Rapport intérimaire - Rapport No. 344, Mars 2007

Cas no 2493 (Colombie) - Date de la plainte: 23-MAI -06 - Clos

Allegations: Anti-union discrimination against the official workers belonging to the trade union organization; the presentation of counter demands by the enterprise; the preparation of a voluntary benefits plan to undermine the trade union organization; the conclusion of a collective pact with workers not belonging to the trade union and the consequent pressure put on union members to leave the trade union; and the abolition of agreed benefits enjoyed by 114 official workers under the terms of a decision by the Council of State

845. This complaint appears in a communication dated 23 May 2006 from the National Trade Union of Workers in La Previsora SA Insurance Company (SINTRAPREVI).

1. 846. The Government sent its observations in a communication dated 26 October 2006.
2. 847. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 848. In its communication of 23 May 2006, SINTRAPREVI alleges acts of anti-union discrimination within the La Previsora SA insurance company in that the wages of the 577 “official workers” belonging to the trade union organization have not been increased since January 2003, although according to the trade union organization, higher-ranking official workers in the company have received a wage increase of between 3.5 and 4.8 per cent. The complainant organization adds that administrative and legal proceedings were initiated without success. Furthermore, the enterprise has presented seven counter demands with the aim of undermining the existing agreement.
2. 849. Moreover, on 29 June 2005, the enterprise proceeded to approve a “voluntary benefits plan” with the aim of persuading the workers to leave the trade union en masse. According to the complainant organization, the enterprise had already had sanctions imposed on it by the Constitutional Court for similar practices. On 6 July, the voluntary benefits plan was approved and, during the months of January and February 2006, the executives of La Previsora SA promoted the signing of a collective pact, thus inciting employees to leave the trade union organization.
3. 850. Finally, the trade union organization alleges that, on 18 May 2006, a total of 114 officials and official workers of the enterprise were notified that they had lost the benefits established under the Statute governing Executives (Estatuto del Directivo), partially annulled on 16 February 2006 by the Second Section, Subsection A, of the Administrative Disputes Division of the Council of State.
4. B. The Government’s reply
5. 851. In its communication of 26 October 2006, the Government states that, with regard to the wage increase, the trade union organization lodged an amparo action (for the protection of constitutional rights) in order to obtain the wage increase but this was not granted, the following ruling being issued in the first and second instances:
6. Consequently, the fact that workers of one enterprise have received a wage increase, while others working for the same enterprise have not, does not mean that the latter find themselves in a situation of inequality, given that the complainants are “official workers” covered by Act No. 6 of 1945, Regulatory Decree No. 2127 of the same year, and the collective agreement, while the executives, as they are referred to by the complainants, are public employees appointed by decree, whose wages were set in 2005 in accordance with Decree No. 926 of 30 March of that year.
7. Therefore, in the case in question, although the complainants believe that they are in a situation of inequality and that their other rights are being infringed, given that the situation arose owing to a collective labour agreement, the trade union organization should initiate a labour dispute with the enterprise, denouncing the agreement within the 60 days prior to its automatic extension, in accordance with the interpretation of article 479 of the Substantive Labour Code contained in Constitutional Court Decision C-1050 of 4 October 2001: “… the effect of the denunciation of the collective agreement by the employer is understood, in terms of the charges making up the complaint and the agreement challenged, to be limited to a unilateral declaration of disagreement regarding the continuation of that agreement, the workers being the ones who determine whether they will initiate a collective dispute by presenting the corresponding list of demands, although the shortcomings of the list of demands cannot be remedied through the tutela (protection of constitutional rights) procedure, which may not be employed as a substitute for normal defence procedures.”
