Rapport intérimaire - Rapport No. 314, Mars 1999

Cas no 1973 (Colombie) - Date de la plainte: 31-JUIL.-98 - Clos

Allegations: Favourable treatment of a particular trade union organization, violation of the right to collective bargaining, discrimination against members of an organization, interference by an employer and anti-union practices

1. 114. The complaint is set out in a communication dated July 1998 presented by the Association of Managers and Technical Staff of the Colombian Petroleum Industry (ADECO). The Government replied in a communication dated 15 January 1999.
2. 115. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 116. In its communication of July 1998, the Association of Managers and Technical Staff of the Colombian Petroleum Industry (ADECO), which operates in the Colombian Petrol Company (ECOPETROL), a state-run commercial and industrial enterprise employing 10,877 workers (including 4,300 technical staff), explains that it is an industrial trade union and that ADECO workers are covered by the Substantive Labour Code, while its managerial staff, technical staff and personnel employed in positions of confidence are, in accordance with the provisions applied to ADECO, covered by performance-related pay provisions distinct from the system agreed by the company through the relevant collective agreements, it being expressly stipulated in the relevant special pay scheme that in any event, pay and benefits for the staff in question shall not be inferior to those currently applied (Executive Decree No. 1209 of 1994). This special pay scheme is governed by the ECOPETROL Agreement No. 01 of 1977 which was updated every two years (until July 1997) whenever the collective agreement applicable to the other workers (which the Workers' Trade Union USO had signed) was reviewed.
2. 117. ADECO explains that it registered as a trade union with the Ministry of Labour on 20 August 1996 and, in November 1996, asked the authorities to carry out a trade union census for the purposes of collective bargaining.
3. 118. ADECO adds that it signed an agreement with USO on 22 October 1996 stipulating that a list of claims would be drafted jointly and that an ADECO delegate would be allowed to participate as a negotiator during talks on the next collective agreement. This agreement was not respected by USO following the adoption of a decision by its assembly; the need for a trade union census was ignored (ADECO and USO were both minority unions, neither of them representing 50 per cent of the workforce), and precedence was given to USO under the collective agreement. ADECO states that USO signed an accord with the company on 19 November 1996 and, for reasons of political expediency, granted ADECO only consultative status at the negotiating table (once talks had begun, it was excluded from the negotiations). After 17 February 1997, ADECO again asked the authorities to carry out a trade union census at the company. ECOPETROL refused to hold separate talks with ADECO; ADECO, therefore, again asked the Ministry of Labour for a census and for the establishment of an arbitration panel to rule on ADECO's demands as a minority union (and specifically on its right to bargain collectively as a minority union coexisting with USO, which while larger is still a minority union) for joint talks or, alternatively, arbitration.
4. 119. ADECO states that USO and ECOPETROL signed a collective agreement on 27 May 1997 which is also illegally applied to members of ADECO and impairs their acquired rights in relation to wages and benefits which had been incorporated in individual work contracts of ADECO members since Agreement No. 01 of 1977. Its purpose is to destroy ADECO. On 21 October 1996, ADECO submitted a joint list of USO-ADECO claims to the enterprise which was approved initially by the joint assembly of all the company's unionized workers. ADECO also states that, before the collective agreement was signed, the registration of USO as a trade union had been cancelled by Administrative Decision No. 0040430 of 20 December 1996 following the merger of that union with another organization (ASOPETROL), and that on 16 May 1997, ADECO unsuccessfully proposed to the company an accord separate from the collective agreement ("accord ECOPETROL-ADECO") to safeguard the rights of ADECO members. ADECO emphasizes that it did not authorize USO to sign agreements on behalf of ADECO members.
5. 120. According to ADECO, the authorities have so far not given a favourable decision on the matter of the trade union census; two appeals were lodged up to September 1997, and there has been no decision on the later appeal owing to the negligence and procrastination of the authorities. The census would be used to determine the coverage of the new collective agreement. However, the company maintains that USO took over the representative function of ADECO and therefore (unjustifiably) deducts ordinary and extraordinary subscriptions for USO from the wages of ADECO members. ADECO points out that legally, the terms of the collective agreement cannot be imposed on it. At the same time, according to ADECO, the company, through the Vice-President of Transport, shortly after the collective agreement was signed, put pressure on ADECO members to leave their organization. Resignation letters for that purpose were drawn up by company representatives, and it was made clear that those who refused to resign would lose their half-yearly bonus (which in fact subsequently occurred). This resulted in 110 resignations towards the end of May 1997. Furthermore, in implementation of the illegal collective agreement, identical rules were applied to members of ADECO as to those of USO, although the former received lower wage increases, a single scale of expenses and inferior educational benefits for children of union members, and were denied the half-yearly bonus which should have been paid on 30 May and 30 November of each year, etc. The trade union rights of ADECO were thus denied, including various union privileges, union leave and participation in joint committees. This was the reason for the resignation of 90 per cent of ADECO members (conveyed by company messengers), bringing the number of members from 300 down to 35.
6. 121. Lastly, ADECO requests that all violations of the legislation be remedied and that the trade union census be carried out in the company, given that it is not proven that USO represents more than 50 per cent of the workers, and indicates that the labour authorities did not transmit the complaints made by ADECO of violation of freedom of association in December 1996 and in January and May 1997 and did not forward them to the Attorney-General's office.

