Report in which the committee requests to be kept informed of development - Report No 380, October 2016

Case No 3097 (Colombia) - Complaint date: 04-JUN-14 - Follow-up

Allegations: The complainant organization reports violations of the right to strike and to engage in collective bargaining by the Ministry of Labour and the Colombian courts in connection with collective disputes in several enterprises in the mining sector

1. 305. The complaint is contained in a communication dated 4 June 2014 from the National Union of Mining, Petrochemical, Bio-Diesel Fuels and Energy Industry Workers (SINTRAMIENERGETICA).
2. 306. The Government sent its observations in a communication dated 22 May 2015.
3. 307. 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), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

First collective dispute

1. 308. The complainant organization alleges, first, the violation of the right to strike and to engage in collective bargaining in connection with a collective dispute that occurred in the Drummond Ltd enterprise. The complainant organization states specifically that: (i) SINTRAMIENERGETICA is the majority trade union in the enterprise, as it has over 50 per cent of the workers in the enterprise as members; (ii) a series of collective labour agreements have been signed between the enterprise and the trade union; (iii) in accordance with the legislation in force, SINTRAMIENERGETICA denounced the existing collective agreement and submitted a new set of claims, the negotiation (direct settlement phase) of which began on 28 May 2013; (iv) the direct settlement phase was extended on 17 June 2013 and ended on 7 July 2013 with no agreement reached; (v) in accordance with the legislation in force, SINTRAMIENERGETICA, as the majority trade union, called a meeting of trade union members to decide whether to declare a strike or to submit the dispute to an arbitration tribunal; (vi) the majority of the trade union members opted to call a strike, which started on 23 July 2013; (vii) on 23 August 2013, a group of 47 non-unionized workers informed the Ministry of Labour that a general meeting of workers from the enterprise would be held on 29, 30 and 31 August 2013, to determine whether to continue with the strike or to settle the dispute through an arbitration tribunal; (viii) despite the fact that SINTRAMIENERGETICA was the sole party to the collective dispute and therefore the only party entitled to end the strike, the Ministry of Labour ordered, by means of Decision No. 3256 of 2013, the establishment of a compulsory arbitration tribunal in the enterprise; (ix) SINTRAMIENERGETICA filed an appeal for the reversal of the decision, which was rejected by a new decision dated 5 November 2013, and on 9 December 2013, an order was given for a referral to a compulsory arbitration tribunal, which clearly violated the trade union autonomy protected under the ILO Conventions; and (x) despite the fact that the strike was called in conformity with the law, the High Court of Valledupar declared it illegal in a ruling of 19 February 2014, against which SINTRAMIENERGETICA filed an appeal.

Second collective dispute

1. 309. Second, the complainant organization claims that the same enterprise filed a multi-million dollar (US$6,260,219.28) lawsuit against the National Union of Workers in the Metal Engineering, Machinery, Metallurgical, and Railways Industry and in the Allied Distribution and Transport Sector (SINTRAIME) trade union organization to compensate for the alleged damages incurred during a work stoppage in March 2013. The complainant organization adds that the acts that gave rise to the legal action are a normal part of the relations between workers and employers, and thus the enterprise is using intimidation to discourage the future exercise of collective rights.

