Report in which the committee requests to be kept informed of development - Report No 393, March 2021

Case No 3316 (Colombia) - Complaint date: 02-APR-18 - Follow-up

Allegations: The complainant organizations allege violations of the right to collective bargaining in Avianca S.A. through the use of collective accords, the denial of the right of the enterprise’s pilots to go on strike, as well as a series of anti-union acts following the ruling that the strike held by the Colombian Association of Civil Aviators was illegal

1. 158. The complainants sent their allegations in communications dated 17 April, 29 and 31 May, 4 June, and 1 and 31 October 2018; 11 January, 1 April, 15 and 21 May, 21 June and 26 August 2019; 7 and 11 February and 2 March 2020, 14 and 21 January 2021.
2. 159. The Government sent its observations in communications dated 24 April, 13 June and 3 September 2019, 21 February, 3 and 31 March, 12 September and 23 December 2020 and 17 February 2021.
3. 160. 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

1. 161. In a communication in April 2018, the Single Confederation of Workers of Colombia (CUT) and the Colombian Association of Civil Aviators (ACDAC) allege that the airline Avianca (hereinafter “the enterprise”), with the complicity and acquiescence of the public authorities, is violating the rights to freedom of association, collective bargaining and strike of civil aviators affiliated to the ACDAC through, among other activities: (i) acts of anti-union discrimination; (ii) the signing of collective accords with non-unionized aviators, the contents of which discriminate against unionized workers and the existence of which has an impact on union membership and the exercise of the right to collective bargaining; (iii) the refusal to bargain collectively with the trade union; (iv) undue interference by the authorities in the strike by appointing an arbitration tribunal; (v) the replacement of the striking pilots by foreign pilots; (vi) the unlawful ruling that the strike held by the trade union was illegal; (vii) violations of due process to the detriment of the trade union organizations; (viii) mass dismissals and penalties imposed against union members; and (ix) the danger that the trade union would face dissolution for having exercised the right to strike.
2. 162. The complainant organizations indicate that: (i) the ACDAC is a first-level trade union organization established in 1949 that groups together aviators from various Colombian aviation companies and several companies specializing in aerial spraying activities; (ii) the ACDAC signs different collective work agreements with each aviation company, whose clauses are included in the employment contracts of the pilots belonging to the trade union; (iii) with respect to the enterprise that is the subject of the complaint, the ACDAC is recognized as a single occupation union , in accordance with clause 1 of the collective work agreement in force; (iv) before the collective dispute that is the subject of the present case began, the ACDAC had as members 702 workers of the airline enterprise; and (v) since the establishment of the ACDAC, the trade union organization and the airline enterprise have signed several collective agreements recognizing the non-statutory rights of the aviators belonging to the ACDAC.
3. 163. The complainant organizations also describe a series of events related to collective bargaining procedures between the ACDAC and the airline enterprise dating back to 2013. They state in this respect that: (i) a group of non-unionized aviators, on the one hand, and the ACDAC, on the other, decided to request the enterprise to review its working conditions through a public collective bargaining process that began in March 2013; (ii) the management of the enterprise put pressure on the non-unionized workers to reach an agreement involving the signing of a collective accord (pacto colectivo) classified as a “voluntary benefit plan”. The unionized workers were left without an agreement and discriminated against owing to the inequality resulting from the recognition of better rights for non-unionized workers; (iii) on 22 March 2013, the ACDAC informed the enterprise in writing of its intention to partially denounce the collective work agreement in force; (iv) on 17 December 2013, the ACDAC officially submitted its list of demands but the enterprise refused to negotiate with the ACDAC; (v) the ACDAC lodged an action for protection of rights, which resulted in a favourable outcome for the ACDAC and required the enterprise to sit at the negotiating table; (vi) owing to the enterprise’s refusal to examine the list of demands, an agreement was not reached, which is why the trade union’s general assembly decided to refer the matter to an arbitration tribunal; (vii) on 30 April 2014, the Ministry of Labour ordered an arbitration tribunal to be set up, a decision contested without success by the enterprise; (viii) through ruling No. T-069 of 18 February 2015, the Constitutional Court ordered the enterprise to extend the same benefits and increases set out in the voluntary benefit plan to the unionized workers and to refrain from laying down conditions that discourage workers from joining or remaining in the trade union; (ix) on 5 October 2015, the ACDAC communicated to the Ministry of Labour its decision to withdraw its list of demands submitted on 17 December 2013 owing to irregularities observed during the dispute and because the arbitration tribunal was not providing any guarantee of a genuine ruling of equity; (x) on 8 August 2017, the ACDAC submitted a fresh list of demands, the direct settlement stage began on 23 August 2017 and concluded on 11 September 2017, with no agreement being reached between the parties; (xi) with the possibility of reaching an agreement having failed, the trade union decided to resort to strike action, which began on 20 September 2017 and was joined by 702 pilots belonging to the ACDAC, of the 1,200 pilots working for the enterprise; (xii) on 28 September 2017, through ruling No. 3744 of 2017, the Minister of Labour, exceeding her legislative authority and without being requested to do so, ordered a compulsory work arbitration tribunal to be set up, asserting that air transport is an essential public service and, as such, a strike cannot be held (the convening of the arbitration tribunal was legally contested by the ACDAC claiming an infringement of its fundamental rights, a legal action which is still pending); (xiii) on 3 October 2017, the Civil Aviation Authority authorized the enterprise to contract foreign pilots to cover the air routes cancelled on account of the exercise of the right to strike; (xiv) the Public Prosecutor’s Office summoned a hearing bringing charges against the president of the trade union following a complaint lodged by the enterprise at the beginning of that year for the alleged offence of economic panic; (xv) on 6 October 2017, the Bogota High Court ruled in first instance that the strike held by the ACDAC was illegal, a decision that was appealed by the trade union; (xvi) on 31 October 2017, the Ombudsman summoned the enterprise to try to mediate in the labour dispute, a proposal that was declined by the enterprise, which indicated that it was awaiting the decision of the arbitration tribunal; (xvii) on 10 November 2017, the strike action came to an end after 51 days following a decision by the general assembly of the ACDAC; (xviii) the enterprise then proceeded to send those pilots who were trade union leaders on permanent leave to prevent them from returning to the enterprise; (xix) on 29 November 2017, the Labour Appeals Chamber of the Supreme Court upheld in second instance the ruling that the strike was illegal because, in the Chamber’s view, it concerned an essential public service and because it did not receive the majorities required for the ballot, both of which are criteria that run counter to the Political Constitution and ILO Convention No. 87, as well as the recommendations of the ILO supervisory bodies; (xx) on 14 February 2018, the Labour Appeals Chamber of the Supreme Court rejected the applications for nullity, clarification and addition filed separately by the ACDAC and the CUT; (xxi) from 26 February 2018, the enterprise began more than 230 disciplinary proceedings against the unionized pilots for taking part in the strike; during those proceedings, the enterprise prevented the pilots from having the assistance of a lawyer or trade union leaders while the various dismissal hearings were simultaneously being held; (xxii) by 6 April 2018, 112 pilots had been penalized through a suspension of their contracts, 116 had been dismissed, including five national union leaders and 23 union leaders of subcommittees; and (xxiii) the trade union leaders who had been dismissed received a letter from the enterprise stating that: “The enterprise reserves the right to impose material consequences on you for the illegal action that you led as a member of the executive board of the ACDAC.”
4. 164. The complainant organizations further state that the principal objective of a trade union organization is the development of the right to collective bargaining and it is for this reason that when it is not possible to reach an agreement, workers have the possibility of exercising their right to strike. They denounce the fact that civil aviators in Colombia are being denied this right on the basis of the mistaken allegation that they provide an essential public service, demonstrating a complete disregard by the Government of considerations of what is “essential in the strict sense” as expressed by the Committee on Freedom of Association, through its decisions and the ILO Conventions ratified by Colombia that form part of the body of constitutional law. The complainants state that the facts described in the above paragraphs constitute a violation of Articles 2, 3 6 and 8 of Convention No. 87, Articles 1, 3 and 4 of Convention No. 98 and Articles 3, 4 and 6 of Convention No. 154.
5. 165. The complainants also list the various violations of freedom of association to which the ACDAC was subjected in its relations with the enterprise. They refer firstly to the setting up of an arbitration tribunal by the Ministry of Labour to resolve the collective dispute, ignoring the ILO’s rules, in particular Article 6 of Convention No. 154 concerning the voluntary participation of parties in collective bargaining, and conciliation and arbitration mechanisms. They state in this respect that: (i) the Ministry of Labour convened the arbitration tribunal based on the mistaken idea that the strike action was being held by an essential public service and was also having a serious impact on the national economy, ignoring the fact that 43 other air passenger transport companies exist in Colombia, 37 of which are foreign companies, which is why a violation of the fundamental rights of citizens could not possibly have occurred because the enterprise that is the subject of the complaint is merely one among other passenger transport companies; (iii) the Government did not take measures to protect the rights to freedom of association, collective bargaining and strike during the collective dispute because priority was given to the good offices not to facilitate collective bargaining but rather to intervene in the dispute in order to bring judicial proceedings.
6. 166. Secondly, the complainants assert that the ruling that the strike held by the ACDAC was illegal, based on the twofold reasoning that air transport constitutes an essential public service and that the occupation-based nature of the strike held by the enterprise’s pilots should be approved by the majority of all the enterprise’s workers, is contrary to the ILO’s principles. They state in this respect that: (i) air transport in Colombia does not meet the criteria established by the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations (CEACR) on defining essential public services in the strict sense; (ii) both the Committee on Freedom of Association and the CEACR have repeatedly drawn attention to specific cases where air transport does not constitute an essential public service in the strict sense; and (iii) the Committee on Freedom of Association and the CEACR have also emphasized that the requirement for excessive majorities in order to declare a strike could place a substantial limitation on the means of action open to trade union organizations.
7. 167. Thirdly, the complainants refer to the contracting of foreign pilots during the strike through an intervention by the Civil Aviation Authority. They state in this respect that: (i) a fundamental requirement to enable the exercise of the right to strike is the prohibition of “esquirolaje” [promoting, permitting or guaranteeing the replacement of staff] and therefore the provision of a guarantee from the enterprise to the trade union organizations that it will not contract other workers to replace them; and (ii) the decision adopted through Civil Aviation Authority ruling No. 03033 amending the regulation in order to allow foreign pilots to be contracted, thereby replacing the workers on strike, is contrary to the State of Colombia’s obligations with respect to the right to freedom of association and trade union rights.
8. 168. Fourthly, the complainants allege that the judicial authorities that ruled on the legality of the strike ignored the CUT’s rights to representation, denying it both in first and in second instance the ability to act as an added party to the ACDAC, the defendant in the proceedings. They state in this respect that the courts incorrectly required the CUT to prove substantial and concrete involvement in the proceedings and, in violation of the ILO’s rules, failed to recognize the trade union representativeness, autonomy and legitimacy of the CUT to defend the fundamental guarantees of freedom of association in all necessary forums.
9. 169. Fifthly, the complainants allege that, during the strike, the enterprise’s largest shareholder repeatedly referred to the strikers as “criminals and extortionists” which, in the light of the serious context of violence in Colombia, gives rise to risks to the personal safety and life of the members of the ACDAC and results in other workers refraining from exercising their rights for fear of reprisals by their employer. The complainants also state that the acts of stigmatization, criminalization and slander against the trade union and its leaders did not end when the strike action stopped but increased during the dismissals following the strike, including: the launching by the Public Prosecutor’s Office of criminal proceedings against the union leaders for the alleged offences of obstructing the course of justice, promoting public smear campaigns through alleged misappropriation of the trade union’s funds, involving charges of corruption, tax evasion and several types of denigration in widely circulated media.
10. 170. Sixthly, the complainants denounce the fact that section 450 of the Substantive Labour Code authorizes the dissolution of the trade union and the dismissal of unionized workers participating in the strike that was declared illegal, even though this judicial declaration is contrary to the principles of the ILO. They add that this provision contradicts the repeated recommendations of the CEACR on the matter.
11. 171. The complainant organizations also refer to a previous complaint submitted against the enterprise in 2004 and examined by the Committee in Case No. 2362. They indicate that the case refers to anti-union dismissals in the context of a restructuring process, the rehiring of dismissed workers through labour cooperatives, depriving them of coverage under the collective agreement concluded with the business group, threats against trade union leaders, failure to comply with the collective agreement, the conclusion of a collective accord and pressure on individuals to adhere to it, dismissals of trade union leaders and non-compliance with a collective agreement. The complainants request that the allegations in that case and the related conclusions of the Committee be taken into account as the background to the present dispute and as evidence of the enterprise’s anti-union activities and of the Government’s responsibility in the continued violation of rights.
12. 172. The complainant organizations further provide a list of numerous administrative and legal actions initiated by them in relation to the present dispute, indicating the status of each one. They refer in particular to their frustrated attempt to resolve the dispute through conciliation before the Special Committee for the Handling of Disputes referred to the ILO (CETCOIT). They state in this respect that: (i) the request to refer the dispute to the CETCOIT was submitted by the trade union organizations on 12 October 2017; (ii) the aim of that initiative was to overcome the excessive use of judicial action in the collective dispute; and (iii) however, in late 2017, the Employer representatives of the CETCOIT maintained the position that the dispute should be heard in the judicial proceedings already under way and that the case should not be dealt with by the CETCOIT, a position supported by the representatives of the Government who also refused to admit the case on the ground that the enterprise would not wish to resolve the dispute before that body.
