Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 357, Juin 2010

Cas no 2522 (Colombie) - Date de la plainte: 10-AOÛT -06 - Clos

Allegations: Non-compliance with a collective agreement, refusal to register a trade union organization, and refusal to engage in collective bargaining with public employees

1. 266. The Committee last examined this case at its meeting in November 2009 and on that occasion presented an interim report to the Governing Body [see 355th Report, paras 433–464, approved by the Governing Body at its 306th Session].
2. 267. The Government sent its observations in a communication dated 19 February 2010.
3. 268. 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), 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. 269. In its previous examination of the case in November 2009, the Committee made the following recommendation [see 355th Report, para. 464]:
   • (a) …;
   • (b) With regard to clause (b) of the recommendations regarding the allegations presented by the CGT and the SINFUMIPROS, the Committee requests the Government, taking into account the recent case law of the Constitutional Court (rulings Nos 465/08 and 695/08), to take the necessary measures to ensure the immediate registration of the SINFUMIPROS. The Committee requests the Government to keep it informed in this regard.
   • (c) As to clause (c) of the recommendations regarding the transfer of Mauricio Lobo Rodríguez and Gustavo Vargas Burbano, members of the Executive Board of SINTRAOFICAJANAL, the suspension of the check-off of union dues and the offering of benefits to workers to give up union membership, the Committee requests the Government to keep it informed as to whether administrative inquiries have been launched regarding the enterprise.
   • (d) With regard to the new allegations presented by UTRADEC (formerly UNETE) regarding non-compliance with the collective agreement and accords signed by CAJANAL EICE, including the failure to pay overtime and the refusal to grant other contractual benefits referred to in the collective agreement, the seizure and removal of the trade union archive and the computer of the president of the trade union organization, along with pressuring the president to take leave in order to separate her from her members, the Committee requests the Government to send its observations without delay.
   • (e) As to clause (d) of the recommendations regarding the allegations presented by ASEMIL on the refusal to bargain collectively with public employees, noting the recent adoption of Decree No. 535 of 24 February 2009 governing section 416 of the Substantive Labour Code (in light of Acts Nos 411 and 524 approving Conventions Nos 151 and 154 at national level) and establishment of the bodies within which negotiation between trade union organizations of public employees and public sector bodies will be advanced, the Committee requests the Government to keep it informed of developments and as to whether ASEMIL has been able to participate in the negotiation processes.

