Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 344, Mars 2007

Cas no 2448 (Colombie) - Date de la plainte: 31-AOÛT -05 - Clos

Allegations: The World Confederation of Labour (WCL) alleges that SUPERTIENDAS y Droguerías Olímpica SA is not complying with the collective agreement concluded with SINALTRAOLIMPICA, that Ms María Gilma Barahona Roa has been refused registration as a member of the executive board of SINUTSERES and that the Cundinamarca branch of the Red Cross is not respecting the package of benefits agreed upon in the collective agreement

802. The Committee last examined this case at its May 2006 meeting (see 342nd Report, approved by the Governing Body at its 297th Session, paras 373–411). The General Confederation of Labour of Colombia (CGT) presented new allegations in communications dated 12 June and 28 July 2006.

1. 803. The Government sent is observations in communications dated 1 September and 26 October 2006.
2. 804. 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), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 805. At its previous meeting, the Committee made the following recommendations [see 342nd Report, para. 411]:
2. (a) Regarding the allegations that SUPERTIENDAS y Droguerías Olímpica SA has violated clause 35 of the collective agreement concluded with the trade union organization, the National Union of Workers of SUPERTIENDAS y Droguerías Olímpica SA (SINALTRAOLIMPICA), which sets the wages that must be paid to minors providing packing services outside the company:
3. (i) the Committee requests the Government to take the necessary measures to ensure that the minor workers are able freely to exercise their trade union rights in order to defend their rights and interests, irrespectively of whether they work directly with SUPERTIENDAS y Droguerías Olímpica SA or are self-employed workers or work for a cooperative;
4. (ii) the Committee requests the Government to send it a copy of the collective agreement so that it can determine the scope of clause 35.
5. (b) Regarding the refusal by the authorities to register as a member of the executive committee Ms María Gilma Barahona Roa, elected by the National Assembly of the National Unitary Trade Union of Official Workers and Public Servants of the State (SINUTSERES) to the post of controller (fiscal), the Committee requests the Government to take the necessary measures for her to be registered without delay.
6. (c) Regarding the allegations relating to the non-respect by the Red Cross of the package of benefits agreed upon with the Trade Union of Workers of the Red Cross (SINTRACRUZROJA), the Committee requests the Government to keep it informed of the outcome of the administrative labour inquiry into the alleged violation of the collective labour agreement.
7. B. New allegations
8. 806. In its communications dated 12 June and 28 July 2006, the General Confederation of Labour of Colombia (CGT) indicates that the inquiry opened into the alleged failure by the Red Cross to respect the package of benefits agreed in the collective agreement with SINTRACRUZROJA is still ongoing.
9. 807. The complainant organization states that two trade union organizations are present within the Colombian Red Cross, SINTRACRUZROJA and the Trade Union of National Red Cross Workers (SINTRACRONAL). The CGT alleges that, in the case of SINTRACRONAL, the Red Cross has presented two counterclaims, with the aim of replacing the collective labour agreement currently in force, despite the fact that no list of demands has been presented by the workers. It further alleges that pressure is being exerted on workers who are members of SINTRACRONAL to persuade them to abandon the collective agreement. Moreover, the complainant organization alleges that, although it made a complaint to the Ministry of Labour more than a year ago concerning the failure by the Red Cross to respect the collective agreement, measures in this regard have still not been taken.
10. C. The Government’s reply
11. 808. In its communications dated 1 September and 26 October 2006, the Government indicates the following.
12. 809. With regard to section (a) of the recommendations, concerning the allegations that SUPERTIENDAS y Droguerías Olímpica SA has violated clause 35 of the collective agreement concluded with the trade union organization SINALTRAOLIMPICA, which sets the wages that must be paid to minors providing packing services outside the company, the Government encloses a copy of the collective agreement, which sets out, under article 35, the categories of workers employed within the enterprise. Category I makes reference to contract packers.
