Report in which the committee requests to be kept informed of development - Report No 375, June 2015

Case No 3063 (Colombia) - Complaint date: 04-MAR-14 - Closed

1. 116. The complaint is contained in a communication dated 4 March 2014, submitted by the Trade Union of Energy Workers of Colombia (SINTRAELECOL).
2. 117. The Government sent its observations in communications of 8 July 2014 and 9 March 2015.
3. 118. 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. The complainant’s allegations

1. 119. In a communication dated 4 March 2014, the complainant reports that Colombia’s judiciary has an anti-union attitude, as seen from a Supreme Court tutela (protection of constitutional rights) judgment denying Termotasajero SA workers the right to the wage increases provided for under the collective agreement for 2003, 2004, 2005, 2006 and 2007, which had been upheld by the High Court of Cúcuta. The complainant also reports that the Ministry of Labour authorized the dismissal of 16 workers from the same enterprise for alleged economic reasons.
2. 120. The complainant also alleges that the Caldas Hydroelectric Power Company and the Quindío Power Company refuse to enter into collective bargaining. In that connection, the complainant describes the situation in the Caldas Hydroelectric Power Company: (i) the bargaining process has been impeded for more than two years; (ii) near the end of the extended direct settlement stage, the enterprise withdrew all of the proposals that it had made and agreements that it had reached during the bargaining; (iii) owing to the slowness with which the Arbitral Tribunal was constituted, the trade union was obliged to withdraw and resubmit its list of demands; and (iv) the enterprise attempted to begin the new stage of the bargaining in the absence of the trade union organization.
3. 121. The complainant also alleges that the Pacific Power Company and the Tulua Power Company systematically refuse to enter into collective bargaining and that, as a result, the lists of demands never lead to agreements; the constitution of an arbitral tribunal must be requested on each occasion and these tribunals take too long to issue their awards. The complainant adds that the Pacific Power Company, dissatisfied with the provisions of the most recent arbitral award, used its economic power in an attempt to prevent the award from being promulgated.

B. The Government’s reply

1. 122. In a communication of 8 July 2014, the Government transmitted the replies of the various enterprises mentioned in the allegations. Termotasajero SA states that: (i) the Supreme Court judgment reported by the complainant is fully consistent with the constitutional and legal provisions in force in Colombia; (ii) the provision of the collective agreement (for the period from 1 March 2000 to 28 February 2002) on the basis of which a wage increase was requested for 2003, 2004, 2005, 2006 and 2007 refers expressly and solely to wage increases for 2000 and 2001; (iii) therefore, the extension of the period of application of the agreement as a consequence of the failure to sign a new one does not cover the provision in question, which applied to a specific and clearly established time period; (iv) for this reason, the courts, in both ordinary and tutela proceedings, have ruled against the trade union organization in the past; and (v) the Supreme Court’s judgment is still pending as part of the normal procedure.
2. 123. The Pacific Power Company states that, under Colombian law, the enterprise has both a collective agreement (convención colectiva), signed with unionized workers, and a collective accord (pacto colectivo). With regard to collective bargaining on the basis of a single list of demands submitted to the Pacific Power Company and the Tulua Power Company by the trade union organization, the enterprise states that: (i) despite the various proposals submitted by the enterprise, no agreement was reached during any of the direct settlement stages, which officially ended on 19 December 2011 with the transmission of a closing document to the Ministry of Labour; (ii) on 2 April 2012, the trade union organization requested the constitution of an Arbitral Tribunal, which was seated on 2 May 2013 and resolved the dispute through an arbitral award on 29 May 2013; (iii) the enterprise was compelled to bring an annulment appeal against the award, which it considered unlawful; and (iv) the annulment appeal is pending before the Labour Chamber of the Supreme Court.
3. 124. The Tulua Power Company also mentions collective bargaining on the basis of a single list of demands (mentioned in the previous paragraph), in which the direct settlement stage officially ended on 19 December 2011, when the closing document was sent to the Ministry of Labour. It adds that the Arbitral Tribunal was seated on 24 June 2013 and resolved the dispute through an award issued on 24 June 2013, which was confirmed and implemented.
4. 125. The Quindío Power Company states that it is unfair to claim that there was an unwillingness to bargain since it was the union itself that, by refusing to denounce the current agreement, triggered its automatic renewal. For its part, the Caldas Hydroelectric Power Company states that recourse to arbitral tribunals was necessary because the union made excessive demands at the bargaining table and took a maximalist position by refusing to sign agreements unless all of its demands were met. The enterprise adds that the facts as submitted show that it has fully complied with the rules governing collective bargaining and that this has been confirmed by the courts, which have ruled against the trade union in all the tutela proceedings that the latter has brought before them.
5. 126. The Government then adds its observations, stating that: (i) the complainant requested a labour administration investigation of the Tulua Power Company and the Pacific Power Company for refusal to bargain collectively and violation of a collective agreement; (ii) the Ministry of Labour declined to order such an investigation because, in its view, the issue was a conflict of interpretation between legal regulations, which fell within the competence of the courts; (iii) the fact that the former Ministry of Health and Social Welfare authorized the dismissal of 16 workers from Termotasajero SA for economic reasons has nothing to do with freedom of association; (iv) the court’s ruling on the annulment appeal against the arbitral award concerning the bargaining between the complainant and the Pacific Power Company is pending; and (v) within the framework of the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT), an agreement to pursue discussion of the list of demands was signed on 4 June 2014, by the representatives of the complainant and the Caldas Hydroelectric Power Company; furthermore, an agreement between the complainant and the Quindío Power Company, in which it was decided to remove the debate from the courts and begin the direct settlement stage, was also signed.
6. 127. In a communication dated 9 March 2015, the Government stated that in January 2015, on the basis of the first agreement that the complainant and the Caldas Hydroelectric Power Company had signed within the framework of the CETCOIT in June 2014, the parties had signed a collective labour agreement that would remain in force until 2017. In the light of the signing of this agreement, the complainant withdrew the 27 labour administration complaints that it had lodged against the enterprise.

