Rapport définitif - Rapport No. 349, Mars 2008

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 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

1. 690. The Committee last examined this case at its March 2007 session and issued an interim report [see 344th Report, approved by the Governing Body at its 298th Session, paras 845–864].
2. 691. The Government sent new observations in a communication dated 4 July 2007.
3. 692. 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. Previous examination of the case

1. 693. In its previous examination of the case in March 2007, the Committee made the following recommendations [see 344th Report, para. 864]:
2. (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.
3. (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.
4. (c) As to the allegations concerning the abolition of benefits of 114 official workers established under the Statutes governing Executives (Estatuto del Directivo) 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.
5. B. The Government’s reply
6. 694. As regards recommendation (b) above, the Government states that the Regional Directorate of Cundinamarca launched an administrative labour investigation against La Previsora SA for violation of the right of association, but the investigation was closed for want of legal grounds under the terms of section 13 of the Administrative Disputes Code. The Government attaches copies of sections of the administrative labour complaint (No. 29775 of 13 July 2006), lodged by SINTRAPREVI against La Previsora SA for alleged violation of the right of association. In a ruling of 18 August 2006, the parties were summoned to attend administrative labour proceedings. On 25 August 2006, the date arranged for the proceedings, SINTRAPREVI failed to appear before the Third Inspectorate of the Regional Directorate of Cundinamarca. On 26 August, the complainant party was called on to prove the legal grounds as provided in sections 12 and 13 of the Administrative Disputes Code. When the period allowed for this elapsed, in a ruling of 18 October 2006, it was ordered that the labour proceedings regarding the complaint should be closed for want of legal grounds.
7. 695. As regards recommendation (c), the Government attaches a copy of the ruling by the Council of State and the reply sent by the Administrative Vice-Chairperson of La Previsora SA.
8. 696. The ruling by the Council of State of 16 February 2006 nullified some sections of Agreement No. 7 of 11 April 1996, issued by the executive board of the La Previsora SA insurance company, as well as Agreement No. 8 of 12 July 1996 which amended Agreement No. 7 regarding housing, education and personal loans, and resolution No. 014 of 1996 issuing regulations on the granting of loans for housing, to official employees of the La Previsora SA insurance company, who are covered by the Statutes governing Executives (Estatuto del Directivo). According to the Council of State:
9. … the Agreements in question, when considered in isolation, appear to be unilateral acts by the administration and products of the employer’s free and liberal nature, and therefore separate from any activity or will on the part of the company’s employees. Nevertheless, in order for the Agreements to achieve their goal, that of enabling workers in managerial posts to benefit from their provisions – that is, in order for them to have an impact on labour relations and to acquire real meaning in the area that they cover – it was stipulated that these employees had to express a wish to accept the Statutes governing Executives contained in the Agreement, which in turn involved accepting all the clauses, including the clause in section 7 that rules out enjoyment of the benefits provided for in the collective labour agreement.
10. Anyone who took up one of these posts subsequently had to abide by these same conditions if they signed the Statutes governing Executives, which, as the company recognizes and the complainants denounce, contain a series of benefits that are superior to those provided in the collective labour agreement, and which simultaneously prevent employees from enjoying the special benefits established in that agreement.
11. According to the Council, this situation:
12. … led these workers not to join the trade union, because there was no point in belonging to it if the benefits provided in the collective labour agreement had been relinquished. Similarly, unionized workers had to relinquish the benefits to which they were entitled because the trade union comprised over a third of the company’s workforce.
13. The ruling states further on that:
14. … SINTRAPREVI comprised over a third of the La Previsora SA workforce and therefore, in accordance with section 471 of the Substantive Labour Code (CST) – under which when the number of members of the trade union party to a collective labour agreement exceeds a third of the company’s total workforce, the terms of the agreement are extended to all workers, regardless of whether they are unionized – the workers were obliged to relinquish the benefits of the collective labour agreement. The provisions of the Statutes governing Executives could not cover them in any case, since section 7 of Agreement No. 07 of 1996 prohibits simultaneous enjoyment of the benefits contained in any collective labour agreement signed by the company and those provided in the Statutes governing Executives.
15. The Council later states:
16. … considering the fact that non-unionized workers had no involvement whatsoever in concluding the Agreements, and assuming that the acts are products of the respondent company’s free will, it could be accepted that Agreements No. 07 and 08 of 1996 are not non-union collective accords.
17. However, as soon as the workers of La Previsora SA decide to agree to their provisions, with the aim of having a legal effect on their labour relations with the company, these Agreements do become a non-union collective accord: although not every regulation contained in the Agreements as previously established by the employer has been discussed, the workers are expressing support for the Agreements as soon as they agree to their terms. The Agreements then become a non-union collective accord, even if the worker has been given the choice between accepting the conditions established by the company and relinquishing the benefits and services offered by the respondent company through the Statutes governing Executives …
18. These circumstances lead the Court to conclude that despite the fact that these acts appear to be simply liberal, the Agreements in question do in fact constitute a non-union collective accord, not only because in strict legal terms they are aimed at non-unionized staff members – since, in order to enjoy the benefits established in the Statutes governing Executives workers must relinquish those provided in the collective labour agreement which, as a general rule, are enjoyed by members of the relevant trade union only, except when, as in the case of SINTRAPREVI, the union comprises over a third of the company’s workforce – but also because the purpose of these Agreements is to regulate labour relations between signatory employees and the company, which means that both parties must comply with their terms since they form part of the respective labour contracts.
19. …
20. Having established the true legal nature of the Agreements in question and taking into account that they do in fact constitute a non-union collective accord, the Court finds that they violate the right to equality and the right of association of the respondent company’s employees.
21. In fact, while the employer’s freedom to conclude non-union collective accords is recognized, it is unacceptable for the employer to violate the rights of workers and trade unions by creating more favourable working conditions for non-unionized workers than those provided in the collective labour agreement. This situation leads to infringement of workers’ and trade unions’ right to equality since, even though the work done is identical, any worker who abides by the Statutes governing Executives is entitled to superior benefits; and either to large numbers of unionized staff members leaving the unions, or – as in this case, when this phenomenon did not occur – to a significant decrease in income for trade unions, caused by workers relinquishing the benefits agreed in the collective labour agreement, and therefore to loss of the unions’ right to receive the corresponding contributions from these workers.
22. Similarly, considering that the abovementioned Agreements do constitute a non-union collective accord, it must be concluded that the act of issuing them violated section 70 of the Substantive Labour Code, which stipulates that when a trade union comprises over a third of a company’s workforce, as is the case with SINTRAPREVI, the company is prohibited from signing collective accords. However, such was the case when the managerial workers at La Previsora SA agreed to the Statutes governing Executives contained in Agreements Nos 07 and 08 of 1996, because from then on the Agreements were classed as a collective accord.
23. …
24. It is therefore clear that, in addition to infringing section 70 of Act 50 of 1990 – which prohibits the conclusion of non-union collective accords when the trade union of a company comprises over a third of the company’s workforce – and violating the workers’ right of association – in the sense that in order to be able to enjoy the benefits offered in the Statutes governing Executives, workers are required to relinquish those provided in the collective labour agreement or to leave the trade union – the Agreements in question also violate the right to equality regarding remuneration for work.
25. This is because although they undertake equal work, workers who agree to the Statutes governing Executives will, at the whim of La Previsora SA, receive a higher salary and better benefits and services than others who work under identical conditions, as the complainants stress and as even the company recognizes.
26. 697. The Government also attaches a copy of a communication from La Previsora SA in which it states that on 15 November 2006 a collective labour agreement with SINTRAPREVI was signed for the period 2007–10.