13. 173. On the basis of the above, the CUT and the ACDAC request the Committee on Freedom of Association to make recommendations to the State of Colombia with a view to: (i) deleting section 450 of the Substantive Labour Code, which provides that employers can dismiss workers who have taken part in a strike, once the strike has been declared illegal, since it is an excessive measure that discourages trade union action; (ii) reviewing the Substantive Labour Code so that the characteristics of essential public services are aligned with the criteria established by the ILO supervisory bodies and in such a manner that air transport is not included as an essential public service; (iii) preventing the application of the legal effects of the ruling that the strike action was illegal because the strike was held in conformity with national standards that are contrary to international labour standards and recommendations of the ILO supervisory bodies on the matter; (iv) the enterprise rehiring the workers who took part in the strike, who were dismissed following the ruling that the strike was illegal, in violation of the recommendations of the ILO, and restoring the rights of the penalized workers; (v) the Ministry of Labour henceforth refraining from setting up arbitration tribunals that have not been requested by the parties to the dispute; (vi) the Civil Aviation Authority and all other national public bodies henceforth refraining from taking any action aimed at promoting, permitting or guaranteeing the replacement of striking staff members (esquirolaje); (vii) the Government and the national prosecuting or judicial authorities terminating the criminal proceedings in progress against the members of the ACDAC for reasons related to the exercise of trade union activity; (viii) preventing the dissolution of the trade union for reasons related to the strike; (ix) preventing any material repercussions on the trade union and its members for matters related to the strike; and (x) guaranteeing an end to all anti-union action.
14. 174. In a communication dated 17 April 2018, the Colombian Association of Flight Attendants (ACAV) and the Union of Air Transport Workers of Colombia (SINTRATAC) indicate their wish to be joined to the complaint submitted by the CUT and the ACDAC. Both organizations state that their members have, with the complicity of the State, also fallen victim to the enterprise’s anti-union policy, and specifically that: (i) the enterprise discriminates against the members of their organizations; (ii) similarly to the situation involving the pilots belonging to the ACDAC, the enterprise ignores the signed collective agreements and attempts to impose the collective accord concluded with the non-unionized workers on its other categories of workers; (iii) the State has not taken decisive action to sanction the enterprise, as an exemplary case, for its indiscriminate application of collective accords despite the existence of trade unions within the enterprise; (iv) the failure to implement the recommendations of the ILO supervisory bodies on collective accords has resulted in an end to collective bargaining with the trade unions and its replacement with accords signed by a minority of non-unionized workers; (v) the State of Colombia has not provided judicial guarantees of due process to the striking pilots belonging to the ACDAC; (vi) the State of Colombia has violated the right to strike of the pilots belonging to the ACDAC in view of the fact that transport in general and air transport in particular do not constitute an essential public service. On the basis of the above, the ACAV and the SINTRATAC request the Committee to protect, as a matter of urgency, the trade union rights of the enterprise’s pilots, flight attendants and cabin crew who have been threatened because of the above-mentioned collective accords.
15. 175. In a communication dated 31 May 2018, the CUT and the ACDAC provide additional information on the alleged anti-union nature of the collective accord concluded by the enterprise with the non-unionized pilots. They state that the recommendations addressed to Colombia by the Committee and the CEACR to prevent collective bargaining with non-unionized workers in enterprises where trade unions exist have been ignored by the Government. They allege that the above is demonstrated by the situation at the enterprise in which the Ministry of Labour not only took no action to prevent the enterprise from signing and imposing collective accords that have a serious impact on freedom of association and the right to collective bargaining but even fostered such accords. They state that, by acting in that manner, the Ministry of Labour not only ignored Conventions Nos 87 and 98 but also ruling No. T-069 of 2015 concerning the collective accord concluded with the enterprise in 2013 and in which the Constitutional Court not only ordered the benefits contained in the collective accord to be paid to the unionized workers, but also called for freedom of association and collective bargaining to be respected, in line with Conventions Nos 87 and 98.
16. 176. The complainants state specifically that: (i) the enterprise, together with the Organization of Avianca Aviators (ODEAA), which is a civil association and not an employing organization, colluded to promote collective accords applicable to non-unionized pilots that discriminate against unionized pilots and that seek to amend the collective agreement in force with the ACDAC; (ii) the enterprise and the ODEAA signed a collective accord in March 2017; (iii) the new accord abusively reproduces the content of the collective agreement, while changing a number of clauses (concerning additional crew (termed “tripadi”), days off, overnight stays, multi-crew use, food allowances, time spent in airports, assigning flights on 25 December and 12 January, educational assistance, housing funds, trade union leave, airfares for members of the executive board, annual assistance granted by the enterprise to the organization, the roster of pilots and co-pilots, the classification of crews, occupational diseases, long-service bonuses, monthly salary, assistance for non-absenteeism, navigation bonuses, holiday bonuses, disciplinary proceedings, life insurance, maternity assistance, public transport passes, retirement, medical services and tickets for retirees, uniforms, travel allowances, assistance for permanent transfers, variable compensation, language courses, deductions on behalf of the trade union organization); (iv) despite the fact that the ODEAA is civil, rather than trade union, in nature and that, at the time this communication was sent, only 30 pilots had signed the collective accord, the enterprise and the ODEAA agreed to lie to the media and to the pilots, presenting the ODEAA as the representative of the majority of the enterprise’s pilots, the development of the new accord as being the result of collective bargaining with all the enterprise’s pilots, and the collective accord as a collective agreement (v) the enterprise is insisting on implementing the new collective accord over the collective agreement with respect to the various matters mentioned in point (iii) above; (vi) previously, in October 2013, the enterprise had already concluded a collective accord with the ODEAA (referred to as a voluntary benefit plan), the content of which discriminated against the unionized pilots with respect to a number of aspects; (vii) the enterprise attempted to force the unionized pilots, as well as the flight attendants and ground staff, to accept these changes and, by promoting the new collective accord, discouraged trade union membership among the workers and attempted to deprive the trade unions of their right to collective bargaining; (viii) through ruling No. T-069 of 2015, the Constitutional Court protected the rights of the unionized pilots and flight attendants, ordering the enterprise to: (a) extend to the workers belonging to the ACDAC and those benefiting from the collective agreement the benefits set out in the voluntary benefit plan; (b) provide a guarantee to those workers who had resigned from the ACDAC in order to enjoy the benefits set out in the voluntary benefit plan the possibility of returning to that organization and being governed by the collective agreement without losing the benefits contained in the voluntary benefit plan; and (c) refrain from laying down conditions in collective accords that discriminate against unionized workers, and from adopting policies aimed at discouraging workers from joining or remaining in the trade union; and (ix) the enterprise is not complying with ruling No. T 069 of 2015, as demonstrated above by the content of the collective accord deposited with the Ministry of Labour in March 2017.
17. 177. Having stated that the events described above led the unionized pilots to exercise their right to strike in accordance with ILO doctrine, the complainant organizations request the Committee on Freedom of Association to: (i) require the State of Colombia to take the measures necessary to ensure that the collective accord reached between the enterprise and the civil association ODEAA does not affect the rights to organize and collective bargaining; (ii) require the enterprise to immediately terminate the collective accord concluded between the civil association ODEAA and a group of 30 pilots and not to sign other collective accords while trade union organizations such as the ACDAC, the ACAV or the SINTRATAC exist in the enterprise; and (iii) request the non-application of sections 430 and 450 of the Substantive Labour Code as they are contrary to the ILO’s rules and because they enabled the anti-union dismissal of many pilots belonging to the ACDAC.
18. 178. In communications dated 29 May, 31 May and 4 June 2018, the CUT and the ACDAC sent additional information. They state firstly that there are more than 60 air passenger transport companies in Colombia and more than 20 air ambulance companies and, as a result, over 70 per cent of domestic air travel continued during the strike. They further state that, as a result of the actions taken by the enterprise during the collective dispute that is the subject of this case, 25 per cent of the enterprise’s pilots who were members of the ACDAC have left the trade union (179 of the 702 members that the ACDAC had within the enterprise when the strike began). The collective accord concluded between the enterprise and the non-unionized pilots is now being applied to those workers, thereby discouraging freedom of association and collective bargaining, the collective accord being the far less risky option in the context of anti-union discrimination.
19. 179. In communications dated 1 and 31 October 2018, the ACDAC alleges that the pilots belonging to the trade union were subjected to illegal eavesdropping carried out by a contractor working for the enterprise with a view to discovering in advance the legal actions that the trade union was planning to take and that the results of these interceptions were used by the enterprise in the disciplinary proceedings following the pilots’ strike. The complainant organization states that these interceptions are the subject of an investigation by the Public Prosecutor’s Office and that a person has been arrested in that connection. The complainant organization further alleges that the enterprise is conducting an economic blockade of the ACDAC, preventing the deduction of members’ ordinary and extraordinary union dues in order to prevent the trade union from accomplishing its aims and defending the victims of the collective dispute. Lastly, the ACDAC states that these new facts demonstrate the need for the present complaint to be urgently examined by the Committee.
20. 180. In a communication dated 11 January 2019, the ACDAC states that the investigation conducted by the Public Prosecutor’s Office into the illegal interceptions has exposed the existence of an organized criminal network in which both the enterprise’s lawyers and officials of the Public Prosecutor’s Office itself were involved. The complainant organization further states that the Government and the Congress of the Republic are putting forward a bill called the “Consumer Statute”, the purpose of which is to establish that air transport constitutes an essential public service, thereby contradicting the ILO’s rules, as well as the related recommendations of the ILO supervisory bodies.
21. 181. In a communication dated 1 April 2019, the CUT also requests the Committee to urgently examine the case. In addition to allegations put forward in previous communications, the complainant organization denounces: (i) the lack of protection from the Ministry of Labour and the tribunals in light of the irregularities and arbitrary actions committed in the disciplinary proceedings in which more than 100 unionized pilots were dismissed and an additional 100 were penalized; (ii) the irreversible damage caused to the dismissed pilots who cannot be re-employed by other companies because of the time that has elapsed in which they have been unable to complete flight hours; (iii) the lack of judicial guarantees for settling the dispute, given that the Constitutional Court is headed by a lawyer who was employed by the enterprise and that, in spite of that fact, the lawyer participated in the proceedings for protection of rights to determine that they will not be selected for review by the Constitutional Court; (iv) the application to dissolve the legal personality of the ACDAC submitted by the enterprise through expedited judicial proceedings and based on the ruling that the strike held by the trade union was illegal. The CUT states in this respect that the dissolution of the trade union, resulting from mistakes made by the State in incorrectly classifying the strike as illegal, would lead to the disappearance of eight collective agreements in the air transport sector and leave destitute more than 1,000 families benefiting from their provisions. Lastly, the CUT indicates that, in view of the severity of the attacks on human and labour rights, the necessary actions have been brought not only before the ILO but also before the Inter-American Commission on Human Rights.
22. 182. In communications dated 15 and 21 May 2019, the ACAV, the SINTRATAC and the ACDAC also request the urgent intervention of the Committee to examine the present complaint in view of the imminent risk that the ACDAC will be dissolved following the legal proceedings to which it is being subjected. The ACAV and the SINTRATAC add that flight attendants and crews are not able to bargain collectively with the enterprise through their trade union organizations either due to the enterprise giving precedence to the interests of the collective accord and that approximately 20 flight attendants were dismissed after their trade union submitted a list of demands.
23. 183. In a communication dated 21 June 2019, the ACAV and the SINTRATAC indicate that the criminal courts have recently convicted an official of the Public Prosecutor’s Office, Mr Luis Carlos Góngora, for the illegal interceptions that the unionized pilots belonging to the ACDAC were subjected to during the strike. They assert that the ruling states that the enterprise’s lawyers had an interest in intercepting the pilots’ conversations throughout the collective dispute and that the ruling demonstrates the severity of the case and the need for it to be urgently examined by the Committee.
24. 184. In a communication dated 26 August 2019, the ACDAC states that the consequences of its legal dissolution, which it alleges could be imminent, would lead to: (i) the disappearance of the collective agreements of companies in the air transport sector and the loss of their benefits for thousands of active and retired pilots; (ii) the impossibility of the trade union seeking ways to improve the pilots’ working conditions; (iii) the impossibility of pursuing the legal actions taken to protect trade union rights in the aviation sector; (iv) the precedence of the enterprise’s collective accord as the regulatory source for all pilots, which would set a very bad precedent for the other occupations in the enterprise that are also being threatened with collective accords; and (v) impunity for the offences committed against the trade union and collective bargaining rights of the members of the ACDAC.
25. 185. In communications dated 7 and 11 February and 2 March 2020, the complainant organizations denounce that ACDAC union leaders and members of their families were subjected to death threats, a situation which, according to the complainants, makes it impossible for the ACDAC to appear before the CETCOIT and requires the case to be urgently examined by the Committee.
26. 186. In communications dated 14 and 26 January 2021, the complainant organizations refer to an agreement signed on 27 October 2020 between the enterprise and the ACDAC. The complainant organizations indicate in this regard that: (i) they welcome the agreement, the objective of which, in a very difficult economic context, is to ensure the continued operation of the enterprise and save jobs; (ii) the agreement, based on the trust that exists between the new Chief Executive Officer of the enterprise and the ACDAC, was possible thanks to the willingness on the part of the trade union to sacrifice acquired extra-legal rights (reduction of wages and deferral of certain clauses in the agreement for four years), and the willingness on the part of the enterprise to preserve the greatest possible number of jobs. The complainant organizations assert, however, that: (i) the sole and specific objective of the agreement signed was the continued operation of the enterprise and the jobs therein by the aforementioned means; and (ii) most of the violations that gave rise to the present complaint have not been resolved and persist, in particular those related to the exercise of the right to strike, the discrimination affecting the aviators who took part in it, the criminal charges against the leaders of the ACDAC and the resort to collective accords with non-unionized workers, for which reasons the Committee on Freedom of Association must examine the present case.
27. 187. The ACDAC attaches the text of the agreement of 27 October 2020 concluded with the enterprise and states specifically that: (i) the agreement expressly recognizes that the ACDAC is an occupation-based union; (ii) the unilateral withdrawal by the enterprise of its legal actions demonstrates that there were no grounds for pursuing them; (iii) although the enterprise undertook, by the agreement, to refrain from any act contrary to freedom of association and to the rights recognized in the collective agreement with the ACDAC, this did not prevent it, the following month, from signing a collective accord with its non-unionized pilots, thereby undermining the original agreement and discriminating in operational terms against the ACDAC pilots; and (iv) lastly, the agreement provides that the enterprise will comply with any national or international decision concerning the reinstatement of the pilots, which demonstrates the acceptance by the enterprise of the review by this Committee of the case.