8. It therefore makes no sense for the complainants to resort to a tutela procedure in order to force the enterprise La Previsora SA to grant the official workers a wage increase on the same terms as those enjoyed by the public employees, because the residual and subsidiary nature of the tutela procedure makes it impossible for it to be employed with regard to such issues, especially where the wage increases for the official workers were addressed in the collective agreement.
9. 852. For its part, the enterprise states in a communication attached by the Government, that the trade union organization did not present a list of demands in 2003, 2005 or 2006, and for this reason it was not possible to negotiate wage increases for its members. According to the enterprise, although it denounced the collective agreement on 31 December 2002, with a view to seeking changes to that agreement, the trade union organization did not present a list of demands and negotiation was not possible because only trade union organizations are permitted to initiate the negotiation process. According to the communication issued by La Previsora SA, the enterprise invited the trade union organization, through an informal process, to take part in discussions on wage increases and the changes proposed by the company with a view to improving competitiveness in the private market. According to the enterprise, it was the intransigence of the trade union that prevented any agreement from being reached.
10. 853. As to the voluntary benefits plan, the Government states that the trade union organization has not presented any evidence to support its allegations, and the enterprise denies that it has been planning any such voluntary benefits plan.
11. 854. The collective labour pact, as has been explained on various occasions, is a tool provided for under Colombian labour law and, like a collective agreement, is an instrument or mechanism for collective bargaining, its purpose being to resolve and end collective labour disputes and prevent them from giving rise to strike action. On this subject, in Decision No. SU-342/95, the Constitutional Court ruled that:
12. … the Court holds that the freedom of employers to conclude collective pacts which coexist alongside collective agreements, when this is permitted according to the above points, is also limited by constitutional provisions. All of the above allows the Court to establish as a general rule the following: the freedom of employers to regulate labour relations through collective pacts, when those pacts are to coexist with collective agreements within the enterprise, is restricted or limited by the totality of rights, values and principles recognized by the Constitution. In other words, that freedom remains intact and is constitutionally and legally protected but may not be exercised or employed by the employer in such a way as to undermine the fundamental rights of the workers and the trade union organization.
13. 855. The collective labour pact is a legal instrument which, like the collective labour agreement, sets conditions governing the employment contract but which must at no time undermine the rights of unionized workers. In the present case, a group of workers proposed that the enterprise conclude a pact in order to resolve a dispute which had a negative outcome for the workers. This was an initiative on the part of the workers, rather than the enterprise, consistent with 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). In its communication, the enterprise states that some non-unionized workers had been considering the possibility of obtaining majority support that would make it possible to seek a comprehensive solution to the lengthy dispute between the enterprise and the trade union, through the signing of a collective pact covering the majority of the enterprise’s workers.
14. 856. As to the abolition, by virtue of a Council of State ruling, of the benefits of 114 officials established under the Statutes governing Executives, the Government states that, since the ruling abolishing the benefits was issued by the Second Section, Subsection A, of the Administrative Disputes Division of the Council of State, the Government is not competent to question it, according to the terms of article 113 of the Political Constitution, which concerns the separation of powers. The enterprise states that all it has done is to comply with the court ruling.