13. 810. With regard to the right of association of the minor workers providing services outside SUPERTIENDAS y Droguerías Olímpica SA, the Government encloses the reply sent by the SUPERTIENDAS y Droguerías Olímpica SA enterprise, indicating that the minor workers have established the Minor Workers’ Pre-cooperative (COOTRAMENOR), pursuant to Act No. 79 of 1988, which provides for the existence, under the guidance of a sponsoring body, of pre-cooperative groups, which organize in order to perform activities legally permitted within cooperatives, but which are not yet in a position to establish themselves as full organizations. These are civil organizations and are not bound by any labour relationship. As a result the members of such pre-cooperatives may not join trade union organizations. The enterprise adds that the National Union of Workers of SUPERTIENDAS y Droguerías Olímpica SA (SINALTRAOLIMPICA) is an enterprise trade union and that an essential prerequisite for membership, as stipulated by law, is to be an employee of the enterprise in which the trade union is operating.
14. 811. The members of the pre-cooperative are not employees of the enterprise, nor do they work under conditions of subordination with respect to it, meaning that they cannot join the trade union organization. The enterprise adds that, for the same reason, it is impossible for clause 35 of the collective agreement concerning packers to be applied to these workers, since they do not hold a work contract with the enterprise. SUPERTIENDAS y Droguerías Olímpica SA (SINALTRAOLIMPICA) does not entertain a relationship with each member of the pre-cooperative but directly and exclusively with the Minor Workers’ Pre-cooperative (COOTRAMENOR). The collective agreement provides that the regulations contained therein shall apply to workers bound to the enterprise by a work contract. According to the enterprise, the workers described in clause 35 of the agreement as contract packers carry out different tasks from the members of COOTRAMENOR who provide packing services outside the enterprise.
15. 812. The Government also states that, pursuant to the provisions under section 383 of the Substantive Labour Code, the minimum age for membership of a trade union is 14.
16. 813. With regard to section (b) of the recommendations, concerning the refusal by the authorities to register as a member of the executive board Ms María Gilma Barahona Roa, elected by the National Assembly of the National Unitary Trade Union of Official Workers and Public Servants of the State (SINUTSERES) to the post of controller (fiscal), due to the fact that the body where she works is in liquidation, in connection with which the Committee requested the Government to take the necessary measures for her to be registered without delay, the Committee notes that, according to the Government, the National Unitary Trade Union of Official Workers and Public Servants of the State (SINUTSERES) has exhausted the available administrative channels and is entitled to go before the administrative disputes court, the body competent to review the legality of actions taken by the public administration.
17. 814. With regard to section (c), relating to the non-respect by the Red Cross of the package of benefits agreed upon with SINTRACRUZROJA, and the new allegations, the Government states that the Territorial Directorate of Cundinamarca, through resolution No. 0002245 of 28 August 2006, took the decision not to impose sanctions on the Red Cross. Appeals have been brought against this decision and these are currently pending.
18. 815. The Government adds that an administrative inquiry is currently being pursued against the Red Cross for alleged violations of the right of association of SINTRACRUZROJA (linked to the Red Cross in Cundinamarca and Bogotá), along with a further legal action before the Eleventh Circuit Labour Court.
19. 816. The Government adds that, according to information from the Executive Director of the Red Cross, Cundinamarca section, no workers have been dismissed or harassed on the grounds of their trade union membership.