B. The Government’s reply

1. 188. In a communication dated 24 April 2019, the Government submits the observations of the enterprise, as well as its reply to the complainants’ allegations. The enterprise states firstly that: (i) in accordance with its statutes, the ACDAC is an industrial trade union organization; (ii) it is a minority organization within the enterprise (as at 15 September 2017, 693 of the enterprise’s 8,524 workers were members of the ACDAC); (iii) the enterprise has signed several collective agreements with the ACDAC and has always respected the non-statutory rights laid down in those instruments; (iv) in 2013, the ACDAC submitted a list of demands but decided to leave the negotiating table and it was therefore not possible to reach any agreement; (v) in a consultation process backed by the Ministry of Labour, a voluntary benefit plan was drawn up, which the enterprise put forward to all the pilots, the widely offered plan rendering the formulation of discriminatory acts impossible; (vi) the voluntary benefit plan is not relevant to this case given that it has not been in force since 1 May 2017, that a court decision on the situation already exists, and because it has already been examined by the Committee on Freedom of Association in Case No. 2362; (vii) on 17 December 2013, the ACDAC submitted a list of demands, without first having denounced the collective work agreement; (viii) despite the lack of a complaint concerning the agreement, the enterprise began the direct settlement stage on 21 March 2014, which concluded on 10 April of the same year without reaching an agreement; (ix) at the request of the ACDAC, the Ministry of Labour convened an arbitration tribunal, a decision contested by the enterprise but upheld in a ruling of 30 April 2014; (x) on 5 October 2015, the ACDAC, with no explanation, withdrew the list of demands submitted in December 2013; (xi) on 8 August 2017, the ACDAC submitted a fresh list of demands without validating the complaint regarding the collective agreement; (xii) the direct settlement stage lasted until 11 September 2017 with no agreement being reached; (xiii) once the direct settlement stage had ended, the enterprise met with the trade union on more than six occasions with the assistance of the Ministry of Labour; (xiv) the trade union organization elected to unlawfully declare a strike within the enterprise, despite not having obtained the majorities required under the law, and to hold the strike within an essential public service in the strict sense; (xv) on 3 October 2017, the Special Administrative Unit for Civil Aviation issued a ruling of a general nature and with an erga omnes effect to broaden the opportunities to contract foreign captains in Colombia (the ACDAC lodged an action for protection of rights against the ruling, which was first suspended and later declared to be illegal, which is why the enterprise refrained from contracting foreign captains); (xvi) the enterprise considers that Mr Jaime Hernández, president of the ACDAC, engaged in conduct that could constitute the offence of economic panic, which is why it consequently filed the related complaint; (xvii) on 6 October 2017, the Bogota High Court ruled in first instance that the strike held by the ACDAC was illegal on the two grounds mentioned in point (xiv); (xviii) the Ministry of Labour convened the arbitration tribunal when the legal action concerning the classification of the legality of the strike had already been lodged; (xix) the arbitration award was handed down on 7 December 2017, giving rise to an appeal for annulment that is still pending; (xx) once the strike had ended, the enterprise reinstated the striking workers; (xxi) following the ruling that the strike was illegal and after scrupulously respecting due process, and based on objective and compelling reasons, the enterprise decided with just cause to terminate the employment contracts of 83 pilots; (xxii) the enterprise considers that the executive board of the ACDAC engaged in behaviour that allegedly amounts to the offence of obstructing the course of justice, which is why it consequently filed the complaint to enable the competent authority to carry out the respective investigation; and (xxiii) although the enterprise reported the possibility of civil proceedings in order to seek compensation for the damage caused, applications of this type have not been brought against any of the members of the ACDAC.
2. 189. The enterprise also comments on the judicial declaration of the illegality of the strike, stating that the declaration complied with the principles of the ILO and recalling that the judicial power to determine the legality or illegality of the strike is set down in a legislative reform of 2008, which was adopted in order to comply with the recommendations of the ILO supervisory bodies in this respect. The enterprise states that the Supreme Court found firstly that, in accordance with the democratic principles recognized by the Political Constitution and by the ILO supervisory bodies, the ACDAC had not obtained the majority required by section 444 of the Substantive Labour Code to be able to hold a strike. The enterprise indicates in this respect that: (i) without prejudice to the consideration of the ACDAC as an industry- or occupation-based trade union, the democratic principles on strike ballots set down in section 444 of the Substantive Labour Code should be respected; (ii) the actions of the ACDAC during the strike ballot demonstrate that it recognizes that it is a minority union because, according to the minutes of its meetings, it called on the other trade unions in the enterprise to approve the strike action with the aim of obtaining a majority ballot among all the enterprise’s workers; (iii) notwithstanding this, in the end, the ACDAC held the ballot in a members-only meeting room, without the members of the other trade unions casting a ballot, preventing the participation of non-unionized workers despite their request to take part, and without accepting the findings of the labour inspector to guarantee the validity of the results; and (iv) as a result, only 279 of the enterprise’s 8,624 workers voted in favour of the strike.
3. 190. The enterprise further states that the Supreme Court, in its examination of the legality of the strike, also considered that, in the Colombian context, air transport constitutes an essential public service because it: (i) ensures the supply of goods and services, thereby guaranteeing fundamental rights such as health and education; (ii) allows the transfer of patients and medical supplies to guarantee the right to life and health of the population; and (iii) even enables humanitarian assistance services to be provided to populations that are remote and disconnected from the national territory and guarantees the connectivity of marginalized or remote regions, which do not have other transport alternatives. The enterprise provides as examples the island of San Andres and the city of Leticia where, owing to the geographical conditions, air transport is the main and almost only means of supplying food and medicines, as well ensuring the movement of people. The enterprise also refers to the declaration of the Governor of the Department of Caldas, cited in the ruling of the Supreme Court, in which he expresses his concern over the consequences of the cessation of activities for the region “… remaining completely isolated from the rest of the country …”. In respect of the above, the enterprise provides the following figures: owing to Colombia’s economic situation and infrastructure, the enterprise provides 48 per cent of passenger transport, the provision of 80 per cent of food supplies to the Department of San Andres, Providencia and Santa Catalina and 50 per cent of food supplies to the city of Leticia, capital of the Department of Amazonas. It is the only airline authorized for the transport of items such as medicines, human organs, blood, plasma, chemotherapy treatments, human remains and surgical items. The enterprise is the only airline in Colombia that provides air transport to the population of Manizales, Caldas. The 51 days of strike action affected more than 377,000 passengers and 14,547 flights were cancelled.
4. 191. The enterprise concludes by highlighting that the review of the enterprise’s activity and its classification as an essential public service in the strict sense has been the subject of a detailed legal analysis, followed by a discussion of the evidence in which it was objectively decided that its disruption in Colombia would put the life, personal safety and health of some or all of the population at risk, taking into account the context and transport infrastructure of the country. The enterprise further states that the ruling of the Supreme Court is based on the guidelines developed by the Constitutional Court in its interpretation of article 56 of the Political Constitution which guarantees the right to strike, except for essential public services defined by the legislator, and that this jurisprudence takes full account of the criteria of the ILO supervisory bodies in this respect. The enterprise adds that, on previous occasions, the Constitutional Court had highlighted the essential nature of the activities of transport companies in general (ruling No. C-450 of 4 October 1995) and of the enterprise that is the subject of this case (ruling No. T-987 of 23 November 2012).
5. 192. The enterprise also states that, in their allegations, the complainant organizations incorrectly refer to previous cases of the Committee on Freedom of Association whose factual elements are very different from this case, which does not allow their use out of context, particularly when taking into account that: (i) the Committee clearly maintains that the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population depends to a large extent on the particular circumstances prevailing in a country; (ii) a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering life, personal safety or health; and (iii) in this case, the strike held by the ACDAC lasted for 51 days.
6. 193. The enterprise also provides further details on the disciplinary proceedings brought by the enterprise against the strikers, stating in this respect that: (i) the enterprise respects a process that was previously established with the trade union organization through the collective agreement, which is consistent with the provisions of Colombian legislation; (ii) that process provides for the identification of those workers who took part in the strike, the establishment of their level of participation and thus the imposition of non-discretionary sanctions, in line with the analysis of the level of participation of each pilot, including acquittals in cases where their non-involvement in the activities of the trade union organization is proven; (iii) in accordance with section 450(2) of the Substantive Labour Code, the employer is authorized to dismiss workers who have participated in a strike declared illegal by the courts; (iv) this provision has been declared valid by the Supreme Court of Justice and is in conformity with the position of the Committee on Freedom of Association on the matter, which only rejects the dismissal of workers following a lawful strike; (v) a transparent and serious process has been carried out to reinstate the workers who took part in the strike that was declared illegal, and the majority of striking pilots continue to form part of the enterprise (of the 702 pilots who participated in the strike, 232 were disciplined, resulting in 83 dismissals and 129 suspensions); (vi) only when there was a certainty that a pilot promoted the strike, participating actively in it, did the enterprise proceed to terminate his employment contract; and (vii) where it was not possible to establish that a pilot had promoted the cessation of activities, but it was determined that he had participated in it, that is to say through passive participation, the penalty imposed was suspension of the employment contract. The enterprise further highlights that a series of administrative and legal actions related to this case are still pending and states that it would be appropriate for the Committee to await the domestic resolution thereof in order to avoid a double investigation and to have available the factual and legal elements necessary to analyse the case.
7. 194. The enterprise also provides its observations on the additional allegations submitted by the complainants in October 2018 and January 2019. With respect to the allegations of civil and criminal actions against ACDAC leaders, the enterprise states that: (i) a compensation claim can by no means be considered as criminalizing an act and the enterprise recently filed an application before the Sixteenth Civil Court of the Bogota Circuit for the recognition of and payment for the serious damage caused on the occasion of the illegal stoppage; (ii) the enterprise repudiates the labelling of the president of the ACDAC as a “criminal defendant” “for exercising his statutory and legal functions of defending and representing the pilots”; (iii) a criminal complaint has indeed been lodged against the president of the ACDAC at the request of the Public Prosecutor’s Office concerning declarations he made on a television programme about an accident involving a plane belonging to the Bolivian airline Lamia, which occurred on 28 November 2016; (iv) in that interview, Mr Hernández circulated negative and false information regarding the enterprise; and (v) the declarations concerning the plane accident of an airline connected to the enterprise are unrelated to the “statutory and legal functions of defending and representing the pilots”. With respect to the allegations of the ACDAC concerning irregularities in the disciplinary proceedings brought and dismissals ordered because of the strike action, the enterprise states that the disciplinary proceedings were conducted in full observance of the guarantees of due process. The termination of employment contracts with just cause occurred as a consequence of the judicial ruling in which the strike held by the ACDAC was declared illegal in a special hearing pursuant to Act No. 1210 of 2008. In addition, the disciplinary proceedings were conducted to identify and determine the level of participation of the striking workers, as well as to verify the occurrence of possible disciplinary offences arising from the illegal stoppage of activities. With respect to the allegations of illegal interceptions, the enterprise: (i) categorically denies any connection with the interceptions and states that it has never contracted services for that purpose, nor has it requested a natural or legal person to carry out such services; (ii) states that, to date, the enterprise has not been notified of any judicial decision or criminal investigation and that the enterprise presented itself as a victim through a group of shareholders and is recognized as such by the courts of the Republic in the proceedings; (iii) in April 2017, the enterprise contracted the multinational company Berkeley Research Group (hereinafter “the investigation company”) to conduct global investigations aimed at detecting any corporate fraud against the enterprise; and (iv) as a result of the arrest of Mr Fernández, representative of the investigation company in Colombia, and until the Public Prosecutor conducts and concludes the investigation, the enterprise is suspending its relations with the investigation company’s branch in the country.