B. The Government’s reply

1. 270. In its communication of 19 February 2010, the Government sent the following observations.
2. 271. With regard to recommendation (c) concerning the alleged transfer of Mauricio Lobo Rodríguez and Gustavo Vargas Burbano, members of the Executive Board of SINTRAOFICAJANAL, the suspension of the check-off of trade union dues, the offer of benefits to workers to give up union membership, the Committee had requested the Government to keep it informed as to whether administrative inquiries had been launched regarding the enterprise. The Government reports in this regard that the Regional Director of Cundinamarca has confirmed that no such administrative investigations were under way.
3. 272. As regards recommendation (d) concerning allegations presented by UTRADEC regarding non-compliance with the collective agreement and accords signed by CAJANAL EICE, including the failure to pay overtime and the refusal to grant contractual benefits referred to in the collective agreement, the seizure and removal of the trade union archive and the computer of the president of the trade union organization SINTRAOFICANAL, along with attempts to put pressure on the president to take leave in order to separate her from her members, the Government states that, with the reform of social security under Act No. 100 of 1993, CAJANAL EICE was given responsibility for providing essential services in the area of health and pensions. In 2003, that body faced a serious economic crisis as a result of which it split up, CAJANAL retaining exclusive responsibility for negotiations on public service pensions. In 2008, the body announced that it was insolvent, and is currently being wound up.
4. 273. As regards the alleged refusal to pay overtime, in contravention of the collective agreement, the Government indicates (a fact corroborated by information from CAJANAL EICE) that in June 2009, an instruction was given to grant overtime payments to Mr Reyes Durán and Mr Ávila. As regards the alleged refusal to grant other contractual benefits, the Government states that a meeting between the institution and the trade union was held on 25 March 2009 under the auspices of the Welfare and Training Committee, but SINTRAOFICANAL refused to sign the agreement on the grounds that a request for sports uniform allowance had been refused because there was no provision for it in the budget, the collective agreement, or the Committee’s own statutes. On the other hand, according to the Government, some 158 requests for allowances and subsidies under the collective agreement have been accepted since January 2009.
5. 274. As regards the unwarranted seizure and removal of the trade union archive, the Government indicates that, according to the information provided by CAJANAL EICE, the trade union which had premises and furnishings made available to it by the institution, unilaterally and without any consultation appropriated additional furniture from the institution for the purpose of storing its union documents. The filing cabinets, desk and computer were among the items that belonged to CAJANAL EICE and were not assigned to the union president. Furthermore, the furniture in question contained documents of importance for CAJANAL EICE. The Government adds that, owing to the existing dispute and in order to safeguard the contents of the archives, which included information of importance for the union and for CAJANAL EICE, on 11 May 2009 an inspection was conducted inside the institution’s premises and seals were placed on the files by mutual agreement of the two parties. The Government indicates that there was no improper seizure of files because both parties decided to keep them in the CAJANAL EICE premises.
6. 275. As regards the allegations regarding pressure on the president of SINTRAOFICANAL to take leave in order to separate her from her union, the Government indicates that in accordance with article 187 of the Substantive Labour Code, holidays must be granted informally or at the worker’s request within the following year and it is not possible to accumulate more than three periods of leave. For this reason, the management of CAJANAL EICE stated publicly through circular No. 006 of 21 April 2009 that it would grant leave to employees who accumulated more than two periods of leave from the first working day in May 2009. As the President had not taken leave for more than two years, the measure was applied to her as well.
7. 276. Lastly, the Government adds that the body has made the agreed payments and union check-offs and will continue to ensure that the collective agreement is applied.