Third collective dispute

1. 310. Third, the complainant organization alleges the violation of the right to strike and to engage in collective bargaining, in connection with a collective dispute in the Carbones de La Jagua SA enterprise. In this regard, the complainant organization states specifically that: (i) SINTRAMIENERGETICA is the majority trade union in the enterprise, which is engaged in the mining and agglomeration of coal; (ii) the collective agreement signed by the enterprise and the trade union organization, which expired on 30 April 2012, was denounced by both parties; (iii) as a result of the failure of the parties to reach an agreement during the direct settlement phase, the trade union, in accordance with the legislation in force, voted in favour of calling a strike, which took place in July 2012; (iv) the enterprise initiated legal action, alleging that the work stoppage had been illegal; (v) the place of work, the La Jagua open-pit coal mine, is run by three enterprises owned by Glencore: Carbones de La Jagua SA, which was acquired in 2005; Consorcio Minero Unido SA, which was acquired in 2006; and Carbones El Tesoro SA, which was acquired in 2007; (vi) while, on the date that the legal action was launched, the plaintiff enterprise had stated that the three enterprises did not form a single business entity, shortly afterwards Glencore merged them into one entity; and (vii) the enterprise alleged before the court that the strike had not been conducted peacefully, as the power had been cut off in the enterprise, the access routes to “other enterprises” had been blocked, the workers had taken over the premises of the enterprise in a violent manner, and the workers’ accommodation had been looted.
2. 311. The complainant organization also states that the plaintiff enterprise added that the trade union had breached the physical boundaries between the three enterprises, thus impeding the operations of enterprises that were not involved in the dispute. Nevertheless, SINTRAMIENERGETICA successfully proved that the three mining enterprises worked together, that there were no clear physical boundaries separating them, and that they shared the same administrative and operative staff (including the same head of human resources management), and that therefore it could not be claimed that the three mining enterprises were independent, and it was materially impossible for the work stoppage not to affect the activities of all three enterprises, given the overlap between them. The enterprise also alleged that the trade union organization had refused to accept a contingency plan that would have enabled the fundamental activities of the enterprise to be maintained, despite the fact that SINTRAMIENERGETICA had submitted a corresponding proposal on 27 July 2012, which was not signed by the enterprise.
3. 312. The complainant organization notes that, by means of an order of 27 August 2012, the High Court of Valledupar, after having examined in detail all of the evidence, declared that the strike had been legal. The court found that, even though there had been some tension, which was normal for this type of dispute, the strike had been carried out peacefully and no evidence of the alleged acts had been presented.
4. 313. The complainant organization states that by a ruling of 10 April 2013, the Supreme Court of Justice reversed the lower court’s decision and declared that the work stoppage had been illegal. The complainant organization alleges specifically that the Supreme Court of Justice did not carry out a legal analysis of the structure of the single business entity and that it took into account testimonies of alleged acts of violence which had not been deemed valid by the High Court of Valledupar. The complainant organization also alleges that the Supreme Court of Justice carried out a partial and biased analysis of the evidence, in so far as it: (i) prioritized consideration of the sections of statements from which strong tensions could be inferred; (ii) paid little attention to the statements that indicated that the strike had been peaceful; and (iii) failed to recognize the records produced by officials from the Ministry of Labour that formed the basis for the lower court’s decision.
5. 314. The complainant organization concludes the presentation of its allegations by stating that the examples described are contrary to trade union autonomy, the right to strike and the promotion of collective bargaining, and thus violate ILO Conventions Nos 87, 98 and 154, which Colombia has ratified.