8. 195. The enterprise further states that: (i) it ensured the timely remittance of union dues to ACDAC as certified in management records, where a grand total of 3,684,836,518 Colombian pesos is recorded for union dues deducted from pilots in 2017, 2018 and the months from January to February 2019; (ii) there are no blacklists against pilots who participated in the strike, as evidenced by the high percentage of pilots who continue to perform their duties in the enterprise, and (iii) with regard to the presentation of draft legislation relating to the exercise of strike action in the aviation sector, the need for such legislation has arisen in view of a societal need.
9. 196. The Government provides the following reply to the allegations of the complainant organizations. The Government indicates that all of the facts to which the present complaint refers prior to the list of demands submitted by the ACDAC on 8 August 2017 form part of Case No. 2362, which is being followed up by the Committee on Freedom of Association and which, in accordance with the rules established by the Committee itself, should not be subject to further examination in the context of the present case. The Government indicates that in particular, this includes aspects related to the voluntary benefit plan offered by the enterprise in 2013 (which is no longer in effective) and the enforcement of ruling No. T-069 of the Constitutional Court.
10. 197. The Government states in general terms that ILO Conventions Nos 87, 98 and 154 form part of the national Constitution and therefore serve as a necessary point of reference for the interpretation of workers’ rights. It indicates that the concept of collective negotiation enshrined in Convention No. 154 is broader than lists of demands and collective agreements and that it also encompasses arbitration and strike mechanisms, which are therefore protected by the guarantees recognized by the Political Constitution and international Conventions for the right to collective bargaining.
11. 198. The Government goes on to highlight that Article 4 of Convention No. 98 and Paragraph 1 of the Collective Agreements Recommendation, 1951 (No. 91) underline the need for collective bargaining mechanisms to be appropriate to national conditions, which is why it clearly provides that it falls to each country to regulate, depending on the circumstances of individual States, aspects related to collective bargaining and, inter alia, the right to strike. Similarly, the Committee on Freedom of Association has always recognized that determining whether a public service is essential depends to a large extent on the particular circumstances prevailing in a country and that this concept is not absolute in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or exceeds a certain scope.
12. 199. With regard to the exercise of the right to strike in the air transport sector, the Government refers, firstly, to the legal framework for the right to strike in Colombia and to article 56 of the Political Constitution, which guarantees this right except in the case of essential public services as defined by law. It states that although the right to strike is not an absolute right, it can only be limited in the case of a public service of an essential nature; the Constitutional Court has laid down two conditions, one material and the other formal, under which the right to strike may legitimately be limited: (i) firstly, from a material point of view, that it concerns a public service which by its nature may be considered as an essential public service, and (ii) secondly, from a formal point of view, that the legislator has not only expressly stipulated that the activity concerned is an essential public service but has furthermore expressly restricted the right to strike in respect of such activity, based on the material criterion of essential public service insofar as it affects the basic core of fundamental rights.
13. 200. The Government refers to Constitutional Court ruling No. C-450 of 1995 in which the Court, referring to the non-absolute nature of the right to strike, specifies that a strike cannot affect the rights and fundamental freedoms of persons not involved in the conflict, since it is between workers and employers, and the use of strike action in public services can not threaten or undermine the rights of the community and of the State itself. It also states that the balance of conflicting interests and rights must weigh in favour of fundamental rights, that is to say the rights of the users of those services.
14. 201. The Government adds that the official declaration of the legality or illegality of a strike falls to the judiciary, pursuant to Act No. 1210 of 2008, which was adopted with a view to complying with the pronouncements of the ILO supervisory bodies and was welcomed with satisfaction by the CEACR. The Government indicates that both the Labour Chamber of the High Court of the Judicial District of Bogota, in its ruling of 6 October 2017 and the Labour Appeals Chamber of the Supreme Court of Justice, in its ruling of 7 October 2017, declared, in full accordance with Colombian law and with ILO standards, the strike carried out by the ACDAC to be illegal on the grounds that air transport constitutes an essential public service and that the ACDAC did not consult the majority of workers in the enterprise in taking this decision. The Government adds that, in response to an action for protection of rights lodged by the ACDAC against the two aforementioned rulings, the Civil Chamber of the Supreme Court decided, by a ruling of 18 July 2018, to uphold the illegality of the strike carried out by the ACDAC.
15. 202. With regard to the essential public service nature of air transport, the Government indicates that Colombian law clearly and explicitly defines public air transport as an essential public service, as established in sections 5 and 68 of Act No. 336 of 1996 and section 430(b) of the Substantive Labour Code. In this regard, the Government states that: (i) air transport links people, countries and cultures, provides access to global markets and generates trade and tourism, and forges ties between developed and developing nations; (ii) air transport networks facilitate the sending of emergency and humanitarian aid to any part of the globe, and also ensure the expeditious delivery of medical supplies and organs for human transplants; (iii) air transport in Colombia is often the sole means of transport to and from remote areas, making it more possible to meet many needs and even to be a major actor for social inclusion, connecting the people living there with the rest of their country; (iv) this activity is essential because it is closely linked to the exercise of the right to life and the right to work, enshrined as fundamental in the Political Constitution; (v) the possible consequences of a strike by the pilots of an air transport enterprise for users must be taken into account; the figures relating to flight cancellations, passengers affected, the impact on scheduled events such as surgeries, conferences, seminars, forums, business in different sectors, show clearly that such strikes have a direct impact on the lives and economic activity of people and may even be detrimental to the health, life and work opportunities of passengers; (vi) the failure by an air transport operator to provide a public service for more than 50 days causes alarm, has a highly negative impact, affects the life, health, well-being and opportunities of all those who have already bought their airline tickets, as well as those who plan to travel, whether for pleasure, to visit family, for surgery, for a medical appointment or in hope of work; and (vii) the country has no other means of transport that provides the same or similar efficiency as that of air transport, it has no river fleets and no low- or high-capacity rail transport; air transport is the only means of transport between remote areas without exposure to risks. The Government indicates that, on the basis of the above, the Supreme Court considered in the aforementioned ruling of 29 November 2017 that: “In social environments such as ours, air transport ensures the supply of goods and services whereby guarantee fundamental rights such as health and education are guaranteed” and that, in the same ruling Judge Ernesto Carvajalino Contreras considered “that the enterprise (…) provides an essential public service and its workers are therefore prohibited from taking strike action (…).” Therefore, in accordance with the Constitution, the cessation of activities must unswervingly be declared illegal on the basis of the provision set out in sections 430 and 450(a) of the Substantive Labour Code and sections 5 and 68 of Act No. 336 of 1998 and the line of case law followed by the high Courts throughout this ruling.
16. 203. With regard to minority support for the strike in the enterprise, the Government states that, under section 444 of the Substantive Labour Code, “[t]he strike or request for arbitration shall be addressed within ten (10) working days (…) by way of a “secret, individual and non-delegable ballot, requiring an absolute majority of (…) members of the trade union or unions that together represent more than half of those workers”. The Government indicates that, as emphasized in the first instance decision of the High Court of the Judicial District of Bogota, the ballot was held only among the general assembly and did not include an absolute majority of ballots of the entire payroll of the enterprise, taking into account that only 279 of its 8,642 workers voted in favour of the strike.
17. 204. The Government refers to the decision of the Ministry of Labour to convene, during the course of the strike, an arbitration tribunal. The Government states that this decision was entirely legal and constitutional since, as indicated above, various legal provisions state clearly that air transport constitutes an essential public service and that, under section 452 of the Substantive Labour Code, which was declared constitutional by the Constitutional Court, collective disputes affecting essential public services that are not resolved by means of direct settlement shall be submitted for compulsory arbitration. The Government adds that the convening of a compulsory arbitration tribunal by the Ministry of Labour does not imply the legality or illegality of a strike occurring in an essential public service, since the decision as to whether a strike is legal or illegal falls within the competence of the judicial authorities, as established in section 2 of Act No. 1210 of 2008. With regard to the legal proceedings initiated by the ACDAC against the convening of the arbitration tribunal, the Government indicates that Administrative Courts of both Cundinamarca and Antioquia rejected the applications for amparo [protection of constitutional rights] on the grounds that the administrative decision was in accordance with the law applicable in the event of collective disputes affecting the provision of an essential public service.
18. 205. In connection with the Civil Aviation Authority ruling which, according to the complainant organizations, would have allowed foreign pilots to be contracted to cover the air routes cancelled on account of the strike, the Government states that the ruling in question was of a general nature and was intended to affect all airlines, not only the enterprise that is the subject of this complaint, hence the purpose was not “esquirolaje”. The Government adds that in view of the foregoing, the action for protection of rights lodged by the ACDAC was successful and, as a result, the aforementioned ruling was not implemented and, therefore, the enterprise did not contract foreign pilots.
19. 206. With regard to disciplinary proceedings following the strike, the Government states that: (i) once the Supreme Court handed down its ruling of 29 November 2017 upholding the illegality of the strike, the Ministry of Labour immediately wrote to the enterprise to remind it of the need to apply article 1 of Decree No. 2164 of 1959 and to indicate that the Ministry of Labour would follow up on situations that needed to be resolved by administrative means; (ii) following the request made by the ACDAC through the Ombudsman’s Office to follow up on the process of reinstatement of pilots after the strike was declared illegal, the Ministry of Labour assigned a labour inspector who carried out steps on 17 and 18 January and 21 and 22 March 2018; (iii) once the enterprise instituted disciplinary proceedings, the Bogota Territorial Directorate assigned a labour inspector who, on 1 March 2018, ascertained what measures were being taken with regard to the workers; and (iv) without prejudice to the foregoing, it is not the responsibility of the Ministry of Labour to intervene in disciplinary proceedings in connection with the illegality of the strike, since it is described by case law as a preliminary procedure to be performed by the employer without interference or intervention from any administrative or judicial authority.
20. 207. With regard to the dismissal of a large number of pilots following disciplinary proceedings, the Government refers to statements made by the enterprise. The Government further refers to the Supreme Court ruling of 29 November 2017, in which the Court states that under section 450 of the Substantive Labour Code, “[i]f a work stoppage has been declared illegal, the employer shall be at liberty to dismiss for that reason anyone who has been involved or participated in such stoppage and, as regards workers who enjoy protection by virtue of [trade union] immunity, such dismissal shall not require any judicial authorization.” The Government also refers to Constitutional Court ruling No. C-450/99, in which the Court states that: “An illegal strike is not only a serious act that goes against the interests of the enterprise and of society at large, it also constitutes a manifest violation of the duties and obligations of workers, of the kind that could result in the termination of the contract with just cause.” Lastly, the Government indicates that workers who may have been dismissed without having participated actively in the strike can assert their rights before the courts, although the investigation has no knowledge or evidence of any such cases.
21. 208. With regard to the various criminal complaints filed by the enterprise against ACDAC leaders and reported by the complainant organizations, the Government refers to the enterprise’s reply and states that the complaints are not related to trade union activities but to conduct allegedly constituting offences unrelated to the legitimate exercise of freedom of association, and that it is for the competent bodies to decide on the matter. With specific regard to the criminal proceeding brought against the president of the ACDAC for statements on a television channel, the Government states that the business group brought the events to the attention of the Public Prosecutor’s Office and that a preliminary hearing was being scheduled for 21 May 2019. The Government adds that the events are entirely unrelated to the exercise of freedom of association and that the person charged is the natural person not the trade union organization, for which reasons the Committee is not considered to be competent in this respect.
22. 209. Regarding the economic blockade that the enterprise is allegedly imposing on ACDAC leaders, the Government confirms that the enterprise is making timely payments of dues to the trade union organization, in support of which it provides certification of trade union dues deducted from affiliated pilots during 2017, 2018 and until January 2019.
23. 210. With respect to the alleged illegal interceptions of pilots who took part in the strike, the Government, after referring to the statements of the ACDAC and the enterprise, indicates that the investigation is ongoing but that it has not been notified to date of any judicial decision in the process. It adds that it will be the criminal courts of Colombia that are called on to determine liability and assess the penalty for this conduct, if the evidence so permits.