B. The Government's reply

1. 122. In its communication of 15 January 1999, the Government refers to the claims of the complainant which can be summarized under the following points: (1) the question of the validity of Agreement No. 01 of 1977 of the ECOPETROL administration and the application of its provisions to members of ADECO and to non-unionized staff employed in managerial or technical posts or in positions of trust; (2) non-discrimination (with regard to equality, freedom of association and collective bargaining) by the company against unionized workers when collective agreements are concluded or when Agreement No. 01 of 1977 is updated; (3) cessation of acts by ECOPETROL that infringe the freedom of association of ADECO, and the granting of concessions to that organization including formal recognition, without any preference being shown to other unions; (4) payment of wage increases and the half-yearly bonus, as well as of other benefits provided for in Agreement No. 01 of 1977; (5) the decision on the administrative complaints made by ADECO and concerning the trade union census requested by that union to determine the coverage of the collective agreement of 27 May 1997.
2. 123. As regards points (1) to (4), the Government states that at the time of the communication sent to the Government by the ILO's Committee on Freedom of Association, no complaint of this kind had been presented by ADECO to the Ministry of Labour and Social Security as the body responsible for monitoring compliance with laws and conventions relating to labour and social security. Given that the source of the complaint was the information provided by the ILO, which has provided a copy of the decision of the interested party, the competent official was instructed to initiate an investigation immediately, rectifying the complainant's omission, with a view to verifying the alleged facts and imposing appropriate sanctions where necessary. Once there is a final decision to conclude the case brought by ADECO before the Committee on Freedom of Association, the Government will issue a final report on the matter.
3. 124. As regards point (5), the Government states that it should be borne in mind that the administrative official in question, in the decision of 21 October 1998, accepted the withdrawal by ADECO on 8 October 1998 of its request, and for that reason proceeded to file the dossier relating to the application for a trade union census, a copy of which is supplied. For this reason, the Government emphatically rejects this particular point; the complainant lodged a claim and withdrew it, without informing the Committee on Freedom of Association at the time. This clearly shows that the complainant maliciously and irresponsibly sought to set in motion an international mechanism while failing to inform the national authorities of the case.

C. The Committee's conclusions

1. 125. In the present complaint, the complainant (ADECO) alleges that in the process of collective bargaining, the trade union USO and the enterprise ECOPETROL excluded ADECO and entered into a collective agreement (the legality of which is questioned by the complainant) which is also being applied to members of ADECO, despite the fact that the other union (USO) did not represent more that 50 per cent of the workforce at the enterprise (a legal prerequisite for negotiating on behalf of all the workers). According to the complainant, this situation has caused ADECO members to lose the acquired rights which they had enjoyed under the terms of an agreement concluded in 1997 with the administration of ECOPETROL (which ADECO claims to be valid), resulted in discrimination against them in terms of the entitlements and benefits enjoyed by the other workers, led to the loss by ADECO of trade union safeguards such as various union privileges, union leave, etc., and forced members of ADECO to pay subscriptions to USO. At the same time, the complainant ADECO stresses that the Ministry of Labour has not conducted the trade union census which it requested to determine the representativeness of the two unions operating at the enterprise, and emphasizes that USO did not comply with an accord with ADECO which guaranteed not only that a joint list of claims for negotiation would be put forward but also that an ADECO negotiator would be allowed to participate in the talks. Lastly, ADECO alleges that when the collective agreement was signed, representatives of the company put pressure on workers to leave the union, which resulted in a large number of resignations by members.
2. 126. The Committee notes the Government's statement that instructions have been given to start an investigation immediately into the allegations in question, given that ADECO had not made any complaints to the Ministry of Labour concerning many of the issues raised. The Committee also notes that ADECO on 8 October 1998 withdrew its request to the competent authority for a trade union census at ECOPETROL. The Committee requests the complainant to provide additional information concerning this withdrawal.
3. 127. Under these circumstances, the Committee requests the Government to communicate without delay the outcome of the inquiry into different aspects of this case covering all of the allegations made by the complainant.

The Committee's recommendations

1. 128. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to communicate without delay the outcome of the inquiry conducted into the different aspects of this case which should cover all of the allegations made by the complainant.
   • (b) The Committee requests the complainant to provide additional information concerning the withdrawal of the request for a trade union census at ECOPETROL.