C. The Committee’s conclusions

1. 857. The Committee takes note of the allegations presented by SINTRAPREVI, the Government’s reply to those allegations, and the enterprise’s communication, also transmitted by the Government.
2. 858. The Committee notes that the allegations refer to: (a) anti-union discrimination on the part of the enterprise La Previsora SA against 577 official workers belonging to the trade union organization; this discrimination manifested itself in the form of the refusal, since January 2003, to increase wages, despite the fact that, within the enterprise, the wages of other, higher-ranking official workers have been increased; (b) the presentation of counter demands by the enterprise on seven occasions with the aim, according to the complainant organization, of abolishing the benefits gained as a part of the collective agreement in force; (c) the preparation of a voluntary benefits plan with a view to encouraging workers to leave the trade union organization en masse; (d) pressure placed on the workers to sign a non-union collective accord and to leave the trade union organization; and (e) the abolition of the agreed benefits of 114 official workers, established under the Statutes governing Executives, annulled by the Second Section, Subsection A, of the Administrative Disputes Division of the Council of State.
3. 859. As to the alleged discrimination against those unionized official workers who have not received a wage increase since January 2003, the Committee notes that, according to the Government and the enterprise, this increase may only be established within the framework of the collective bargaining process, and that the trade union organization has not presented a list of demands since 2002, despite the various invitations issued by the enterprise to do so. The Committee notes that the legal proceedings initiated by the trade union organization did not succeed because the trade union organization has not denounced the collective agreement in force and has not presented a list of demands, both of these steps being necessary for wage negotiations to take place.
4. 860. As to the presentation of seven counter demands by the enterprise, the Committee notes that, according to the Government and the enterprise, the intention was to change the substance of the agreement. However, they state that, according to the law, only trade union organizations are entitled to initiate collective bargaining processes and, therefore, should the union not present a list of demands, then the counter demands have no effect. The Committee recalls that the opportunity which employers have, according to the legislation, of presenting proposals for the purposes of collective bargaining – provided these proposals are merely to serve as a basis for the voluntary negotiation to which Convention No. 98 refers – cannot be considered as a violation of the principles applicable in this matter [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 931].
5. 861. As to the preparation of a voluntary benefits plan with the aim of persuading the workers to leave the trade union en masse, the Committee notes the Government’s statement to the effect that the trade union organization has not presented sufficient evidence in this respect and that the enterprise denies the existence of such a plan. This being the case, the Committee requests the complainant organization to provide further information concerning this allegation.
6. 862. As to the alleged pressure on workers to sign a non-union collective accord and, consequently, to leave the trade union organization, the Committee notes the Government’s explanation concerning the Colombian legal system, which provides for the existence of both collective agreements and collective accords. The latter may be concluded only in cases where the trade union organization present in an enterprise does not represent 30 per cent of the workers. The Committee notes that, according to the enterprise, the non-unionized workers were considering the possibility of obtaining majority support for the conclusion of a collective accord. Taking into account the fact that the complainant organization alleges that pressure was put on unionized workers to sign the collective accord, and noting that according to the legislation, in order to make this possible, the unionized workers would have to leave the trade union, the Committee requests the Government to take the necessary measures to ensure that an investigation is carried out to determine whether, when the signing of the collective accord was being promoted, unionized workers were put under pressure. The Committee requests the Government to keep it informed in this respect.
7. 863. As to the allegations concerning the abolition of the benefits of 114 official workers established under the terms of the Statues governing Executives, annulled by the Second Section, Subsection A, of the Administrative Disputes Division of the Council of State, the Committee notes the Government’s statement to the effect that this was a judicial ruling and, consequently, it (the Government) is not competent to question that ruling. The enterprise, for its part, states that it is obliged to comply with legal rulings. The Committee notes that, according to the statutes provided by the trade union organization, the benefits in question are granted by a unilateral ruling of the executive board of the enterprise in favour of workers holding management posts in that enterprise. However, the Committee does not have a copy of the Administrative Disputes Division ruling, which would indicate the reasons for annulling the statutes. This being the case, the Committee requests the Government to send a copy of the ruling of the Second Section, Subsection A, of the Administrative Disputes Division of the Council of State, so that it may be in full possession of the facts when coming to a decision.

The Committee's recommendations

1. 864. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the complainant organization to provide further information concerning its allegations regarding the preparation of a voluntary benefits plan with the aim of encouraging workers to leave the trade union organization en masse.
   • (b) The Committee requests the Government to take the necessary measures to ensure that an investigation is carried out with a view to determining whether, when the signing of a non-union collective accord was being promoted, unionized workers were put under pressure, and requests the Government to keep it informed in this respect.
   • (c) As to the allegations concerning the abolition of benefits of 114 official workers established under the Statutes governing Executives by virtue of the ruling of the Second Section, Subsection A, of the Administrative Disputes Division of the Council of State, the Committee requests the Government to send a copy of the ruling in question.