24. 211. In communications dated 3 September 2019, 21 February, 3 and 31 March 2020, the Government provides further replies and forwards new observations from the enterprise. In addition to repeating the information and assertions provided in its initial communication, the enterprise indicates that: (i) it guaranteed the exercise of the right to strike of the ACDAC by not interfering in any way during the work stoppage, assuming in principle that the strike was legal and relying on the tool provided for in national law to qualify a strike; (ii) the disciplinary proceedings following the declaration of the illegality of the strike and instituted by the enterprise complied with all guarantees established by law and in signed agreements, indicating in this regard that, as a result of Act No. 1210 of 2008, it is no longer necessary to turn to the Ministry of Labour to determine the extent to which the workers who are the subject of disciplinary proceedings participated in the strike; (iii) a number of workers involved in the events of the present case lodged an action for protection of rights, which undermines the alleged lack of protection of their fundamental rights; (iv) in respect of the aforementioned actions for protection of rights, the enterprise appeared, met the procedural requirements imposed and complied with the orders given by the judges; (v) the fact that the pilots who were dismissed after their participation in the strike were not immediately in a position to fly for another company cannot be attributed to the enterprise but rather, on the one hand, to the need to comply with the Aeronautical Regulations of Colombia (RAC), which require that a pilot who has been out of operation for more than 90 days must undergo a period of retraining and, on the other hand, to the technical challenge posed, after the end of the strike, by the simultaneous return of 581 pilots combined with a shortage of flight simulators; (vi) the allegation of the CUT, that the Constitutional Court was not sufficiently impartial to rule on disputes relating to the enterprise, is completely unfounded, and it must be underscored that the procedures followed by the Court meet all due process criteria; (vii) in accordance with section 450(3) of the Substantive Labour Code and given that a court ruling declared the work stoppage carried out by the ACDAC to be illegal, the trade union organization is liable to be dissolved and liquidated and the enterprise is entitled to seek a judicial decision in this regard; (viii) dissolution is not automatic but requires a judicial decision based on proceedings that respect all guarantees of due process; (ix) it is inaccurate to claim that the ACDAC is at imminent risk of dissolution since, on average, proceedings of this type last for 17.3 months and are further subject to the constitutional principle of the right to appeal, with appeals taking on average 185 days to be resolved; (x) under section 474 of the Substantive Labour Code, the dissolution of a trade union signatory of a collective agreement does not imply the termination of the collective agreement that it signed; and (xi) the claim for economic damages submitted by the enterprise against the trade union, in respect of which no decision has yet been reached, is due to the need of the enterprise to safeguard its capital and preserve its assets.
25. 212. With regard to the investigation under way into the illegal interceptions to which ACDAC union leaders were subjected, the enterprise states that on 4 July 2019, the Public Prosecutor in charge of the file requested the evaluation of protection measures for an executive from the enterprise, and in October 2019 initiated a procedure for precautionary protection measures before the Inter-American Commission on Human Rights. The enterprise adds that it was listed, with the ACDAC, by the Public Prosecutor’s Office on 18 November 2019 as a victim of the aforementioned interceptions. After reiterating that it has always respected freedom of association, as the existence of nine workers’ associations in the enterprise shows, the enterprise emphasizes that since the appointment of its new Chief Executive Officer in July 2019, it has stepped up efforts to reach an agreement to end the labour dispute with the ACDAC and has held various working meetings in this regard. Lastly, the enterprise expresses its solidarity with and support for the leaders of the ACDAC in the context of the threats received and offers its cooperation in this regard.
26. 213. In its turn, in addition to reiterating the information and assertions provided in its communication of April 2019, the Government states that: (i) with respect to the facts of the present case, the State has not carried out any labour massacre, and the Ministry of Labour held numerous meetings in order to bring the parties together; (ii) the process of application for judicial dissolution of the trade union established by the Substantive Labour Code complies with all due process guarantees, and it is incorrect to assert that the ACDAC is in a defenceless position or at imminent risk of dissolution, as demonstrated by the time that has elapsed since the claim was made; and (iii) under section 474 of the Substantive Labour Code if the trade union signatory of a collective agreement is dissolved, the agreement does not remain in force, but its content goes on to form part of the employment contracts of those who were covered by it while they continue to work in the same enterprise.
27. 214. With regard to the court ruling that the strike carried out by the ACDAC was illegal, the Government reiterates that the Supreme Court in its corresponding ruling: (i) recalled that the Constitutional Court (ruling No. C-450 of 1995) considered constitutional, with the force of constitutional res judicata, section 450(1)(b) of the Substantive Labour Code according to which air transport services are essential; (ii) emphasized that minority trade unions do not have the exclusive right to strike, since trade union autonomy must be kept in perspective in order to protect and guarantee the rights of non-unionized workers, whom the law authorizes to take part in making this decision; and (iii) as a sectoral and minority union, the trade union organization ACDAC should, in order to declare the strike, have obtained a vote in favour from the majority of the workers in the enterprise and not solely from its members.
28. 215. With regard to the allegations of illegal interceptions to which ACDAC leaders were subjected and the court ruling that was handed down, reported by ACAV and SINTRATAC, after re-emphasizing that it falls to the judicial authorities to determine the innocence or not of the defendants, the Government indicates that: (i) the enterprise reported that it had not been notified of any decision against it and that it would be paying attention to the decision of the authority in that regard; and (ii) it is known that Mr Luis Carlos Gómez Góngora was sentenced to eight years of prison for procedural fraud, unlawful violation of communications and falsification of public documents.
29. 216. In respect of the alleged death threats to which ACDAC leaders were subjected, the Government indicates that: (i) it only learned of them when the ILO forwarded the relevant communications of the ACDAC and the CUT of 11 February 2020; (ii) the Ministry of Labour immediately notified the National Protection Unit (UNP), which, until that moment, had no knowledge of the aforementioned threats; and (iii) the president of the ACDAC was therefore requested to submit the information at his disposal to the UNP in order to provide appropriate and immediate protection.
30. 217. Following on from the mention contained in its communication of 13 June 2019 that the case would be dealt with in the framework of the CETCOIT, the Government emphasizes the efforts made to reach a consensus solution to the conflict through mediation by that body. The Government indicates in this regard that: (i) the meeting scheduled for 10 September 2019 could not be held because of the failure to attend of the ACDAC and the CUT; (ii) while, at the request of the ACDAC, an international facilitator was contacted, between October 2019 and February 2020 it was hoped that the aforementioned organization would indicate whether or not it was willing to take part in the facilitation process; (iii) it is regrettable that the ACDAC, which has recognized the importance of the CETCOIT in matters of social dialogue, should have called into question the impartiality of its national facilitator; and (iv) in view of the above, the Government reiterates its constant desire to bring together the parties to the conflict.
31. 218. In a communication dated 12 September 2020, the Government updates the information provided previously and also submits new observations on the part of the enterprise. In addition to reiterating the information and assertions contained in its previous communications, the enterprise states that: (i) the legal actions filed against the ACDAC (action to dissolve the trade union organization and claim for financial damages as a result of the effects of the strike) did not make significant progress; (ii) it is engaged in ongoing talks with its 11 workers’ associations and, since 2019, approaches have been initiated with the ACDAC with the aim of restoring trust between the parties, efforts which have intensified in the search for solutions to the impact of the COVID-19 pandemic; (iii) in this context, it is willing to withdraw the aforementioned legal actions, provided that there is common will on both sides to find substantive solutions to their natural differences; (iv) it remains willing to resort to the CETCOIT or any other national or international mediation mechanism. The enterprise adds that, in the context of the impact of the COVID-19 pandemic: (i) civil aviation is suffering the worst crisis in its history and the temporary suspension of the national and international passenger operations of the enterprise for more than five months has had devastating effects on its finances, seriously jeopardizing its viability and sustainability; (ii) as a result of the above, since 10 May 2020, a corporate reorganization process was initiated voluntarily under the United States Bankruptcy Code with the main objective of ensuring the survival of the enterprise as a source of employment in Latin America and in Colombia; and (iii) in this situation of force majeure faced by the sector, the enterprise has focused its efforts on establishing discussions and seeking stable and sustainable compromise solutions with all stakeholders, including the workers and their representative trade unions.
32. 219. In its turn, in addition to reiterating the information and assertions provided in its previous communications, in particular with regard to the existence of a constitutional and legal framework for strikes – specified by the Constitutional Court itself (ruling No. C-858-08) – in accordance with ILO standards and principles, the Government: (i) states that the complete independence of the Colombian judiciary with regard to strikes has been demonstrated anew by the various protection rulings handed down by the courts in relation to applications for reinstatement submitted by workers dismissed as a result of the strike at issue in the present case, whereas in some cases the courts ruled in favour of the enterprise and the Ministry of Labour (ruling No. T-509 of 2019) and, in others, in favour of the workers (ruling No. SU-598 of 2019); (ii) underscores the willingness of the enterprise to withdraw the legal actions brought against the ACDAC if it reaches such an agreement in the framework of the workshops with the ACDAC; (iii) indicates that the Ministry of Labour has done everything possible to facilitate the referral of the case to the CETCOIT, which is an ideal forum for social dialogue to resolve this type of dispute; (iv) expresses regret that, despite the guarantees provided to address the concerns raised by the ACDAC, the latter declined to take part in this forum for consultation; (v) states that, as soon as they became aware of the alleged threats against the ACDAC leaders, the Ministry of Labour and the UNP took all necessary protective measures; and (vi) indicates that, as a consequence of the situation generated by the COVID-19 pandemic, the enterprise, which provides an essential public service because it accounts for some 50 per cent of air traffic in the country, is going through a serious financial crisis, which prompted the Government to make it a loan, with a view both to maintaining air transport in the country and preserving the 500,000 jobs generated directly or indirectly by the activities of the enterprise.
33. 220. In a communication received on 23 December 2020, the Government indicates that after numerous efforts to resolve their dispute and as a result of their persistence and faith in social dialogue, the enterprise and the ACDAC succeeded, despite the context of grave economic difficulties in the aviation sector, in signing, on 27 October 2020, a new agreement for a term of four years. The Government submits that, with this achievement, the grounds for the present complaint have been eliminated since, in particular: (i) although there was a sound legal basis for the latter, the enterprise has undertaken to withdraw its legal actions seeking to have the registration of the ACDAC cancelled, on the one hand, and, on the other hand, seeking an award of damages from the union in the wake of the strike action of 2017; and (ii) the constant communication between the enterprise and the trade union illustrates respect between the parties and respect for trade union rights in the enterprise. The Government considers that, in the light of the above, there are no longer grounds for the Committee to examine the present case.
34. 221. The Government also encloses a communication addressed to it by the enterprise in response to a request from the Ministry of Labour, in which the enterprise indicates that: (i) in the context of the serious difficulties experienced by the global aviation industry that are jeopardizing the viability of its business, the enterprise initiated discussions with its own workers’ organizations, including the ACDAC, with the main objective of finding long-term compromise solutions in order to ensure the stability and survival of the enterprise ; (ii) after more than a decade of open labour unrest, on 27 October 2020 the enterprise and the ACDAC signed an extra-legal benefits adjustment agreement for a term of four years, aimed at protecting the enterprise as a source of employment for thousands of people; and (iii) on 28 October 2020, even though the legal actions that it brought were based on legal and reasonable claims, as a statement of good faith and with the aim of removing labour relations from the courts, the enterprise withdrew its application for the legal personality of the ACDAC to be withdrawn and is in the process of withdrawing the civil damages claim that it brought against the trade union.
35. 222. In a further communication dated 17 February 2021, the Government submits the document from the judicial branch establishing the definitive closure, following the withdrawal by the enterprise, of the legal action to cancel the legal personality of the ACDAC. The Government indicates that the legal concept of withdrawal signifies the finalization of the judicial process and has the same effects as a ruling. The Government states that the withdrawal demonstrates the clear willingness of the parties to find a compromise solution and for conciliation.