B. The Government’s reply

First collective dispute

1. 315. In a communication dated 22 May 2015, the Government refers, first of all, to the collective dispute between the trade union organization SINTRAMIENERGETICA and the Drummond Ltd. enterprise, and forwards the response from the enterprise. With regard to the claim that the strike action initiated by SINTRAMIENERGETICA was ended through a ballot held by a group of non-unionized workers, the enterprise states that: (i) the decision to stop the strike action and to request a referral to an arbitration tribunal was made by the majority of the workers in the enterprise, and that the enterprise was not directly involved in the ballot; (ii) SINTRAMIENERGETICA demonstrated a lack of good faith throughout the negotiations, as it rejected repeated offers by the enterprise to increase bonuses for signing the collective agreement and to increase wages; (iii) on 6 August 2013, the Deputy Minister of Labour Relations called a meeting between the enterprise and the three trade unions involved in the dispute (SINTRAMIENERGETICA, SINTRADRUMMOND and AGRETRITRENES), and SINTRAMIENERGETICA declined to attend the meeting; (iv) the complainant organization does not explain why the decision by the majority of workers from the enterprise to refer the dispute to the arbitration tribunal violated ILO Conventions Nos 87 and 98, nor does it question the ballot process. From a more general perspective, the enterprise considers that the referral to the arbitration tribunal was not contrary to the principles of freedom of association and collective bargaining, given that it was not imposed by the administrative authorities or by the employer, but rather was the result of a democratic decision by the workers, and this solution was accepted rather than questioned by the enterprise.
2. 316. The enterprise refers secondly to the declaration that the strike carried out by SINTRAMIENERGETICA from 23 July to 13 September 2013 was illegal. The enterprise states that the non-peaceful nature of the work stoppage, particularly on the day on which the workers of the enterprise voted on whether to continue with the strike action, was the reason for the decisions of both the High Court of Valledupar and the Supreme Court of Justice, which were founded on, inter alia, the recommendations of the Committee on Freedom of Association.
3. 317. The Government goes on to provide its own observations on the dispute between the first enterprise and SINTRAMIENERGETICA. It indicates that, as a result of the failure to achieve consensus on the signing of a new collective agreement, the workers of the enterprise opted to call a strike. During the strike, the Ministry of Labour, which had made available its good offices to ensure the continuation of negotiations, was informed by a group of 47 workers that a general meeting of workers would be held to determine whether to pursue the strike action or to request a referral to an arbitration tribunal. The labour inspectorate was able to confirm that the majority of workers were in favour of a referral to an arbitration tribunal, which was established through a decision dated 13 September 2013. The Government also indicates that: (i) such action was in line with article 445.2 of the Substantive Labour Code, according to which “during a strike, the majority of workers at the enterprise or of the general assembly of members of the trade union or unions that together represent more than half of those workers shall determine whether to refer the dispute to an arbitration tribunal”; and (ii) the appeal for the protection of fundamental rights (tutela) filed by the trade union organization against the decision of the Ministry of Labour was rejected at first instance and on appeal.

Second collective dispute

1. 318. The Government provides the reply of the enterprise regarding the allegation that the enterprise was taking multi-million dollar (US$ 6,260,219.28) legal action against SINTRAIME to compensate for the alleged damages incurred during the work stoppage. The enterprise states that: (i) between 14 March and 26 March 2013, SINTRAIME blocked the entrances to several mines owned by the enterprise, as well as the public roads leading to them; (ii) these actions also included intimidation of employees from the enterprise and from subcontractor enterprises who wished to exercise their freedom to work; (iii) this violation of the freedom to work was noted on repeated occasions by the labour inspectorate; (iv) SINTRAIME’s illegal actions caused serious economic losses to the enterprise and undermined the intention of maintaining a relationship of trust between the parties; and (v) in this regard, the legal action initiated by the enterprise is not an act of aggression and does not intend to discourage the exercise of freedom of association.

Third collective dispute

1. 319. With regard to the collective dispute between the SINTRAMIENERGETICA trade union organization and the Carbones de La Jagua SA. enterprise, the Government forwards the reply from the enterprise, which states that: (i) the strike called by SINTRAMIENERGETICA in July 2012 was declared illegal on the grounds that acts of violence were carried out during the work stoppage and the enterprise was occupied, which violated the provisions of the Substantive Labour Code and impeded the implementation of a contingency plan to ensure safety on the premises; (ii) the violence exercised by the striking workers affected not only the enterprise but also third parties that were not involved in the dispute; (iii) in a report dated 15 August 2012, the Labour Inspectorate of Curumani noted the aggressive behaviour of the branch president of SINTRAMIENERGETICA; (iv) the trade union organizations of Colombia had been claiming for many years that the courts are responsible for declaring a strike illegal, which means accepting court decisions that do not favour the interests of trade unions; and (v) the ruling of the Supreme Court has been subject to two appeals for the protection of fundamental rights (tutela) filed before the Criminal Appeals Chamber of the Supreme Court of Justice and the District Council of the Judiciary.
2. 320. The Government then provides its own observations regarding the dispute, stating that the decision of the High Court of Valledupar which recognized the legality of the work stoppage carried out by SINTRAMIENERGETICA was reversed by the Supreme Court of Justice through a ruling of 10 April 2013, and that that ruling was based on the fact that acts of violence were committed during the strike, in accordance with the principles of the Committee on Freedom of Association.

