Rapport intérimaire - Rapport No. 322, Juin 2000

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. 83. The Committee last examined this case at its November 1999 meeting (see 319th Report, paras. 170-179). The Government sent its observations in communications dated 9 March and 9 May 2000.
2. 84. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 85. The Committee observes that the complainant organization had alleged that in the process of collective bargaining, the trade union USO and the enterprise ECOPETROL had excluded ADECO and entered into a collective agreement (the legality of which was questioned by the complainant) which was also being applied to members of ADECO, despite the fact that the other union (USO) did not represent more than 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 had: (1) caused ADECO members to lose the acquired rights which they had enjoyed under the terms of an agreement concluded in 1997 with the management of ECOPETROL (which ADECO claims to be valid); (2) resulted in discrimination against them in terms of the entitlements and benefits enjoyed by the other workers; (3) led to the loss by ADECO of trade union safeguards such as trade union immunity, union leave, etc.; (4) forced members of ADECO to pay dues to USO; and (5) when the collective agreement was signed, led to representatives of the company putting pressure on workers to leave the union, which had resulted in a large number of resignations. In this context, the Committee recalls that in its previous examination of the case it had noted the Government's statement that the vast majority of the allegations had been examined and resolved by an administrative decision, and it had deeply deplored the fact that it could not be deduced from the information provided by the Government that the inquiry initiated by the administrative authorities had covered all the allegations made by the complainant.
2. 86. At its November 1999 meeting the Committee accordingly made the following recommendation (see 319th Report, para. 179):
3. The Committee once again urges the Government to take immediate steps to initiate an inquiry into all of the allegations made by the complainant organization ADECO and, on the basis of the information obtained, to communicate detailed observations in this respect, and to send the text of all the administrative decisions handed down to date.
4. B. The Government's reply
5. 87. In its communications dated 9 March and 9 May 2000 the Government states that an administrative inquiry was done into the case. The matters which were investigated by the Ministry were: the refusal to pay ADECO members the half-yearly bonus provided for in Agreement 01 of 1997; the exclusion of ADECO from the joint occupational health committee; the reduction in the wages and social benefits of members of ADECO, such as their non-reclassification in the work schedules; and the double deduction of trade union dues. The Government states that ADECO has abandoned the other allegations presented in this case, except for those that were the subject of the administrative investigation (a copy of the decision signed by ADECO in this respect in the presence of authorities of the Ministry of Labour is attached to the Government's reply). The Ministry of Labour and Social Security with Ruling No. 00373 of 18 February 2000, decided to conclude the administrative investigation in the following terms, after having examined the four allegations of violation of freedom of association presented by the complainant organization: "States that the enterprise ECOPETROL did not violate the right of association ..." based on the fact that section 354 of the Labour Code states clearly the acts which constitute a violation of the right of association by an employer and none of these acts could be attributed to the enterprise in relation with the double deduction of union dues for the members of ADECO, one for the affiliation to this organization and the other for the benefits of the agreement. "Fined the enterprise ECOPETROL for a sum of 20 monthly minimum wages representing an amount of five million two hundred and two pesos (5,000,202.00) for illegal deduction of salary." The Government adds that an appeal has been lodged against Ruling No. 00503 of 18 April 2000 which had confirmed the conclusions of the administrative investigation. The appeal is still pending.
6. 88. Finally, the Government encloses a copy of the collective agreement for 1999-2000 and of the final record showing that ADECO took part in the negotiations on the agreement.

C. The Committee's conclusions

1. 89. The Committee recalls that in its previous examination of the case, it had urged the Government to take immediate steps to initiate an inquiry into all the allegations made by the complainant organization ADECO (specifically, the complainant had alleged that, in the process of collective bargaining, the trade union USO and the enterprise ECOPETROL had excluded ADECO and entered into a collective agreement which had: (1) caused ADECO members to lose the acquired rights which they had enjoyed under the terms of a 1997 agreement with the management of ECOPETROL - which ADECO claims to be valid; (2) resulted in discrimination against ADECO members in terms of the entitlements and benefits enjoyed by the other workers; (3) led to the loss by ADECO of trade union safeguards such as trade union immunity, union leave, etc.; (4) forced members of ADECO to pay dues to USO; and (5) when the collective agreement had been signed, led to representatives of the company putting pressure on workers to leave the union, which had resulted in a large number of resignations) and, on the basis of the information obtained, to communicate detailed observations in this respect and to send the text of all the administrative decisions handed down to date.
2. 90. The Committee notes the Government's statement that: (1) on 16 January 1999, in the presence of the administrative authority, the complainant abandoned some of the allegations it had presented, while maintaining the following: non-payment to ADECO members of the half-yearly bonus provided for in Agreement 01 of 1997; exclusion of ADECO from the joint occupational health committee; reduction in wages and social benefits for ADECO members; and double deduction of union dues; (2) the Special Labour Inspection, Monitoring and Control Unit of the Ministry of Labour conducted an administrative inquiry which concluded that the enterprise ECOPETROL did not violate the right of association with regard to the double deduction of union dues but nevertheless fined the enterprise to an amount representing 20 monthly minimum wages for illegal deduction of salary; an appeal has been lodged against this decision.
3. 91. In these circumstances and bearing in mind the fact that, according to the Government, a new collective agreement has been signed for 1999-2000 in whose negotiation the complainant organization ADECO took part, the Committee requests the Government to keep it informed of the outcome of the appeal lodged against the decision which followed the administrative investigation.
4. 92. Finally, the Committee observes that following the direct contacts mission which took place in Colombia in February 2000, the complainant presented new allegations in a communication dated 27 March 2000, which were transmitted to the Government for its comments. Considering that these allegations were submitted very recently, the Committee is unable to examine them in the present report.

The Committee's recommendations

1. 93. 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 keep it informed of the outcome of the appeal lodged against the decision which followed the administrative investigation carried out by the Ministry of Labour.
   • (b) The Committee requests the Government to send its observations concerning the new allegations presented by ADECO.