C. The Committee’s conclusions

1. 223. The Committee notes that this case refers to a collective dispute over the renewal of a collective agreement between an air transport enterprise and the pilots’ trade union, the ACDAC. This dispute culminated in strike action held from 20 September to 10 November 2017, which was declared illegal by the Bogota High Court on 6 October 2017, a decision that was upheld by the Labour Appeals Chamber of the Supreme Court on 29 November 2017.
2. 224. The Committee notes that the main allegations of the complainants and the different national and international trade unions associated with the complaint are that: (i) the enterprise, with the complicity of the Ministry of Labour, restricted the pilots’ freedom of association and right to collective bargaining by concluding and promoting collective accords (pactos colectivos) with non-unionized pilots, the content of which discriminate against unionized workers; (ii) using as a basis legislation that runs counter to ILO Conventions Nos 87 and 98, both the Ministry of Labour – by convening a compulsory arbitration tribunal during the strike – and the country’s judicial authorities – by issuing rulings declaring the strike illegal – unjustly denied the pilots’ right to strike; (iii) during the legal proceedings related to the collective dispute, the CUT was denied the right to defend the interests of its members and affiliated organizations; (iv) the pilots on strike were replaced by foreign pilots; (v) on grounds of the ruling that the strike was illegal, many pilots were allegedly dismissed without justification or respect for due process; (vi) again on grounds that the ruling that the strike was illegal, the ACDAC was allegedly subject to expedited judicial proceedings for its dissolution; (vii) ACDAC trade union leaders had a number of civil and criminal proceedings brought against them for carrying out their legitimate trade union activities; (viii) the enterprise had stopped forwarding to the ACDAC the trade union dues of its members; (ix) the trade union was subjected to illegal interceptions during the strike by persons connected to the enterprise and public officials; and (x) in early 2020, ACDAC union leaders and members of their families were subjected to death threats.
3. 225. The Committee notes, furthermore, that both the enterprise and the Government deny any violation of freedom of association and collective bargaining, maintaining that the enterprise, on the one hand, and the public authorities, on the other, have acted in accordance with the Colombian constitutional order which, in turn, is based on the ILO’s standards and principles, and that it is the ACDAC trade union organization that has diverged from the aforementioned constitutional order by holding an illegal strike.
4. 226. Before examining the above allegations, and the corresponding replies from the Government and the enterprise, the Committee observes that it appears from the different information provided by the parties that the events leading up to the collective dispute that is the subject of this case gave rise to the following stages: (i) from 2013, attempts were made to renew the collective agreement between the enterprise and the ACDAC; (ii) in October 2013, the enterprise adopted a voluntary benefit plan; (iii) the voluntary benefit plan in question gave rise to the Constitutional Court’s ruling No. T-069 on 18 February 2015, which equates the voluntary benefit plan to a collective accord and requests the enterprise not to use collective accords to restrict freedom of association and collective bargaining (the voluntary benefit plan expired in 2017); (iv) in the absence of an agreement on the renewal of the collective agreement and, at the request of the ACDAC, the Ministry of Labour appointed an arbitration tribunal in 2015; (v) on 5 October 2015, alleging a lack of impartiality on the part of the tribunal, the ACDAC withdrew its list of demands from 2013 that formed the basis for the appointment of the arbitration tribunal; (vi) in March 2017, the enterprise and the civil association ODEAA concluded a collective accord, applicable under Colombian law to non-unionized workers of the enterprise; (vii) on 8 August 2017, the ACDAC submitted a fresh list of demands for the renewal of the collective agreement; (viii) the direct settlement stage with the enterprise lasted until 11 September 2017, with no agreement being reached; (ix) after a ballot of its members, the ACDAC began strike action on 20 September 2017; (x) on 28 September 2017, as provided by the legal provisions classifying air transport as an essential public service, the Minister of Labour ordered a compulsory arbitration tribunal to be set up, a decision contested by the ACDAC; (xi) on 6 October 2017, at the request of the enterprise, the Bogota High Court ruled that the strike action was illegal, a decision that was appealed by the ACDAC; (xii) on 31 October 2017, the Ombudsman summoned the enterprise to try to mediate in the dispute, a proposal that was declined by the enterprise because there was already a court decision on the strike; (xiii) on 29 November 2017, the Labour Appeals Chamber of the Supreme Court upheld the decision of first instance of the Bogota High Court that the strike was illegal; (xiv) on 10 November 2017, the ACDAC ended the strike action; (xv) from 26 February 2018, the enterprise began disciplinary proceedings against the pilots who had taken part in the strike; (xvi) on 18 July 2018, the Civil Chamber of the Supreme Court dismissed the action for protection of rights filed by the ACDAC against the ruling handed down by the Court’s Labour Appeals Chamber; and (xvii) the enterprise, applying section 450 of the Substantive Labour Code, went before the courts to seek the dissolution of the ACDAC. With regard to the negotiating stages of the above-mentioned list of demands, the Committee notes the divergent positions of the ACDAC and the enterprise on the legality of the procedures followed by the ACDAC, on the one hand, and on the willingness of the enterprise to negotiate the list of demands effectively, on the other.
5. 227. The Committee notes that, subsequent to the events described in the previous paragraph which constitute the factual context of the allegations in the present case, it received communications from the Government, and from the complainant organizations, in which they reported: (i) the signature, on 27 October 2020, in the context of the serious economic crisis affecting the global airline sector as a result of the COVID-19 pandemic, of an agreement between the enterprise and the ACDAC, aimed at ensuring the continued operation of the enterprise and jobs therein; and (ii) the withdrawal by the enterprise – with a view to improving the climate of social dialogue – of its legal actions seeking to cancel the trade union registration of the ACDAC and claiming damages for the economic impact of the strike.
6. 228. The Committee notes that the Government: (i) indicates that the agreement of 27 October 2020 is a major achievement after many years of conflict and is the result of the commitment of the parties to social dialogue; (ii) the withdrawal by the enterprise of its legal action to cancel the trade union registration of the ACDAC confirms the willingness of the parties to find a compromise solution; (iii) considers that the agreement confirms that there is full compliance with freedom of association; (iv) considers that the grounds on which the present case was brought have already been resolved. The Committee notes that, for their part, the complainant organizations, while welcoming the signature of the agreement and underscoring the importance of the trust between the new Chief Executive Officer of the enterprise and the ACDAC for its achievement, indicate that: (i) the sole and specific objective of the agreement, which was based on the willingness on the part of the trade union to sacrifice extra-legal rights and the willingness on the part of the enterprise to preserve the greatest possible number of jobs, was the continued operation of the enterprise and the jobs therein; (ii) most of the violations that gave rise to the present complaint (in particular those related to the exercise of the right to strike, the discrimination affecting the aviators who took part in it, the criminal charges against the leaders of the ACDAC and the resort to collective accords with non-unionized workers) have not been resolved and persist.

Allegations concerning the anti-union use of collective accords by the enterprise

1. 229. The Committee notes that the complainants allege that, despite representative workers’ unions already being in existence, the enterprise concluded and promoted collective accords applicable to non-unionized workers in order, with the support of the Ministry of Labour, to restrict the rights to freedom of association and collective bargaining of workers and their trade union organizations. The Committee takes note of the complainants’ specific allegations that: (i) despite ruling No. T-069 of 18 February 2015 which, in reference to a collective accord adopted in 2013 (the Voluntary Benefits Plan), ordered the enterprise to refrain from laying down conditions in collective accords that discourage workers from joining or remaining in the trade union, the enterprise, with the complicity of a civil association (the ODEAA), in April 2017 adopted a new collective accord, the contents of which, applying solely to non-unionized workers, changes a number of aspects of the collective agreement and discriminates against the unionized pilots; (ii) despite the fact that the accord was signed by only 30 pilots at the time the complaint was presented, the enterprise insisted on its implementation over the collective agreement and misleadingly presented it as the result of negotiations between the enterprise and all the enterprise’s pilots; (iii) in view of the dismissals and other anti-union acts carried out by the enterprise after the strike ended, many pilots left the ACDAC to be able to enjoy the benefits of the collective accord; (iv) the anti-union use of collective accords by the enterprise was not limited to the pilots but was also extended to cabin crew and attendants, to the detriment of the trade union organizations SINTRATAC and ACAV; (v) despite the precedent provided by ruling No. T-069 and the repeated recommendations of the ILO supervisory bodies regarding collective accords, the Ministry of Labour has failed to take action to stop the anti-union use of collective accords in the enterprise; and (vi) although the enterprise undertook, through the agreement of 27 October 2020, to refrain from any act contrary to freedom of association and to the rights recognized in the collective agreement with the ACDAC, the following month it signed a new collective accord with the non-unionized pilots in the enterprise, which undermines the agreement and discriminates in operational terms against the ACDAC pilots. The Committee notes that, on the basis of the above, the complainants request that the enterprise refrain from adopting collective accords so long as trade unions already exist in the enterprise and, moreover, that the provisions of the Substantive Labour Code regarding collective accords are adapted to the Committee’s recommendations.
2. 230. The Committee also notes that the enterprise and the Government indicate that the voluntary benefit plan adopted in 2013 has expired and that the facts reported by the complainants prior to the negotiations on the 2017 list of demands are already under examination by the Committee in Case No. 2362 in follow-up. The Committee recalls in this regard that Case No. 2362 refers to a complaint presented by the ACDAC in 2008, alleging a series of anti-union acts by the enterprise, in particular as regards the use of collective accords , and which is currently in follow-up. While underlining the reiterative nature of its recommendations addressed to Colombia regarding the fact that collective accords concluded with non-unionized workers should not be used to undermine the position of trade union organizations [see Case No. 1973, 324th Report; Case No. 2068, 325th Report; Case No. 2046, 332nd Report; and Case No. 2493, 349th Report] and that the signing of collective accords should only be possible in the absence of trade union organizations [see Case No. 2796, 368th and 362nd Reports and Case No. 3150, 387th Report, para. 336] and noting that the coexistence of collective agreements and collective accords concluded with non-unionized workers at the enterprise is one aspect of the dispute that is the subject of the present case, the Committee requests the Government to provide its observations on the complainants’ allegations on the adoption by the enterprise of a new collective accord in April 2017 so that it may examine this issue at its next meeting under Case No. 2362.

Allegations concerning the violation of the right to strike by the enterprise’s pilots