The Committee’s conclusions

1. 321. The Committee observes that, in this case, the complainant organization alleges that the Ministry of Labour and the Colombian courts violated the right to strike and to engage in collective bargaining in the context of three collective disputes in the mining sector.

First collective dispute

1. 322. The Committee notes that the complainant organization refers first of all to a collective dispute between the Drummond Ltd enterprise and SINTRAMIENERGETICA, in which the trade union organization, which is the majority union in the enterprise, decided, in response to the lack of agreement over the renegotiation of the enterprise’s collective agreement, to call a strike, which began on 23 July 2013. The complainant organization alleges, first, that the Ministry of Labour violated its trade union autonomy and its right to strike by stopping the strike and referring the matter to an arbitration tribunal after 47 non-unionized workers held a general meeting on 23 August 2013, of all the workers in the enterprise, who voted in favour of ending the strike and referral to an arbitration tribunal. The complainant organization states that, given that the strike was called by SINTRAMIENERGETICA, it was the sole party to the dispute and thus the only party entitled to end the work stoppage.
2. 323. In this regard, the Committee notes the concurring replies from the enterprise and the Government, in which they state that: (i) under Colombian legislation (article 444.2 of the Substantive Labour Code), a strike may be declared either by the majority trade union organizations (through a vote by an assembly of their members) or the absolute majority of the workforce in an enterprise; (ii) similarly, the Substantive Labour Code (articles 445.2 and 448) establishes that both the majority trade union organization and the majority of the workforce of an enterprise can end the strike action while it is under way and request the referral to an arbitration tribunal; (iii) the complainant organization has not alleged that the ballot held by all of the workers of the enterprise gave rise to irregularities; and (iv) the appointment of an arbitration tribunal in this case was fully in line with legal provisions, as demonstrated by the court rulings that rejected the union’s appeal for the protection of fundamental rights (tutela).
3. 324. Regarding the first allegation, the Committee notes that the complainant organization, the enterprise and the Government agree on the sequence of events and that the regularity of the vote by the majority of the workers to end the strike action was not questioned by the complainant organization. The Committee observes, however, that this first aspect of the complaint involves determining whether or not the fact that a vote by all of the workers in the enterprise ended the strike called by SINTRAMIENERGETICA is contrary to the principles of freedom of association. The Committee notes that, under Colombian legislation: (i) both a majority trade union organization and an absolute majority of the workforce in an enterprise may call a strike (article 444.2 of the Substantive Labour Code) and also end a strike that is under way, as well as request the appointment of an arbitration tribunal (articles 445.2 and 448 of the Substantive Labour Code); and (ii) the declaration of a strike has an effect – in particular the suspension of employment contracts – on all workers, regardless of whether they are members of a trade union, or whether they have voted in favour of the strike (article 448.2 of the Substantive Labour Code). In these specific circumstances, the Committee considers that the majority vote in favour of putting an end to strike action and regulating the appointment of an arbitration tribunal, is not contrary to the principles of freedom of association.
4. 325. In the context of the same collective dispute, the Committee notes the complainant organization’s allegation that the Colombian courts violated Convention No. 87 and the principles of freedom of association by declaring illegal the strike action initiated by SINTRAMIENERGETICA on 23 July 2013. The Committee notes in this regard that the enterprise states that both the High Court of Valledupar and the Supreme Court of Justice declared the strike illegal on the grounds that acts of violence were committed during the work stoppage. Observing that the complainant organization does not indicate in what manner those rulings violated the principles of freedom of association, the Committee will not pursue its examination of this allegation.

Second collective dispute

1. 326. The Committee notes the complainant organization’s allegation that the Drummond Ltd enterprise is taking multi-million dollar legal action (US$6,260,219.28) against SINTRAIME seeking compensation for the alleged losses incurred during a work stoppage carried out in March 2013. The Committee also notes that the complainant organization adds that the acts that gave rise to the legal action are a normal part of the relations between workers and employers, and that the enterprise therefore intended to use intimidation to discourage the future exercise of collective rights. The Committee also notes the reply from the enterprise, forwarded by the Government, according to which, between 14 and 26 March 2013, SINTRAIME carried out a work stoppage during which it conducted acts of intimidation and blocked transportation routes, thus violating the freedom to work of employees from the enterprise and the subcontractor enterprises, and causing serious economic losses to the enterprise. Noting that the Government has not provided its observations on this allegation, and emphasizing that the penalties imposed in cases of abusive strikes should not discourage the legitimate exercise of trade union rights, the Committee requests the Government to keep it informed of developments in the legal action initiated by the enterprise against SINTRAIME.