C. The Committee’s conclusions

1. 698. The Committee takes note of the Government’s response to recommendations (b) and (c).
2. 699. As regards recommendation (b), the Committee recalls that it had requested the Government to carry out an investigation with a view to determining whether, when the signing of a non-union collective accord was being promoted early in 2006, unionized workers were put under pressure. In this respect, the Committee takes note of the information provided by the Government, according to which the Regional Directorate of Cundinamarca launched an administrative labour investigation against La Previsora SA for violation of the right of association, but the investigation was closed on 18 October 2006 for lack of legal grounds under article 13 of the Administrative Disputes Code, since SINTRAPREVI failed to attend the hearings to which it had been summoned. However, the Committee observes that this investigation was undertaken before the Committee issued its conclusions and recommendations, which consequently could not have been taken into account. Despite this, taking into account the information provided by the Government regarding the signing of the collective labour agreement with SINTRAPREVI on 15 November 2006 (a copy of which is attached), it appears to the Committee that the dispute between the parties as regards the signing of a non-union collective accord has been settled.
3. 700. As regards recommendation (c) concerning the allegations made by SINTRAPREVI 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 takes note of the copy of this ruling sent by the Government. In this respect, the Committee observes that, on 16 February 2006, the Council of State nullified certain clauses of Agreements established by the company in 1996 within the framework of the Statutes governing Executives (Estatuto del Directivo). The reasons for this decision were the following. The Agreements were deemed by the Council of State to be similar to a non-union collective accord, which benefited those who signed the Statutes governing Executives. According to the Statutes’ own provisions, signing the Statutes ruled out enjoyment of the benefits established in the collective labour agreement; according to the Council of State, this situation led workers to leave the trade union because there was no point in belonging to it if the benefits of the collective labour agreement had been relinquished. Furthermore, according to the Council of State, the non-union collective accord violated section 70 of Act No. 50 of 1990 which prohibits the conclusion of non-union collective accords when the trade union of a company comprises over a third of the company’s workforce. Such was the situation at La Previsora SA with SINTRAPREVI, whose collective labour agreement, according to this act, consequently covered the whole workforce. Lastly, the Council of State stipulated that these Agreements, which resembled a non-union collective accord, provided benefits that were superior to those agreed in the collective labour agreement that was in force at the time, thereby violating the principle of equality. As regards the signing of collective accords, the Committee recalls that, in examining similar allegations presented in other complaints against the Government of Colombia, it underlined “that the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98 and that collective accords should not be used to undermine the position of the trade unions” and requested the Government to take the necessary measures to ensure that workers were not pressured into accepting against their will a collective accord which implied resignation from a trade union [see 336th Report, Case No. 2239 (Colombia), para. 356, and 337th Report, Case No. 2362 (Colombia), para. 761, among others]. In the present case, the Committee welcomes the fact that the grounds on which the Council of State nullified the abovementioned Agreements – which established certain benefits in favour of some workers – were aimed at defending freedom of association, in particular the right of SINTRAPREVI to free and voluntary collective bargaining, without undermining the position of the union, in full compliance with the principles established by this Committee.
4. 701. As regards recommendation (a), the Committee recalls that it had requested 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. The Committee regrets that SINTRAPREVI has sent no communications in this respect. In these circumstances, and taking into account the information provided by the Government according to which on 15 November a new collective labour agreement was signed with SINTRAPREVI for
5. 2007–10, to which reference has been made above, the Committee finds that the parties have succeeded in resolving their dispute and will not, therefore, consider these allegations further.

The Committee's recommendations

1. 702. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.