1. 231. The Committee notes that the complainants allege that both the Ministry of Labour – by convening a compulsory arbitration tribunal in the midst of the strike action – and the domestic courts – through a ruling declaring the strike held by the ACDAC illegal – unjustly denied the enterprise’s pilots the right to strike. The Committee takes note specifically that the complainants consider the two main grounds on which the ruling of illegality was based to be false, namely, that air transport is an essential public service, and the need – not met by the ACDAC – for the majority of the enterprise’s workers to have voted in favour of the strike. With regard to the classification of air transport as an essential public service, the Committee notes that the complainants state that: (i) air transport in Colombia does not meet the Committee’s criteria on the basis of which only the services whose interruption would endanger the life, personal safety or health of the whole or part of the population can be classified as essential public services in the strict sense of the term; (ii) on many occasions the Committee has deemed that air transport did not meet the criteria in question, which is why Colombian legislation should be amended in this regard; (iii) there are more than 60 air passenger transport companies in Colombia and more than 20 air ambulance companies; and (iv) as a result, over 70 per cent of domestic air travel continued during the strike that is the subject of this case.
2. 232. The Committee notes that, for its part, the enterprise states that, in the Colombian context, air transport in general and that provided by the enterprise in particular constitute an essential public service. The enterprise states that this finding is based on the following factors: (i) air transport ensures the supply of goods and services, thereby guaranteeing fundamental rights such as health and education; (ii) air transport allows the transfer of patients and medical supplies to guarantee the right to life and health of the population; (iii) air transport even enables humanitarian assistance services to be provided to populations that are remote and disconnected from the national territory and guarantees the connectivity of marginalized or remote regions, which do not have other transport alternatives; (iv) as a result of Colombia’s economic situation and infrastructure, the enterprise provides 48 per cent of passenger transport, the provision of 80 per cent of food supplies to the Department of San Andres, Providencia and Santa Catalina and 50 per cent of food supplies to the city of Leticia, capital of the Department of Amazonas; (v) the enterprise is the only airline authorized for the transport of items such as medicines, human organs, blood, plasma, chemotherapy treatments, human remains, medical supplies and surgical items; (vi) the enterprise is the only airline in Colombia that provides air transport to the population of Manizales, Caldas; and (vii) the 51 days of strike affected more than 377,000 passengers and 14,547 flights were cancelled.
3. 233. The Committee notes further the enterprise’s statement that the Supreme Court, on the basis of a detailed and objective analysis in which the above factors were assessed, found that, in the Colombian context, air transport constituted an essential public service. The enterprise states that the position expressed by the Labour Appeals Chamber of the Supreme Court coincides with previous rulings of the Constitutional Court, in which the latter had highlighted the essential nature of the activities of transport enterprises in general (ruling No. C-450 of 4 October 1995) and of air transport in particular (ruling No. T-987 of 23 November 2012). Lastly, the enterprise states that the complainants have taken information out of context when referring to the Committee’s cases that dealt with factual elements that are totally different from the facts of this case.
4. 234. The Committee notes that the Government, in turn, states that: (i) Article 4 of Convention No. 98 and Paragraph 1 of Recommendation No. 91 underline the need for collective bargaining mechanisms to be appropriate to national conditions, which is why it clearly provides that it falls to each country to regulate, depending on its own particular circumstances, aspects related to collective bargaining and, inter alia, the right to strike; (ii) similarly, the Committee has always recognized that determining whether a public service is essential depends to a large extent on the particular circumstances prevailing in a country and that this concept is not absolute in the sense that a non-essential service may become essential if a strike lasted beyond a certain time or extended beyond a certain scope; (iii) in Colombia, article 56 of the Political Constitution guarantees this right with the exception of essential public services defined by law; (iv) on the basis of this provision, and the other articles of the Political Constitution that protect freedom of association, the Constitutional Court, in accordance with ILO standards and principles, has clarified the scope and limits of the right to strike through various rulings (see, in particular, ruling No. C-858-08); (v) on the basis of the aforementioned article 56 of the Political Constitution, the Constitutional Court considers that the right to strike can be restricted in those services which, by their very nature, can be considered as an essential public service (material criterion) insofar as their interruption affects the essential core of fundamental rights and that, additionally, have been expressly defined as such by the legislator (formal criteria); (vi) Colombian legislation, in accordance with the Political Constitution, clearly and explicitly defines public air transport as an essential public service; (vii) air transport facilitates the delivery of emergency and humanitarian aid to any part of the globe, as well as ensuring the expeditious delivery of medical supplies and organs for human transplants; (viii) air transport in Colombia is often the only means of transport to and from remote areas without exposure to risks, as the country has no other means of transport that provides the same or similar efficiency as that of air transport; it has no river fleets and no low- or high-capacity rail transport; (ix) the air transport strike has a direct impact on people’s activities, to the point of affecting the health, life and work opportunities of passengers. The Government indicates that, on the basis of the above, and pursuant to Act No. 1210 of 2008 granting the judiciary the power to declare the legality of a strike, the Labour Appeals Chamber of the Supreme Court, in its ruling of 29 November 2017, upheld the ruling declaring the strike held by the ACDAC illegal handed down in first instance by the Bogota High Court.
5. 235. In this regard, the Committee notes that, in the aforementioned ruling, the Supreme Court by majority vote, found that “passenger air transport constitutes a normal, main and regular service for many people who need to travel in order to fulfil obligations and duties and exercise rights such as health and education. By way of illustration, therefore, according to figures from the Special Administrative Unit for Civil Aviation, during 2016 more than 36 million passengers travelled by air, 48 per cent of which were served by the enterprise subject to this complaint. […] In the light of the above, while it is true that air transport serves purposes such as tourism, entertainment, business and many other non-essential social activities, in the strict sense of the term, it is a somewhat misleading to consider that its role ends there and that it is therefore merely a luxury resource or a means of entertainment for wealthy people. On the contrary, in the Court’s view, because of how fundamentally important air transport has become in our lives, its suppression, even partial, would mean risking people’s health and lives, such that, as regards substance, it can be considered an essential public service.”
6. 236. The Committee also notes that, in the same ruling, the Supreme Court states that: “However, despite the foregoing, without ignoring the realities of our context and the tangible evidence for the prohibition of strikes in the air transport public sector, which was analysed above, the Court attaches cardinal importance to the guidance provided by the ILO supervisory bodies that there should not be an absolute prohibition of the right to strike in this sector, which is derived from authoritative interpretations of the rights to freedom of association and collective bargaining, proclaimed in fundamental Conventions such as Nos 87 and 98, to which Colombia has committed to respect, promote and comply with in good faith. In this regard, in the Chamber’s view, the doctrine of the Committee on Freedom of Association of the International Labour Organization to which the lawyer of the defendant organization refers, without disregarding its relevance in the interpretation of the constitutional and legal provisions governing the right of the work, should serve as a basis for the legislator – within the framework of a state policy and in making use of his/her constitutional powers, with the participation of all the social organizations involved and democratically and deliberatively – to clarify the exceptional possibility of exercising the right to strike in public services such as air transport, with the guarantee of minimum operating services with a view to safeguarding fundamental rights to the health, life and safety of the population. It is therefore worth reminding the Congress of the Republic of the need to update the legislation respecting the right to strike and its limitations in the area of essential services, taking into account the legal reserve provided for in article 56 of the Political Constitution”.
7. 237. The Committee takes due note of the different elements mentioned above and observes that the complainants and the Government, as well as the Supreme Court in its ruling, refer to the importance of the general criteria established by the Committee for the classification of essential public services in the strict sense and to the need to assess them in the light of the specific context and the particular circumstances in which the strike took place.
8. 238. The Committee recalls that it has considered that in order to determine situations in which a strike could be prohibited, the criterion which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population [see Compilation of the decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 836]. The Committee has also stated that what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population [see Compilation, para. 837].
9. 239. In this regard, the Committee notes in particular the detailed information supplied by the enterprise on the importance of the flights it provides, stating that: (i) it ensures provision of 80 per cent of food supplies to the Department of San Andres, Providencia and Santa Catalina (the Archipelago of San Andres, Providencia and Santa Catalina) and 50 per cent of food supplies to the city of Leticia, capital of the Department of Amazonas; (ii) it is the only airline authorized to transport supplies such as drugs, human organs, blood, plasma, chemotherapy treatments, human remains, medical supplies and surgical items; and (iii) it is the only airline in Colombia that provides air transport to the population of Manizales, Caldas. The Committee also notes the complainants’ statements about the practical impact of the strike action that is the subject of this complaint, according to which: (i) there are more than 60 air passenger transport companies and more than 20 air ambulance companies in Colombia; and (ii) during the strike, more than 70 per cent of domestic air traffic continued operating. The Committee also notes that, according to the figures cited by the Labour Appeals Chamber of the Supreme Court in its ruling, the enterprise serves 48 per cent of the country’s air passengers and, during the strike, 60 per cent of the country's air transportation activity was assured. The Committee observes that it is clear from the foregoing that, for some limited parts of the country, which, owing to their remoteness, rely to a large extent on air transport for their provisions and access to health services, and for the transport of certain health products throughout the country, the corresponding air transport operations carried out by the enterprise appear to be of such importance that there are indications that the total interruption of these limited operations may endanger the life of part of the population. The Committee also notes that the above-mentioned relevance does not extend to the entire activity of the company and the sector.
10. 240. The Committee emphasizes that these considerations, based on the specific circumstances of the country that is the subject of this complaint, are in line with its conclusions adopted in other cases concerning the air transport sectors of other countries and in which, based on the circumstances of each case, it was considered that the air transport sector as a whole is not an essential public service in the strict sense but that its importance could justify the establishment of a minimum service aimed at ensuring that users’ basic needs are met, without calling into question the right to strike of the majority of workers in the sector.
11. 241. On the basis of the elements at its disposal concerning the importance of the airline sector in the country and with a view to ensuring both respect for the fundamental rights of the population and the right of pilots to defend their occupational interests by striking, the Committee therefore considers that a mechanism could be established for negotiating minimum services in the event of a strike in the country’s air transport sector. The Committee therefore requests the Government, in consultation with the social partners from the sector, to take the necessary measures as soon as possible to review the legislation, in conformity with the principles of freedom of association referred to above, ensuring the establishment of a mechanism for negotiating minimum services in the event of strikes in the air transport sector, and it invites the Government to avail itself of ILO technical assistance in this regard.
12. 242. With regard to the grounds for the judicial declaration of the illegality of the strike held by the ACDAC based on the failure to obtain the majorities required under Colombian law, the Committee notes that the complainants state that: (i) in its relations with the enterprise and under the collective agreement signed between them, the ACDAC is an occupation-based trade union organization (“sindicato gremial”) which, at the time the strike began, had as members 702 of the enterprise’s 1,200 pilots; (ii) the occupation-based strike held by the ACDAC was joined by 702 of the enterprise’s pilots belonging to the trade union organization; (iii) the requirement that the pilots’ strike be supported by more than half of all of the enterprise’s workers, whether or not they be pilots, constitutes an excessive requirement of a majority, contrary to the principles of freedom of association. The Committee notes that, on the other hand, both the enterprise and the Government state that: (i) the ACDAC is a minority industry union within the enterprise, given that, as at 15 September 2017, 693 of the enterprise’s 8,524 workers were its members; (ii) whether it is considered an occupation-based union or an industrial union, the ACDAC was required to adhere to the democratic principles in section 444 of the Substantive Labour Code; (iii) after initially calling on the other unions in the enterprise in order to obtain a majority vote of the enterprise’s workers, in the end the ACDAC limited the vote to its members; (iv) only 279 workers belonging to the union voted personally in favour of the strike; (v) the union did not accept the presence of the labour inspectorate to guarantee the validity of the proceedings; (vi) Bogota’s High Court and the Supreme Court found by majority vote that there had not been an absolute majority vote by the enterprise’s workers in favour of the strike, nor even through a personal vote of the majority of workers belonging to the trade union, meaning that the strike was illegal as it violated sections 444 and 450(d) of the Substantive Labour Code.
13. 243. The Committee takes due note of the information provided by the various parties and observes that the first issue, relating to the validity of the vote on the strike by the ACDAC, revolves around the requirement for it to be supported by the majority of the enterprise’s workers.
14. 244. The Committee notes that the Government and the enterprise refer in this respect to the provisions of section 444 of the Substantive Labour Code, which establishes a distinction regarding the conditions for strike ballots, depending on whether or not they are called by a majority union at the enterprise. If it is a majority union, that union’s general assembly must approve the strike; if the union does not represent the majority of the enterprise’s workers, the strike must have the support of the majority of the enterprise’s workers taken as a whole. The Committee also notes the Government’s emphasis on the fact that, in its ruling of 29 November 2017, the Supreme Court of Justice highlighted that the ACDAC, as a minority industrial trade union in the enterprise, should have the support of the majority of the enterprise’s workers and not just of its members in order to call the strike as, in accordance with the provisions of the Substantive Labour Code, the trade union autonomy of minority unions should be qualified in order to also protect and guarantee the rights of non-unionized workers.
15. 245. Recalling that it has considered that the requirement of a decision by over half of all the workers involved in order to declare a strike is too high and could excessively hinder the possibility of calling a strike, particularly in large enterprises [see Compilation, para. 806], the Committee observes, in the present case, that the strike initiated by the ACDAC occurred on the occasion of a collective dispute, the objective of which was to negotiate the renewal of the collective agreement applicable only to the enterprise’s pilots, given that the other occupations operating in the enterprise are governed by separate collective agreements. The Committee observes that, while the requirement of a majority vote in respect of strikes is in itself in full conformity with the principles of freedom of association, the manner in which it is implemented must be reasonable and objective and, consequently, grounded in the involvement of those workers who are actually covered by the collective instrument that is the object of the dispute that the strike is seeking to resolve. In this regard, in the framework of negotiations that are clearly of an occupation-based nature (it being the nature of the ACDAC that gave rise to discussions) and with a view to preserving the autonomy of the parties to the negotiations under way, the Committee considers that it is the workers in the occupation concerned who should decide the relevance of possible recourse to strike action to settle the collective dispute in question.
16. 246. In view of the above, the Committee considers that, in the context of negotiations concerning the renewal of the collective agreement covering the enterprise’s pilots, making the exercise of the pilots’ right to strike conditional on the vote of all the enterprise’s workers did not correspond to the specificities of the collective dispute in question and that, in the context of negotiations concerning a specific occupation, the possible majority status of the ACDAC should be evaluated in respect of the number of pilots employed by the enterprise. In this regard, the Committee requests the Government to take the necessary measures, in consultation with the representative social partners, to amend section 444 of the Substantive Labour Code so that, in the context of an occupation-based collective bargaining the autonomy of the organizations involved is guaranteed. The Committee requests the Government to keep it informed in this regard.
17. 247. The Committee notes that a second aspect related to the validity of the vote on the strike initiated by the ACDAC relates to the fact that, in addition to the lack of support from the majority of the enterprise’s workers, the trade union would not have had the personal and direct vote of the majority of its members, as prescribed by the Substantive Labour Code. The Committee notes in this respect that, in its decision, the Labour Chamber of the Supreme Court found that it was clear from the strike ballots presented by both the trade union organization and the labour inspector that, while 699 votes had been registered in favour of the strike, only 215 of the 702 members of the trade union had participated directly and personally in the strike vote while the remainder voted by proxy, contrary to the provisions of section 444 of the Substantive Labour Code, which requires a “secret, individual and non-delegable ballot, requiring an absolute majority of (…) members of the trade union or unions that together represent more than half of those workers”.
18. 248. The Committee takes due note of the information provided. It recalls firstly, in general terms, that it has considered that no violation of the principles of freedom of association is involved where the legislation contains certain rules intended to promote democratic principles within trade union organizations or to ensure that the electoral procedure is conducted in a normal manner and with due respect for the rights of members in order to avoid any dispute as to the election results [see Compilation, para. 600]. In the case under consideration, the Committee notes that the information available indicates that, on the one hand, a considerable majority of the members of the pilots’ union voted in favour of the strike but that, on the other hand, the majority of the members of the organization were not present at the ballot but voted by proxy. While it appreciates the purpose of the legislation with regard to the security of electoral processes, the Committee observes the specificities of the profession of international airline pilots, which is characterized by the constant geographic dispersion of the workers concerned at the national and international airports where their enterprise operates. The Committee observes that this dispersion could make it difficult to meet the requirement for an individual ballot of the absolute majority of the members of the ACDAC and their ability to convene while continuing to attend to their professional activities. In this regard, the Committee recalls that the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations [see Compilation, para. 789].
19. 249. Regarding the alleged violations of the right to strike of the ACDAC and its members, the Committee notes that the complainant organizations also denounce the setting up, during the cessation of activities and before the courts ruled on the legality of the strike, of a compulsory arbitration tribunal by the Minister of Labour, a decision that gave rise to several legal actions by the ACDAC and that the complainant organizations consider to be contrary to Article 6 of Convention No. 154 ratified by Colombia. The Committee notes that, for its part, the Government states that: (i) its decision to convene a compulsory arbitration tribunal was entirely legal and constitutional due to the legislative classification of air transport as an essential public service; (ii) under the Substantive Labour Code, collective disputes that affect essential public services and that have not been resolved by way of direct settlement shall be subject to compulsory arbitration; (iii) the convening of a compulsory arbitration tribunal by the Ministry of Labour does not imply the classification of the strike as being legal or illegal, as that power falls under the remit of the judiciary in Colombia; and (iv) the Administrative Courts of both Cundinamarca and Antioquia rejected the applications for amparo lodged by the ACDAC, considering that the administrative decision to convene the tribunal was legal.
20. 250. The Committee observes that it appears from the above that the complainant organizations are denouncing, on the one hand, the referral of the dispute opposing them to the enterprise to compulsory arbitration and, on the other hand, the fact that the administrative convening of the arbitration preceded the judicial declaration of the illegality of the strike.
21. 251. With respect to the referral to an arbitration tribunal of the dispute that is the subject of the present complaint, the Committee recalls that it has considered that in as far as compulsory arbitration prevents strike action, it is contrary to the right of trade unions to organize freely their activities and could only be justified in the public service or in essential services in the strict sense of the term [see Compilation, para. 818]. Noting that the ACDAC submitted a fresh list of demands on 8 August 2017 and that the Minister of Labour ordered an arbitration tribunal to be set up on 28 September 2017, the Committee considers that, in order to maintain the space necessary for free and voluntary collective negotiation, the dispute between the enterprise and the union should have given rise to additional mediation and conciliation efforts rather than being subject to compulsory arbitration. While it notes that the arbitration award has been the subject of a pending legal action, the Committee requests the Government to take the necessary measures to ensure that in future, any disputes relating to the renewal of the collective agreement of the enterprise are resolved by way of negotiation and voluntary dispute settlement mechanisms in accordance with the principles of freedom of association.
22. 252. Regarding the allegation that the CUT was denied the right to participate in the legal proceedings related to the ruling that the strike called by the ACDAC, a trade union organization affiliated to the CUT, was illegal, the Committee notes the complainant organizations’ assertion that the courts of both first and second instance: (i) denied the CUT the ability to act as an added party to the ACDAC, the defendant in the proceedings, incorrectly requiring the CUT to prove substantial and concrete involvement in the proceedings; (ii) in this way they failed to recognize the legitimacy of the CUT to defend the fundamental guarantees of freedom of association in all necessary forums and violated Article 6 of Convention No. 87, which stipulates that federations and confederations shall enjoy all the guarantees provided for in the Convention. The Committee notes the enterprise’s statement that the Supreme Court of Justice upheld the ruling of the Bogota High Court, in that it denied the CUT the ability to act as an added party “insofar as (…) it was only admissible when the third party seeking to intervene was likely to be impacted if the person it sought to assist was defeated in court”, which it did not deem to be the situation in this case.
23. 253. While taking due note of the information provided by the parties, the Committee emphasizes the importance for workers’ and employers’ organizations to be able to receive full support from the federations and confederations to which they are affiliated, and it trusts that the Government will ensure full respect for the above-mentioned.
24. 254. With regard to the alleged replacement of the striking pilots through the contracting of foreign pilots on the basis of a Civil Aviation Authority ruling dated 3 October 2017, the Committee notes that the Government and the enterprise state that: (i) the ruling in question was of a general nature and with an erga omnes effect to broaden the opportunities for all the airlines to contract foreign captains in Colombia; (ii) the ACDAC lodged an action for protection of rights against the ruling, which was first suspended and later declared to be illegal; and (iii) in accordance with the result of the action for protection of rights, the enterprise refrained from contracting foreign captains. While recalling that strikers should be replaced only: (a) in the case of a strike in an essential service in the strict sense of the term in which the legislation prohibits strikes; and (b) where the strike would cause an acute national crisis [see Compilation, para. 917], the Committee, in the light of the information provided by the Government and the enterprise, will not pursue the examination of this allegation.