Third collective dispute

1. 327. The Committee notes that the complainant organization refers lastly to the declaration by the Supreme Court of Justice that the strike carried out by SINTRAMIENERGETICA in July 2012 in the Carbones de La Jagua SA enterprise was illegal. The Committee particularly notes that the complainant organization alleges that: (i) unlike the High Court of Valledupar, which had found the strike to be peaceful and declared it legal, the Supreme Court of Justice had examined the available testimonies in a partial and biased manner and concluded that the strike had not been carried out peacefully; and (ii) the Supreme Court of Justice had not taken into account reports of officials from the Ministry of Labour who were present at the time of the events, which attested to the peaceful nature of the strike.
2. 328. The Committee also notes that the Government and the enterprise both indicate that the ruling by the Supreme Court of Justice which reversed the decision by the High Court of Valledupar and declared the strike illegal was issued, in accordance with the principles of the Committee on Freedom of Association, on the grounds that several acts of violence had been committed at the beginning of the strike and the workplace had been illegally occupied throughout the work stoppage. The Committee notes lastly that the ruling by the Supreme Court of Justice was subject to two appeals for the protection of fundamental rights (tutela) before the Criminal Appeals Chamber of the Supreme Court of Justice and the District Council of the Judiciary.
3. 329. Based on the text of the rulings of the court of first instance and the Supreme Court provided by both the complainant organization and the Government, the Committee notes firstly that the High Court of Valledupar found, primarily on the basis of the inspection reports of the labour inspectorate, that: (i) the work stoppage had been conducted peacefully; (ii) even though there had been arguments and situations of tension at the start of the strike, such occurrences were normal, as strikes were a tool used to exert pressure which could lead to this type of confrontation; (iii) the presence of some workers on the mine premises did not make the strike illegal, as the entry of management staff had not been impeded, no acts of aggression had been instigated by the trade union, and the presence of workers had allowed for the enterprise premises to be protected in the absence of agreement on a contingency plan. The Committee further observes that the Supreme Court of Justice considered that: (i) its analysis had to be based on articles 446 and 450(f) of the Substantive Labour Code, pursuant to which strikes must be carried out in an orderly and peaceful manner, and any collective suspension of work that is not peaceful is illegal; (ii) contrary to the finding of the High Court of Valledupar, the testimonies of two workers from the enterprise had to be taken into account, as they did not hold management posts or positions of trust; (iii) the fact that the work stoppage was carried out in a normal and peaceful manner as from its second day does not excuse certain acts of violence that occurred on the first day; and (iv) the enterprise premises were illegally occupied by unionized workers throughout the work stoppage, and therefore the strike called by SINTRAMIENERGETICA had not simply been a peaceful suspension of work and had to be declared illegal.
4. 330. The Committee observes that the way in which the strike developed in the enterprise was considered differently by the labour inspectorate and the different courts involved, and that two appeals for the protection of fundamental rights (tutela) relating to the case are still pending before the Criminal Appeals Chamber of the Supreme Court of Justice and the District Council of the Judiciary. The Committee requests the Government to keep it informed of the outcome of the aforementioned appeals for the protection of fundamental rights (tutela).

The Committee’s recommendations

1. 331. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The first collective dispute does not call for further examination.
   • (b) With respect to the second collective dispute, the Committee requests the Government to keep it informed of developments in the legal action taken by the enterprise against SINTRAIME.
   • (c) With respect to the third collective dispute, the Committee requests the Government to keep it informed of the two appeals for the protection of fundamental rights (tutela) pending before the Criminal Appeals Chamber of the Supreme Court of Justice and the District Council of the Judiciary in relation to the strike carried out by SINTRAMIENERGETICA.