C. The Committee’s conclusions

1. 128. The Committee observes that, in the present case, the complainant alleges that Colombia’s judiciary has an anti-union attitude, as seen from a Supreme Court judgment, and also that the right to bargain collectively is being violated by four enterprises in the electricity sector. The Committee also observes that both the enterprises in question and the Government emphasize that there has been full compliance with the relevant constitutional and legal provisions, that various enterprises stress that it is difficult to negotiate with the complainant owing to its alleged maximalist position and that, according to the Government, a collective agreement between the complainant and one of the enterprises mentioned in the complaint has recently been signed.
2. 129. With respect to the complainant’s allegation that the judiciary has an anti-union attitude, as seen from the dispute between SINTRAELECOL and Termotasajero SA, the Committee observes that the dispute revolves around the interpretation of the provision of a collective agreement concerning wage increases in 2000 and 2001, namely, whether this provision must remain applicable to subsequent years during which, in the absence of a new agreement, the collective agreement was extended. Under the circumstances, the Committee will not pursue its examination of this aspect of the complaint.
3. 130. With regard to the report that the then Ministry of Health and Social Welfare authorized the dismissal of 16 workers from the same enterprise for alleged economic reasons, the Committee observes that the allegations are unrelated to any alleged violation of the principles of freedom of association and collective bargaining. Under the circumstances, the Committee will not pursue its examination of this allegation.
4. 131. Concerning the alleged violation of the right to bargain collectively by the Caldas Hydroelectric Power Company, the Committee notes with satisfaction that: (i) in January 2015, on the basis of the agreement that the complainant and the enterprise signed within the framework of the CETCOIT in June 2014, the parties signed a collective agreement that will remain in force until 2017. In the light of the signing of this agreement, the complainant withdrew the 27 labour administration complaints that it had lodged against the enterprise.
5. 132. With respect to the alleged violation of the right to bargain collectively by the Quindío Power Company, the Committee observes that both the complainant and the enterprise have complained that the other party was unwilling to engage in dialogue or conclude agreements. The Committee also notes with interest the Government’s statement that, in June 2014, the complainant and the enterprise signed an agreement in which they decided to remove the debate from the courts and begin the direct settlement stage. Recalling that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement and that genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 935], the Committee encourages the parties to deepen their efforts to establish relations built on dialogue and mutual respect and requests the Government to keep it informed of the results of the negotiations.
6. 133. Concerning the alleged violation of the right to bargain collectively by the Tulua Power Company, the Committee notes that, as the parties had been unable to reach an agreement, an Arbitral Tribunal was constituted and issued an award, which was being implemented. Under the circumstances, the Committee will not pursue its examination of this allegation.
7. 134. With regard to the alleged violation of the right to bargain collectively by the Pacific Power Company, the Committee observes that both the complainant and the enterprise have complained that the other party was unwilling to engage in dialogue or conclude agreements. The Committee also notes that, when no agreement had been reached, an Arbitral Tribunal was constituted and that the award led the enterprise to bring an annulment appeal, which is pending before the Labour Chamber of the Supreme Court. In this connection, the Committee recalls that both employers and trade unions should negotiate in good faith and make every effort to come to an agreement, and that satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence [see Digest, op. cit., para. 936]. Moreover, since systematic recourse to the courts during collective labour relations does not foster the development of a climate of trust between the parties, the Committee urges the complainant and the enterprise to consider the use of domestic conciliation mechanisms in order to resume the dialogue. The Committee requests the Government to keep it informed of developments in the situation and of the outcome of the appeal for annulment of the arbitral award.

The Committee’s recommendations

1. 135. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the allegation of violation of the right to bargain collectively by the Quindío Power Company, the Committee encourages the complainant and the enterprise to deepen their efforts, begun in 2014, to establish relations built on dialogue and mutual respect and requests the Government to keep it informed of the results of the negotiations.
   • (b) With regard to the allegation of violation of the right to bargain collectively by the Pacific Power Company, the Committee invites the complainant and the enterprise to consider the use of domestic conciliation mechanisms in order to resume the dialogue.
   • (c) The Committee requests the Government to keep it informed of developments in the situation and of the outcome of the appeal for annulment of the arbitral award.