers with over 20 years’ seniority out of the 120 workers employed by the enterprise. The enterprise has repeatedly violated the international labour standards and agreements ratified by Colombia with regard to freedom of association and the right to organize. The administration proceeded to dismiss workers with the aim of destroying the trade union organization, which in the past, had around 160 worker members. Over the last few years, only ten workers, who all enjoy trade union immunity, have held out, two of whom have now been dismissed.
2. 552. In fact, on 28 July 2007, the enterprise Productos de Aluminio Munal SA proceeded unilaterally and without just cause to dismiss Mr Efrey Garay Escobar, a member of the Joint Committee on Occupational Medicine, Health and Safety. Mr Escobar enjoyed trade union immunity under section 11 of the existing collective labour agreement. The enterprise also dismissed Mr Luis Hernando Huertas Hernández, a member of the Statutory Claims Committee of the trade union’s national executive board. Mr Hernández, who had over 18 years’ seniority within the enterprise, enjoyed trade union immunity under section 30(b) of the statutes of the organization. The Ministry of Social Protection was notified of the trade union status of these two workers on 26 January 2007. This anti-union act is the culmination of a series of injustices stretching back over 15 years, during which time the enterprise has pushed the workers into taking strike action on three occasions and appearing before three arbitration tribunals, the final one meeting on 28 November 2006.
3. 553. The complainant organization adds that the enterprise’s labour needs are met through a temporary employment agency, “Humanos Ltda”. It states that, although by law, enterprises are allowed to contract temporary workers for occasional, incidental or casual labour when there is a need to replace staff members who are on holiday, on leave or off sick, some of these temporary workers have been working in the enterprise for more than eight years. These workers do not enjoy the right to freedom of association and are not covered by the collective labour agreement; their wages are increased at a rate below that of the legal minimum wage; the accident rate is high because there is no awareness, prevention or training mechanism in place; and the workers do not enjoy adequate social protection. The complainant organization encloses a communication sent to it by the enterprise on 15 June 2007, in which the enterprise states that the workers are not in an employment relationship and the collective agreement cannot, therefore, be applied in their case.
4. 554. In its communication of 16 August 2007, the WFTU refers to these allegations within the framework of Case No. 2573, but they will be examined within the present case.
5. 555. The complainant organizations also allege that anti-union acts were committed within the enterprise Compañía Manufacturera Andina (CMA). The enterprise employs around 820 workers, who are currently involved in a labour dispute. Of these workers, 86 belong to SINTRAIME and are covered by a collective agreement for the period 1 June 2006 to 31 May 2008; 585 are temporary employment agency workers; and 160 have fixed-term contracts and over 20 years’ seniority, and have signed a collective agreement for the period 1 June 2006 to 31 May 2010. Under this agreement there should be a wage increase as of 1 June of each year. However, on the last occasion the management of the enterprise did not go ahead with the promised increase, and instead forced certain beneficiaries of the collective agreement to sign a document stating that the wage increase would not be implemented as of 1 June and that the agreement would be revised in January 2008. This situation highlights an unequal relationship in which an employer is abusing its dominant position by imposing an apparent agreement on a group of workers who, owing to the high level of unemployment, had no other alternative than to accept what is an absurd decision on the part of the enterprise. The enterprise also forced those same workers to accept the renewal of their employment contracts at a lower wage rate than the one they had previously enjoyed. Any worker not accepting these conditions did not have his employment contract renewed.
6. 556. The complainant organizations add that the general manager of the enterprise has been intimidating workers who, with fixed-term contracts covered by the agreement, freely and spontaneously joined SINTRAIME, exercising the right to freedom of association. Eighteen workers were informed in writing that their employment contracts would not be renewed; this constitutes clear and deliberate anti-union persecution.
7. 557. Furthermore, workers who joined the trade union after 1 June 2007 have been denied the wage increase provided for under the collective labour agreement on the grounds that they are not entitled to it. Of the 217 workers who, according to the CMA, are employed under direct contracts, 86 joined the trade union, that is to say, more than one third of all the workers on direct contracts, which means, under the terms of section 471 of the Substantive Labour Code, that the current provisions of the agreement cover all workers employed by the enterprise, whether they are unionized or not.
8. 558. Faced with the trade union’s claim, the enterprise proceeded to dismiss several workers who had joined the trade union, including Mr Pedro Jamel Avila and Mr Eduardo Cuéllar, who had both been chosen to sit on the executive board of the trade union.
9. 559. The enterprise CMA hires temporary contract workers and violates the provisions of section 77 of Act No. 50 and section 13 of Regulatory Decree No. 24/98, the relevant paragraph of which was amended by section 2 of Regulatory Decree No. 503/98, by retaining them in its service for periods of much more than one year. Certain workers have been in the company’s service for three or four years, sometimes longer. Employers may only contract temporary workers for occasional, incidental or casual labour, when it is necessary to replace staff members who are on holiday, on leave or off sick.
10. 560. The complainant organizations add that the enterprise does not grant the workers’ holiday leave, as provided for under section 286 of the Substantive Labour Code. SINTRAIME presented a complaint outlining these facts to the Ministry of Social Protection on 17 July 2007.