Allegations concerning the anti-union consequences of the ruling that the strike was illegal

1. 255. With regard to the allegations of mass dismissals and penalties imposed against union members for exercising their legitimate right to strike, the Committee notes that according to the complainants over 100 unionized pilots were dismissed and a further 100 had penalties imposed on them without the Ministry of Labour or the courts providing the due protection in the face of numerous irregularities and arbitrariness committed in the disciplinary proceedings. The Committee also notes that the Government and the enterprise state that: (i) in accordance with section 450(2) of the Substantive Labour Code, the employer is authorized to dismiss workers who have participated in a strike declared illegal by the courts; (ii) the majority of the striking pilots continue to form part of the enterprise (of the 702 pilots who participated in the strike, 232 were disciplined, resulting in 83 dismissals and 129 suspensions); (iii) only when there was certainty that a pilot promoted the strike, participating actively in it, did the enterprise proceed to terminate the contract of employment, while passive participation in the strike only resulted in a penalty of suspension; (iv) all the disciplinary guarantees applicable to the enterprise were respected; (v) workers who were dismissed without having participated actively in the strike may assert their rights before the judicial authority; (vi) indeed, a number of workers involved in the events of the present case lodged an action for protection of rights requesting their reinstatement; and (vii) while in some cases the courts ruled in favour of the enterprise and the Ministry of Labour (ruling No. T-509 of 2019), in others, the courts upheld the actions of the workers (ruling No. SU-598 of 2019), which invalidates the alleged lack of protection of their fundamental rights and again demonstrates the full independence of the judiciary.
2. 256. The Committee takes due note of these various elements. The Committee recalls that it has considered that no one should be penalized for carrying out or attempting to carry out a legitimate strike, and that the dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98 [see Compilation, paras 953 and 957]. In the light of its conclusions on the strike action carried out by the ACDAC and taking into account, in particular, the need, highlighted by the Supreme Court, to bring the legislative provisions prohibiting any strikes in the airline sector into conformity with the principles of freedom of association, the Committee trusts that with the technical assistance of the Office, the Government, will facilitate contacts between the enterprise and the complainant organization in order to address the situation of the pilots who were dismissed as a result of their participation in the strike and thus contribute to a lasting resolution of the dispute that is the subject of the present case.
3. 257. With regard to the legal action initiated by the enterprise to seek the dissolution of the ACDAC as a consequence of the illegal nature of the strike it held, the Committee notes with satisfaction that the enterprise, with a view to contributing to the strengthening of social dialogue, decided to withdraw this legal action on 28 October 2020.
4. 258. While it recalls that it has considered that the dissolution of a trade union is an extreme measure and recourse to such action on the basis of a picket action resulting in the disruption of a public event, the temporary termination of an organization’s activities or the disruption of transport, is clearly not in conformity with the principles of freedom of association [see Compilation, para. 1000], the Committee will not pursue its examination of this allegation. Similarly, the Committee notes that, for the reasons described above, the enterprise also decided to withdraw its civil case seeking to obtain compensation from the ACDAC for the damages caused by the strike. The Committee will therefore not pursue its examination of this allegation.
5. 259. With regard to the criminal proceedings brought against ACDAC trade union leaders for calling the strike, which, according to the allegations made by the complainant organizations, constituted a means of criminalizing the trade union action, the Committee notes that the complainant organizations allege that the Public Prosecutor’s Office initiated criminal proceedings against ACDAC trade union leaders for alleged obstruction of justice and that the president of the organization, Mr Jaime Hernández, was charged at the beginning of 2018 with the offence of economic panic following a complaint made by the enterprise. The Committee notes that the enterprise states that a criminal complaint has indeed been lodged against the president of the ACDAC at the request of the Public Prosecutor’s Office, but concerning events unrelated to his functions in defence of the interests of the pilots in his organization, as he circulated false information about the enterprise on a television programme about an accident involving a foreign airline entirely unconnected to the enterprise. Regarding this point, the Committee notes that the Government states that: (i) the events are entirely unrelated to the exercise of freedom of association, the person charged is the individual and not the trade union organization, and consequently the Committee is not competent in this respect; and (ii) a preliminary hearing was being scheduled for 21 May 2019.
6. 260. The Committee notes this information. Regarding the criminal action taken against the president of the ACDAC for statements made on television, while it does not have the elements necessary to give its opinion on the matters pertaining to the criminal action, the Committee recalls that it has considered, on the one hand, that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of ordinary criminal law, the arrest of, and criminal charges brought against, trade unionists may only be based on legal requirements that in themselves do not infringe the principles of freedom of association and, on the other hand, that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, these organizations should respect the limits of propriety and refrain from the use of insulting language [see Compilation, paras 133 and 236]. The Committee emphasizes the importance of the Committee’s decisions mentioned above and requests the Government to keep it informed of developments in the criminal proceedings under way.
7. 261. Regarding the alleged illegal interceptions the trade union and its members were subjected to by persons connected to the enterprise and public officials, the Committee notes that the complainant organizations allege that: (i) in July 2017 the criminal courts convicted an official of the Public Prosecutor’s Office for the illegal interceptions that the unionized pilots belonging to the ACDAC were subjected to during the strike; and (ii) the ruling indicates that the enterprise’s lawyers had an interest in intercepting the pilots’ conversations throughout the collective dispute. The Committee notes, furthermore, that the enterprise states that: (i) it has nothing to do with the interceptions; (ii) no judicial decision or criminal investigation has been brought against the enterprise; (iii) as a result of the arrest of the national representative of the investigation company contracted to investigate corporate fraud of which it was a victim, the enterprise has suspended its relations with the national branch of the investigation company until the Public Prosecutor concludes the corresponding investigation; (iv) the enterprise presented itself as a victim through a group of shareholders and is recognized as such by the courts of the Republic in the proceedings; and (v) on 4 July 2019 the Public Prosecutor in charge of the file requested the evaluation of protection measures for an executive from the enterprise, and in October 2019 initiated a procedure for precautionary protection measures before the Inter-American Commission on Human Rights. The Committee also notes that the Government states in its various communications that: (i) the matter is in the hands of the criminal courts, which will have to determine liability and assess the penalty for this conduct, if the evidence so permits; and (ii) it is known that Mr Luis Carlos Gómez Góngora was sentenced to eight years of prison for procedural fraud, unlawful violation of communications and falsification of public documents.
8. 262. The Committee duly notes this information, which shows that the investigations and criminal proceedings relating to the illegal interceptions that the ACDAC was subjected to already led, in July 2019, to an eight-year sentence for a former official of the Public Prosecutor’s Office, and that the former leader of a private investigation company has been detained since November 2018 while the corresponding criminal investigations are being completed. The Committee expresses its concern about the illegal interceptions, particularly in the delicate context of a strike. In this respect, the Committee recalls that it has considered that tampering with correspondence is an offence which is incompatible with the free exercise of trade union rights and civil liberties and that the International Labour Conference in its 1970 resolution on trade union rights and their relation to civil liberties stated that particular attention should be given to the right to the inviolability of correspondence and telephone conversations [see Compilation, para. 270]. The Committee firmly expects that the relevant institutions will continue to take all appropriate measures with a view to rapidly identifying those responsible and punishing the perpetrators and instigators of the interceptions in question. The Committee requests the Government to keep it informed in this regard.
9. 263. Regarding the death threats made against ACDAC union leaders and members of their families reported by the complainant organizations in February 2020, the Committee notes that the Government states that: (i) it only found out about the threats as a result of the ILO forwarding the corresponding communications from the complainant organizations; (ii) the Ministry of Labour immediately alerted the UNP, which, until that point, had no knowledge of the threats; and (iii) consequently, the president of the ACDAC was asked to forward all available information to the UNP to enable it to provide the due and immediate protection. Recalling that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected [see Compilation, para. 84], the Committee trusts that the Government will continue to pay close attention to the security situation of the ACDAC union leaders so that any protection they might need can immediately be provided.
10. 264. With regard to the alleged suspension by the enterprise of transfers to the ACDAC of the trade union dues of the enterprise’s pilots, the Committee notes the Government’s indications that the enterprise has been promptly depositing the trade union dues as shown by the certification of trade union dues deducted from the unionized pilots in 2017, 2018 and up until January 2019. In the light of this information and in the absence of any new information from the complainant organizations in this regard, the Committee will not pursue its examination of this allegation.
11. 265. Lastly, the Committee takes due note of the progress made in the dialogue between the enterprise and the ACDAC reported by the Government, the enterprise and the complainant organizations from 2019. The Committee notes in particular in this regard, in the context of the acute crisis affecting the global airline sector, the agreement concluded by the enterprise and the ACDAC on 27 October 2020 with a view to preserving the viability of the enterprise and jobs therein. While it observes that the agreement does not encompass all of the existing differences between the parties, the Committee welcomes this important step forward and trusts that its present conclusions and recommendations will help the parties to leave behind definitively the conflict that they have experienced in the course of the past decade.

The Committee’s recommendations

1. 266. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures to ensure that, in future, any disputes relating to the renewal of the enterprise’s collective agreement are resolved by way of negotiation and voluntary dispute settlement mechanisms in accordance with the principles of freedom of association.
   • (b) In the light of its conclusions on the strike action at issue in the present case and taking into account, in particular, the need, as highlighted by the Supreme Court, to bring the legislative provisions prohibiting any strikes in the air transport sector into conformity with the principles of freedom of association, the Committee requests the Government, in consultation with the most representative social partners from the country, to take the necessary measures as soon as possible to review the legislation in the sense referred to above, ensuring the establishment of a mechanism for negotiating minimum services in the event of strikes in the sector. The Committee invites the Government to avail itself of ILO technical assistance in this regard.
   • (c) With respect to the criminal proceedings brought against the president of the ACDAC, the Committee emphasizes the importance of its decisions mentioned in the conclusions and requests the Government to keep it informed of developments in the criminal proceedings under way;
   • (d) The Committee firmly expects that the relevant institutions will continue to take all appropriate measures with a view to rapidly identifying those responsible and punishing the perpetrators and instigators of the illegal interceptions to which the ACDAC was subjected. The Committee requests the Government to keep it informed in this respect; and
   • (e) The Committee trusts that the Government will continue to pay close attention to the security situation of the ACDAC union leaders so that any protection they might need can immediately be provided.