D. The Committee’s conclusions

1. 817. The Committee notes the new allegations presented by the CGT, as well as the Government’s reply to the pending questions.
2. 818. With regard to section (a) of the recommendations, concerning the allegations that SUPERTIENDAS y Droguerías Olímpica SA has violated clause 35 of the collective agreement concluded with the trade union organization SINALTRAOLIMPICA which sets the wages that must be paid to minors providing packing services outside the company, the Committee notes that, according to the Government: (1) minors may join a trade union from the age of 14 onwards, pursuant to section 383 of the Substantive Labour Code; (2) in the case of SUPERTIENDAS y Droguerías Olímpica SA, the minors in question are members of a pre-cooperative, COOTRAMENOR, and hence cannot join an enterprise trade union because they are not in a labour relationship with that enterprise; (3) clause 35 of the collective agreement (copy enclosed by the Government) applies only to contract packers who are employees of SUPERTIENDAS y Droguerías Olímpica SA and who carry out different tasks from the members of COOTRAMENOR who provide packing services outside the enterprise. The Committee must firstly recall that “the Promotion of Cooperatives Recommendation, 2002 (No. 193), calls on governments to ensure that cooperatives are not set up or used for non-compliance with labour law or used to establish disguised employment relationships”. Furthermore, mindful of the particular characteristics of cooperatives, the Committee considers that associated labour cooperatives (whose members are their own bosses) cannot be considered, in law or in fact, as “workers’ organizations” within the meaning of Convention No. 87, i.e. organizations whose objective it is to promote and defend workers’ interests. In these circumstances, referring to Article 2 of Convention No. 87, the Committee recalls that the concept of worker means not only salaried worker but also independent or autonomous worker, and considers that workers associated in cooperatives should have the right to establish and join organizations of their own choosing [see Digest of decisions and principles of the Committee on Freedom of Association, fifth edition, 2006, paras 261 and 262]. In these circumstances, and in accordance with the principles set out above, the Committee once again requests the Government to guarantee the right of the minor workers of COOTRAMENOR, who carry out tasks outside SUPERTIENDAS y Droguerías Olímpica SA, to freely exercise their trade union rights in order to defend their rights and interests, irrespective of whether they work directly with SUPERTIENDAS y Droguerías Olímpica SA or are self-employed workers or work for a cooperative, and to keep it informed in this respect.
3. 819. With regard to section (b) of the recommendations, concerning the refusal by the authorities to register as a member of the executive board Ms María Gilma Barahona Roa, elected by the National Assembly of the National Unitary Trade Union of Official Workers and Public Servants of the State (SINUTSERES) to the post of controller (fiscal), due to the fact that the body where she works is in liquidation, the Committee notes that, according to the Government, the trade union may go before the administrative courts to appeal against the administrative decision denying it registration. In this regard, the Committee once again stresses that, according to the complainant organization, Ms Barahona Roa has been elected to the post of controller (fiscal) on the executive board of a nationwide trade union organization, i.e. with functions whose scope extends beyond defending the interests of workers within the body in liquidation. Secondly, although the legislation stipulates that no new collective agreement may be concluded, Ms Barahona Roa continues to play a fundamental role within the body in liquidation. This role mainly consists of defending workers’ interests during the liquidation process. Finally, the Committee recalls that, in accordance with Article 3 of Convention No. 87, the workers have the right to elect their representatives in full freedom. In these circumstances, the Committee once again requests the Government to take the necessary measures to register Ms Barahona Roa as a member of the executive board of SINUTSERES. The Committee requests the Government to keep it informed in this respect.
4. 820. With regard to section (c), relating to the non-respect by the Red Cross of the package of benefits agreed upon with SINTRACRUZROJA, the Committee notes the information from the Government to the effect that, within the framework of the inquiry that was currently under way into this matter, the administrative authority imposed no sanctions on the Red Cross, although appeal proceedings have been brought against this decision and are currently pending. The Committee requests the Government to keep it informed of the final outcome of these appeal proceedings.
5. 821. With regard to the new allegations presented by the CGT in relation to the presentation of counterclaims by the Red Cross with the aim of replacing the current collective labour agreement, despite the fact that no list of demands has been presented by the workers, the Committee observes that the Government has not sent its comments on the matter. It is the Committee’s understanding, however, that only workers are entitled to initiate collective bargaining and that the mere presentation of a counterclaim by the employer cannot on its own serve to initiate collective bargaining if it has not been preceded by the presentation of a list of demands by the trade union organization.
6. 822. With regard to the allegations concerning pressure exerted on members of the SINTRACRONAL organization to persuade them to abandon the collective agreement and the delay by the Ministry of Labour in examining and taking measures in relation to the complaints presented by the trade union organization, the Committee notes the information from the Government to the effect that an administrative inquiry is currently under way at the Red Cross for alleged violations of the right of association, along with a legal action before the Eleventh Circuit Labour Court. The Committee requests the Government to do everything in its power to hasten the administrative investigation and to keep it informed in this respect, as well as with regard to the final outcome of the legal action currently being heard.

The Committee's recommendations

1. 823. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again requests the Government to guarantee the right of the minor workers of COOTRAMENOR, who carry out tasks outside SUPERTIENDAS y Droguerías Olímpica SA, to freely exercise their trade union rights in order to defend their rights and interests, irrespective of whether they work directly with SUPERTIENDAS y Droguerías Olímpica SA or are self-employed workers or work for a cooperative, and to keep it informed in this respect.
   • (b) With regard to the refusal by the authorities to register as a member of the executive board Ms María Gilma Barahona Roa, elected by the National Assembly of the National Unitary Trade Union of Official Workers and Public Servants of the State (SINUTSERES) to the post of controller (fiscal), the Committee once again requests the Government to take the necessary measures to register Ms Barahona Roa as a member of the executive board of SINUTSERES. The Committee requests the Government to keep it informed in this respect.
   • (c) With regard to the non-respect by the Red Cross of the package of benefits agreed upon with SINTRACRUZROJA, the Committee requests the Government to keep it informed of the final outcome of the legal appeals that have been brought.
   • (d) With regard to the allegations concerning pressure exerted on members of the SINTRACRONAL organization to persuade them to give up the collective agreement and the delay by the Ministry of Labour in examining and taking measures in relation to the complaints brought by the trade union organization, the Committee requests the Government to do everything in its power to speed up the administrative investigation and requests the Government to keep it informed in this respect, as well as with regard to the final outcome of the legal action currently under way.