B. The Government’s reply

1. 561. In its communications of 29 February and 10 July 2008, the Government states, with regard to the allegations concerning the enterprise Productos de Aluminio Munal SA, that, according to the enterprise’s communication, the workers Mr Efrey Garay and Mr Luis Huertas did not enjoy trade union immunity, as can be seen from the attached written record, dated 21 December 2006, of the Coordinator of the Trade Union Archive Group of the Ministry of Social Protection.
2. 562. The Government also states that the unilateral dismissal of the trade union leaders was legal under the terms of section 64 of the Substantive Labour Code, which allows employers to deem employment contracts to be terminated as long as the need for appropriate compensation has been acknowledged; this was done in the present case, and compensation was paid. In the present case, the following sums were paid in compensation: 19,958,867 pesos (US$9,933.90) to Mr Garay and 15,206,253 pesos (US$7,683.90) to Mr Huertas.
3. 563. The Government adds that the dismissals were carried out for economic and financial reasons unrelated to the workers’ trade union membership, and that temporary agency workers were also dismissed.
4. 564. These trade union leaders each presented complaints before the Fifth and Twelfth Labour Courts of the Bogotá Circuit and the Government will abide by the decision handed down by that body.
5. 565. The Government transmits information provided by the enterprise which refers to the periods of trade union leave granted and the benefits agreed under the terms of the collective agreement.
6. 566. As to the recruitment of temporary staff, the Government states that employers enjoy economic freedom, in accordance with the provisions of the Political Constitution (article 333), which is understood to mean the right of individuals to carry on activities of an economic nature in order to maintain or increase their assets, provided that those activities are reasonable and proportional in order to prevent potential conflicts of rights. Employers can, in the exercise of this right, enter into contracts with temporary employment agency workers in order to enhance their efficiency, productivity and competitiveness, which is entirely consistent with Conventions Nos 87 and 98.
7. 567. As to the facts relating to the alleged anti-union persecution and violation of trade union immunity, the Government states that these are being investigated by the Eleventh Labour Inspectorate of the Territorial Directorate of Cundinamarca.

