Report in which the committee requests to be kept informed of development - Report No 368, June 2013

Case No 2796 (Colombia) - Complaint date: 03-JUN-10 - Closed

Allegations: The complainant organization reports the anti-union transfer of the President of the National Trade Union of Health Service Workers (SINALTRAINSALUD) employed at the Hospital San José de Buga, and the imposition of a collective accord and anti-union dismissals in the company AJE Colombia SA and death threats to the President of SINTRAAJE Colombia

1. 230. The Committee last examined this case at its November 2011 meeting, when it presented an interim report to the Governing Body [see 362nd Report, paras 501–543, approved by the Governing Body at its 312th Session (November 2011)].
2. 231. The Government sent its observations in communications dated August, September and November 2012.
3. 232. 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. Previous examination of the case

1. 233. At its meeting of November 2011, the Committee formulated the following recommendations relating to the outstanding allegations [see 362nd Report, para. 543]:
   • (a) As regards the allegations regarding the transfer of the President of SINALTRAINSALUD, Mr José Ancizar Gallego Cardona, from his post as a porter at the Hospital San José de Buga to a workplace outside the hospital premises, with inferior working conditions, suggesting anti-union harassment, the Committee urges the Government to send detailed observations on this allegation.
   • (b) Recalling that, pursuant to Article 4 of Convention No. 98, the Government must guarantee that direct negotiations of collective agreements with employees are possible only in the absence of a trade union and that such negotiations should not be used in practice for anti-union purposes, the Committee requests the Government to ensure respect for this principle at the company AJE Colombia EU, and to keep it informed of new developments in this regard.
   • (c) As regards the dismissals of trade union members, Mr Luis Enrique Peña Aroca, Mr Carlos Samir Sierra Farfan and Mr Hernando López Puentes, the Committee requests the Government to indicate whether the workers have initiated any proceedings before the labour judge.
   • (d) As regards the dismissals of trade union officials, Ms Sandra Patricia Mejía Rendón, Ms Any Dahiary Ramírez Díaz, Mr Nelson Darío Garzón Parra, and Mr John Henry Aguazaco Castañeda, and the proceedings under way to suspend trade union immunity, the Committee requests the Government to keep it informed in this regard and to communicate a copy of any court rulings handed down.
   • (e) As regards the alleged threats against union official, Mr John Henry Aguazaco, the Committee invites the complainant organization to report these threats to the competent authority, and trusts that the Government will take all the necessary measures to conduct an independent investigation into these allegations and to ensure protection of the union official in question from any act of intimidation.
   • (f) As regards the allegations concerning Mr Alexander Zuluaga Camel, Mr Henry Cruz Correa, Mr Ender Buelvas Catalan and Mr Omar Ospina Ramírez, the Committee requests the Government to send its observations on this matter.

B. The Government’s reply

1. 234. In its communication of August, the Government provides information with respect to the allegations concerning the transfer of the President of SINALTRAINSALUD, Mr José Ancizar Gallego Cardona, from his post as a porter at the Hospital San José de Buga to a workplace outside the hospital premises, with inferior conditions of work which, according to the complainant, constitutes a proof of anti-union harassment. In particular, the Government indicates that: (1) Mr Ancizar was reinstated in his job as a porter; (2) on 3 February 2012 in the First Labour Court of the Circuit of the Municipality of Guadalajara, the company and the worker agreed to put their differences aside; and (3) under the Special Committee on the Handling of Conflicts referred to the ILO (CETCOIT) framework, the Government will continue to assist the parties in seeking consensus.
2. 235. In its communications of September and November 2012, in relation to the recommendation on the signing of collective agreements, the Government indicates that: (1) the trade union organizations SINTRAAJE and SINALTRALAC signed a collective agreement in 2010 with the company AJE Colombia SA and on 25 May 2012 a new collective agreement was signed, with validity from 1 March 2012 to 28 February 2014 (the Government sends a copy of a communication from the General Confederation of Labour to CETCOIT dated 27 September 2012, confirming this information and sending a copy of the collective agreement); (2) the company reported that non-unionized workers had presented a list of claims and on that basis a collective labour accord had been signed; (3) in Colombia collective accords are permitted, but jurisprudence and the Ministry of Labour establish that the benefits of collective accords must not exceed those of collective agreements; (4) the Government improved its protection of freedom of association by adopting Act No. 1453 of 2011, which sanctions persons entering into collective accords granting better conditions overall to non-unionized workers by comparison with the conditions established in collective agreements with unionized workers in the same company; (5) furthermore, the Ministry of Labour initiated the Programme for capacity building, prevention and control for companies with simultaneous collective accords and agreements, which will soon be complemented with a special inspection, surveillance and control initiative in that area; and (6) in this case, the unionized workers enjoy additional benefits such as trade union allowances, leave and special disciplinary treatment.
3. 236. With regard to the allegations concerning the dismissal of Mr Luis Enrique Peña Aroca, Mr Carlos Samir Sierra Farfan and Mr Hernando López Puentes, members of SINTRAAJE Colombia, the Government reports that they took action before the labour courts in which the claims brought against the company were dismissed (the Government sends a copy of a communication from the CGT to CETCOIT, dated 27 September 2012, confirming this information and indicating that the courts dismissed the case at the first and second instance in 2010).
4. 237. With regard to the allegations concerning the dismissals of the union leaders, Ms Sandra Patricia Mejía Rendón, Ms Any Dahiary Ramírez Díaz, Mr Nelson Darío Garzón Parra, Mr John Henry Aguazaco Castañeda, and the proceedings under way to suspend trade union immunity, the Government reports that on mutual agreement and with a view to improving relations with trade unions, the workers in question and the company AJE Colombia SA ended the proceedings to suspend trade union immunity and those workers continue to provide services in the same conditions and exercising their right to organize (the Government sends a copy of the communication of the CGT addressed to CETCOIT, dated 27 September 2012, confirming this information).
5. 238. Regarding the alleged threats to the union leader, Mr John Henry Aguazaco, the Government reports that the company decided to take all the precautions required by the situation and change the worker’s route to make him feel safer in the exercise of his duties. The Government also reports that it has a protection programme for union leaders at risk (the abovementioned communication from the CGT indicates that the threats made against the President of SINTRAAJE Colombia ceased as a result of the company’s intervention, reassigning him to other routes).
6. 239. With regard to the allegations concerning Mr Alexander Zuluaga Camel, Mr Henry Cruz Correa, Mr Ender Buelvas Catalán and Mr Omar Ospina Ramírez, the Government reports that they continue working pursuant to their work contracts.