C. The Committee’s conclusions

1. 277. The Committee takes note of the Government’s observations.
2. 278. As regards recommendation (c) concerning the alleged transfer of Mauricio Lobo Rodríguez and Gustavo Vargas Burbano, members of the Executive Board of SINTRAOFICAJANAL, the suspension of the check-off of trade union dues, and the offer of benefits to workers to give up union membership, the Committee had requested the Government to keep it informed as to whether administrative action had been launched by the members concerned regarding the company. The Committee notes the Government’s information that the Regional Director of Cundinamarca confirmed that no such action was under way. Under these circumstances, the Committee will not pursue its examination of these allegations.
3. 279. As regards recommendation (d) concerning the allegations presented by UTRADEC regarding non-compliance with the existing collective agreement and accords signed by CAJANAL EICE, including failure to pay overtime and refusal to grant other contractual benefits, the seizure and removal of the union archive and of the computer of the president of the trade union organization SINTRAOFICANAL, and pressure on the president to take leave in order to separate her from the union, the Committee notes that: (1) the Government denies the failure to comply with the collective agreement, and indicates that overtime payments were made in June 2009 to Mr Reyes Durán and Mr Ávila; (2) as regards the refusal to grant other contractual benefits and allowances, the Government states that a meeting was held on 25 March 2009 between CAJANAL EICE and the trade union organization under the auspices of the Welfare and Training Committee but SINTRAOFICANAL refused to sign the agreement because its request for a sportswear allowance was not granted since there was no provision for it in the budget, the collective agreement or the Committee’s regulations, but that, on the other hand, the employer had granted 158 other applications for allowances and contractual benefits since January 2009; (3) as regards the unwarranted seizure of the union archive, the Committee notes the Government’s statement to the effect that in accordance with the information provided by CAJANAL EICE, the trade union organization to which it had granted union premises and provided furniture, appropriated other furniture unilaterally and without consultation for the purpose of storing its union papers. The Committee notes that, according to the information provided, the furniture in question contained papers of importance to CAJANAL EICE and for that reason, on 11 May 2009, the parties (the trade union organization and the public institution) decided by mutual agreement, in order to safeguard the content of the archives which included information of value to both the union and CAJANAL EICE, to place seals on the file cabinets in order to ensure their security, and there was no unwarranted seizure of the archives since both parties decided to keep the archives at CAJANAL EICE installations; and (4) as regards the allegations concerning pressure on the president of SINTRAOFICANAL to take leave in order to separate her from her union, the Committee notes that according to the Government, taking into account that under current legislation, leave must be taken informally or at the request of the worker within the following year, and that it is not possible to accumulate more than three periods of leave, the management of CAJANAL EICE announced publicly, through circular No. 006 of 21 April 2009, that it would grant leave for employees who had accumulated more than two periods of leave from the first working day of May 2009. The Committee notes that, as the president of SINTRAOFICAJANAL had not taken leave for more than two years, the measure was applicable to her as well. In this regard, noting that a number of the issues raised in these allegations are in the process of being resolved, and noting the Government’s statement to the effect that it will continue to guarantee compliance with the collective agreement by CAJANAL EICE, the Committee firmly expects that the parties will be able to settle their differences through the existing negotiating machinery in the course of relations between the public institution and the trade union organization. The Committee requests the Government to keep it informed in this respect.
4. 280. As regards recommendation (b), the Committee had requested the Government to take the necessary measures for the immediate registration of the Union of Labour Inspectors and Public Employees employed by the Ministry of Social Protection (SINFUMIPROS), in accordance with the recent jurisprudence of the Constitutional Court (rulings 465/08 and 695/08), and to keep it informed in that regard. Noting that the Government has sent no information on this matter, the Committee reiterates its request with urgency.
5. 281. As regards recommendation (e), regarding the allegations presented by ASEMIL on the refusal to bargain collectively with public employees, the Committee had noted the adoption of Decree No. 535 of 24 February 2009 governing section 416 of the Substantive Labour Code (in light of Acts Nos 411 and 524, approving Conventions Nos 151 and 154 at national level) and establishment of the bodies within which negotiation between trade union organizations of public employees and public sector bodies will be advanced, and requested the Government to keep it informed of developments and as to whether ASEMIL had been able to participate in the negotiation process. Noting that the Government has sent no information in this regard, the Committee reiterates its request with urgency.

The Committee's recommendations

1. 282. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegations presented by UTRADEC on the non-compliance with the collective agreement and the accords concluded by CAJANAL EICE, including failure to pay overtime and refusal to provide the contractual benefits provided therein, the seizure of the union archive and the computer of the president of SINTRAOFICANAL and pressure on the president to take leave in order to separate her from her union, noting that a number of the questions raised in these allegations are in the process of being resolved, and noting the Government’s statement to the effect that it will continue to ensure compliance with the collective agreement by CAJANAL EICE, the Committee firmly expects that the parties will be able to resolve their differences through the existing negotiating machinery as part of the normal relations between the institution and the trade union organization. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee once again urges the Government to keep it informed as to whether it has registered the SINFUMIPROS, in accordance with recent jurisprudence of the Constitutional Court (rulings 465/08 and 695/08).
   • (c) As regards the allegations presented by ASEMIL on the refusal to bargain collectively with public employees, taking into account the adoption of Decree No. 535 of 24 February 2009 governing section 416 of the Substantive Labour Code (in light of Acts Nos 411 and 524 approving Conventions Nos 151 and 154 at national level) and the establishment of the bodies within which negotiation between trade union organizations of public employees and public sector bodies will be advanced, the Committee urges the Government to keep it informed of developments and as to whether ASEMIL has been able to participate in the negotiation process.