C. The Committee’s conclusions

1. 568. The Committee notes that the present case refers to: (1) allegations presented by SINTRAIME, the CUT and the WFTU, relating to the dismissal, on 28 July 2007, of two trade union leaders of SINTRAIME by the enterprise Productos de Aluminio Munal SA and that enterprise’s use of temporary workers who neither enjoy the right to unionize nor are covered by the collective agreement, to carry out regular production activities; (2) allegations made by SINTRAIME and the CUT relating to pressure put on workers of the enterprise CMA who decided to join SINTRAIME, pressure which led to the non-renewal of the contracts of 18 workers, the withholding of the wage increase provided for under the collective agreement in the case of workers who joined the trade union after 1 June 2007, and the dismissal of two trade union leaders. Allegations were also made concerning the use of temporary workers to carry out regular activities within the enterprise.
2. 569. As regards the allegations presented by SINTRAIME and the CUT relating to the enterprise Productos de Aluminio Munal SA, the Committee notes that according to the complainant organizations, on 28 July 2007, the enterprise proceeded unilaterally to dismiss, without just cause, two trade union leaders, Mr Efrey Garay Escobar, a member of the Joint Committee on Occupational Medicine, Safety and Hygiene, and Mr Luis Hernando Huertas Hernández, a member of the Statutory Claims Committee. The Committee notes that the Ministry of Social Protection was notified of the trade union status of these two workers on 26 January 2007. The Committee also notes that, in its communication of 16 August 2007, presented within the framework of Case No. 2573 which is currently being examined by the Committee, the WFTU refers to the dismissal of these trade union leaders. These allegations will be examined as to their substance in the present case.
3. 570. The Committee notes that the Government refuses to accept the status as trade union officials of the workers in question and attaches a written record from the Trade Union Archive dated 21 December 2006, in which the workers are not listed as trade union leaders of SINTRAIME. The Committee also notes the Government’s statements to the effect that the workers were dismissed for economic and financial reasons but have initiated legal proceedings before the Fifth and Twelfth Labour Courts of the Bogotá Circuit, which are currently pending.
4. 571. In this regard, the Committee observes that the Ministry of Social Protection was only recently (26 January 2007) notified of the appointments of Mr Garay Escobar and Mr Huertas Hernández and that is why their names do not appear on the record dated 21 December 2006 provided by the Government. Thus, at the time of their dismissal, on 28 July 2007, they were already trade union leaders. However, noting that the said trade union leaders have initiated legal actions in this regard, actions which are currently pending, the Committee requests the Government to keep it informed of the outcome of those proceedings.
5. 572. As regards the allegations relating to the use of temporary workers, hired through a labour contractor to carry on the normal production activities of the enterprise, who do not enjoy the right of association and are not covered by the existing collective agreement, the Committee notes that, according to the complainant organizations, the use of temporary staff is allowed by law only in cases of occasional, incidental or casual labour, when there is a need to replace staff members who are on holiday, on leave or off sick. However, according to the allegations, many of the temporary workers have been working in the enterprise for over eight years. The enterprise, as is pointed out in a communication it sent to SINTRAIME, considers that no employment relationship exists between it and the temporary workers, and that they therefore cannot be covered by the existing collective agreement. In this regard, the Committee notes that according to the Government, enterprises enjoy economic freedom and can enter into contracts with temporary employment agency workers in order to enhance their efficiency and productivity. The Committee also notes the information provided by the Government, according to which the Eleventh Labour Inspectorate of the Territorial Directorate of Cundinamarca has initiated an inquiry into the trade union aspects of these allegations. Recalling that, in conformity with Article 2 of Convention No. 87, 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, and temporary workers should be able to negotiate collectively [see Digest of decisions and principles of the Freedom of Association Committee, fifth [revised] edition, 2006, paras 255 and 906], the Committee requests the Government to take the necessary steps to guarantee the right to organize and to bargain collectively of the temporary workers and to keep it informed as to the outcome of the ongoing administrative inquiry.
6. 573. As regards the allegations relating to the enterprise CMA regarding pressure put on fixedterm workers belonging to SINTRAIME which resulted in the non-renewal of the contracts of 18 workers, the withholding of a wage increase provided for under the collective agreement in the case of those workers who had joined after 1 June 2007, the dismissal of the trade union leaders Mr Pedro Jamel Avila and Mr Eduardo Cuéllar for demanding the same increase, and the use of temporary workers provided through a labour contractor to carry out the regular production activities of the enterprise, the Committee regrets that the Government has not sent any observations in this regard and urges it to do so without delay.

The Committee's recommendations

1. 574. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegations relating to the dismissal, on 28 July 2007, of two SINTRAIME trade union leaders, Mr Garay Escobar and Mr Huertas Hernández, the Committee requests the Government to keep it informed of the outcome of the pending judicial proceedings.
   • (b) As regards the allegations relating to the use of temporary workers, provided through a labour contractor to carry on the normal production activities of the enterprise, who do not enjoy the right of association and are not covered by the existing collective agreement, the Committee requests the Government to take the necessary steps to guarantee the right to associate and to bargain collectively of the temporary workers and to keep it informed as to the outcome of the ongoing administrative inquiry.
   • (c) As regards the allegations relating to the enterprise CMA regarding pressure put on fixed-term workers belonging to SINTRAIME which resulted in the non-renewal of the contracts of 18 workers, the withholding of a wage increase provided for under the collective agreement in the case of workers who had joined the trade union after 1 June 2007, the dismissal of the trade union leaders Mr Pedro Jamel Avila and Mr Eduardo Cuéllar for demanding the same increase, and the use of temporary workers provided through a labour contractor to carry on the regular production activities of the enterprise, the Committee regrets that the Government has not sent any observations in this regard and urges it to do so without delay.