C. The Committee’s conclusions

1. 240. The Committee recalls that the allegations still pending concerned the transfer of the President of the trade union organization SINALTRAINSALUD, employed at the Hospital San José de Buga, the imposition of a collective accord and anti-union dismissals in the company AJE Colombia SA, and death threats against the President of SINTRAAJE Colombia.

Recommendation (a)

1. 241. With regard to the allegations concerning the transfer of the President of SINALTRAINSALUD, Mr José Ancizar Gallego Cardona, from his post as a porter at the Hospital San José de Buga to a workplace outside the hospital premises, with inferior working conditions, the Committee notes with interest that the Government reports that: (1) Mr Ancizar was reinstated to his post as a porter; (2) on 3 February 2012, in the First Labour Court of the Circuit of the Municipality of Guadalajara, the company and the worker reached an agreement to put their differences aside; and (3) under the CETCOIT framework, the Government will continue to assist the parties in seeking consensus.

Recommendation (b)

1. 242. With regard to the allegation concerning the imposition of a collective accord in the company AJE Colombia SA, the Committee notes that the Government’s indication that: (1) the trade union organizations SINTRAAJE and SINALTRALAC signed a collective agreement in 2010 with the company AJE Colombia SA and that on 25 May 2012 a new collective agreement was signed, with validity from 1 March 2012 to 28 February 2014 (the Government sends a copy of a communication of the CGT addressed to CETCOIT dated 27 September 2012, confirming this information and sending a copy of the collective agreement); (2) the company reported that non-unionized workers had presented a list of claims and on that basis a collective labour accord had been signed; (3) in Colombia collective accords are permitted, but jurisprudence and the Ministry of Labour establish that the benefits of collective accords must not exceed those of collective agreements; (4) the Government improved its protection of freedom of association by adopting Act No. 1452 of 2011, which sanctions persons entering into collective accords granting better conditions overall to non-unionized workers by comparison with the conditions established in collective agreements with unionized workers in the same company; (5) likewise, the Ministry of Labour initiated the programme for capacity building, prevention and control for companies with simultaneous collective accords and collective agreements, which will soon be complemented with a special inspection, surveillance and control initiative in that area; and (6) in this case, the unionized workers enjoy additional benefits such as trade union allowances, leave and special disciplinary treatment.
2. 243. The Committee welcomes the signature of a new collective agreement by the company and the trade union organizations concerned, as well as the measures adopted by the Government to avoid collective accords being signed for anti-union purposes. Recalling once again that, pursuant to Article 4 of Convention No. 98, the Government must guarantee that direct negotiations of collective agreements with employees are possible only in the absence of a trade union and that such negotiations should not be used in practice for anti-union purposes, the Committee requests the Government to ensure respect for this principle and to keep it informed of developments in this regard.

Recommendation (c)

1. 244. In relation to the dismissal of the union members Mr Luis Enrique Peña Aroca, Mr Carlos Samir Sierra Farfan and Mr Hernando López Puentes, the Committee notes that the Government reports that they took an action before the labour courts in which the claims brought against the company were dismissed (the CGT confirmed this information and indicated that the courts dismissed the case at the first and second instance in 2010).

Recommendation (d)

1. 245. With regard to the alleged dismissal of the union leaders, Ms Sandra Patricia Mejía Rendón, Ms Any Dahiary Ramírez Díaz, Mr Nelson Darío Garzón Parra, Mr John Henry Aguazaco Castañeda, and the proceedings under way to suspend trade union immunity, the Committee notes that the Government reports that on mutual agreement and with a view to improving relations with trade unions, the workers in question and the company AJE Colombia SA ended the proceedings to suspend trade union immunity and those workers continue to provide services in the same conditions and exercising their right to organize (the CGT confirmed this information).

Recommendation (e)

1. 246. With regard to the alleged threats to the union leader Mr John Henry Aguazaco, the Committee takes note that the Government indicates that the company decided to take all the precautions required by the situation and to change the worker’s route to make him feel safer in the exercise of his duties. The Committee observes that the CGT indicates that the threats ceased as a result of the company’s intervention, reassigning the worker to other routes, and welcomes the initiatives taken to protect the life of this union leader. The Committee can only encourage the Government wholeheartedly to promote further such initiatives.

Recommendation (f)

1. 247. With regard to the allegations concerning Mr Alexander Zuluaga Camel, Mr Henry Cruz Correa, Mr Ender Buelvas Catalán and Mr Omar Ospina Ramírez, the Committee notes that the Government indicates that the company AJE Colombia SA continues to abide by its work contracts. In the light of this information, the Committee will not pursue the examination of these allegations.

The Committee’s recommendation

1. 248. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to ensure respect for the principle relating to the direct negotiation of “collective accords” as set out in its conclusions, and to keep it informed of any steps taken in this regard.