Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 367, Mars 2013

Cas no 2877 (Colombie) - Date de la plainte: 14-JUIN -11 - Clos

Allegations: The complainants allege that, as part of a campaign of anti-union persecution, the enterprise Brinks of Colombia dismissed unionized workers, caused workers to resign from unions and drew up a collective accord with the aim of making workers resign from unions and restricting their rights

1. 484. The complaint is contained in a communication from the Confederation of Colombian Workers (CTC) and the National Union of Workers of Brinks of Colombia (SINTRABRINKS) dated 14 June 2011. The CTC sent new allegations in a communication dated 17 May 2012.
2. 485. The Government sent its observations in communications dated 22 November 2011 and 20 September 2012.
3. 486. 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. The complainants’ allegations

1. 487. In their communication of 14 June 2011, the complainants allege that the enterprise Brinks of Colombia has been conducting a campaign of anti-union persecution. According to the complainants, in 1999 SINTRABRINKS had 473 members nationally, in the cities of Bogota, Montería, Ibagué, Bucaramanga, Cartagena, Cali and Medellín. By February 2007, it had 156 members, and by 2010 it had only 97. In 18 cities where the enterprise operates, out of a total of more than 1,700 workers, the union only has worker members in Bogotá (84), Montería (7), Ibagué (1), Cartagena (1), Riohacha (1) and Cali (3). The complainants consider that anti-union persecution is prompting members to resign, resulting in the loss of regional sub-units and union committees.
2. 488. Specifically, the complainants allege that: (1) on 8 May 2010, the enterprise dismissed union member Mr Aroldo Miranda in the city of Riohacha; (2) on 17 November 2010, after 24 workers had joined SINTRABRINKS, the enterprise immediately held meetings with the new union members to persuade them to resign from the union; and (3) on 19 November 2010, the enterprise dismissed another three unionized workers: Mr Robert Santiago Cuevas Avellaneda, Mr Alfonso Avella Sáenz and Mr Gilberto Mojica Mahecha, and a few days later dismissed two more unionized workers.
3. 489. The complainants further allege that, in order to induce unionized workers to resign from their union and to eliminate the collective agreement, the enterprise drew up a collective accord for 2009–11. According to the complainants, the accord grants certain minimum rights, such as a bonus for prompt signing and marriage benefit, to non-unionized workers only. In particular, article 3 of the collective accord establishes resignation from the union as a condition for enjoying the benefits of the accord, stipulating that, if a worker is a union member when he or she signs the collective accord, then signing shall be understood to constitute resignation from the union for the purposes of the accord. This collective accord is still being applied in parallel with the collective agreement signed with the union, ignoring the fact that the union represents workers. The complainants state that, in 2010, 33 workers resigned from the union, either by signing the accord, through dismissal, or voluntarily. According to the complainants, these dismissals constitute serious intimidation of their members, restrict the organization’s development, and hinder new workers from joining the union.
4. 490. In a communication dated 17 May 2012, the CTC alleges that, in May 2012, the enterprise dismissed another two workers who had recently joined the union. The CTC states that, at the time of their dismissal, the workers in question were benefiting from special temporary protection.

B. The Government’s reply

1. 491. In its communication of 22 November 2011, the Government states that, bearing in mind that the allegations refer to events that occurred in Bogotá and Cali, it is providing information on the action taken by the regional authorities for Cundinamarca and Valle. The Government has also forwarded the enterprise’s response to the allegations made by the complainants.
2. 492. The regional authority for Cundinamarca reports that the CTC lodged complaint No. 352815 on 29 November 2010, requesting intervention by the Ministry of Social Protection in the face of alleged violations of the Constitution, Colombian legislation and ILO Convention No. 87, stating that 24 workers had joined SINTRABRINKS. In support of its complaint, the CTC sent a communication to the enterprise requesting respect for freedom of association.
3. 493. The administrative authority reports that an administrative labour investigation was opened into the events of which the CTC had complained and that the parties were called to appear on 15 March 2011. The trade union organization said that it had not submitted any complaint and that the matter had been brought to the attention of the Vice-Minister for Labour Relations, to whom it requested that the case should be referred. This resulted in the authorized representative of the enterprise requesting that the case should be archived, given that no complaint existed against the enterprise. Accordingly, the case was closed, the parties were notified and the file was archived. With respect to the allegations that the number of members has fallen because workers’ rights are being threatened by the use of collective accords, it reports that an investigation into the matter is under way.
4. 494. For its part, the regional authority for Valle reports that an administrative labour investigation has been opened to clarify and shed light on the events that gave rise to the present allegations. Both the legal representative of the enterprise and the legal representative of the trade union were summoned to appear on 6 October 2011. On that day, the general authorized representative of the enterprise attended, but the President of SINTRABRINKS neither attended nor sent any excuse. Subsequently, the post office returned the letter sent to the trade union, pointing out that the address was incomplete. On 13 October 2011, in official letter 020110, the trade union and the enterprise were summoned to appear again on 20 October 2011. The authorized representative of the enterprise sent apologies for not being able to attend on that date because he was out of town, attaching the relevant air ticket, and requested in writing that a new date be set. For his part, the legal representative of SINTRABRINKS attended and the administrative process of investigating the allegations was pursued with him. On 4 November 2011, the authorized representative of the enterprise submitted a written statement countering the allegations made against it, attaching 100 documents relating to the arguments outlined in writing. At present, the case is being studied with a view to drafting a decision.
5. 495. The Government has forwarded a communication from the enterprise, which states that the termination of Mr Aroldo Miranda’s contract was due solely and exclusively to offences committed in discharging his duties, that due process and the worker’s right to a defence were respected, and that the situation was in no way connected with his trade union membership. With regard to the alleged meetings between the enterprise and new members to persuade them to resign from the union, the enterprise states that these claims are false and that they lack any substance in fact, as the meetings in question never took place.
6. 496. The enterprise found it necessary to terminate the contracts of Mr. Robert Santiago Cuevas Avellaneda, Mr Alfonso Avella Sáenz and Mr Gilberto Mojica Mahecha, along with other unionized and non-unionized workers, as a result of offences committed in discharging their duties. The dismissals were based on the provisions of Decree No. 2351 of 1965, without there being any link or causal relationship whatsoever between the termination of their contracts and their membership of SINTRABRINKS. The enterprise underlines the fact that, before the decision to terminate these workers’ contracts with just cause was taken, due process had been properly exhausted, ensuring respect for the workers’ right to a defence, and they were able to submit any evidence they considered relevant, accompanied by two representatives of the union, at an appointed time, as has always been the practice, thereby guaranteeing respect for the fundamental labour rights of all the enterprise’s workers, whether unionized or not. The enterprise adds that, in a ruling of 11 February 2011, judge No. 50 for criminal affairs, on the Bogota circuit, upheld the initial ruling absolving the enterprise in the case brought by the above workers, who had claimed that their rights to freedom of association, work, equality and due process had been violated.
7. 497. With regard to the fall in the number of SINTRABRINKS members in recent years, the enterprise states that this has not resulted from any of the actions of which it stands accused. The enterprise has neither threatened nor violated the right to freedom of association of any of its workers, nor has it engaged in any persecution. According to the enterprise, the union’s low popularity among workers is down to two things: (1) the negotiating committee for the list of demands submitted when the events occurred handled the negotiations very badly by taking a belligerent stance and making disproportionate demands, which led to an arbitration tribunal being set up (as the law provides for in such cases), despite the enterprise’s efforts to reach a solution that benefited the unionized workers, which gave rise to an obvious lack of trust and undermined the union’s image because, for more than a year, it had encouraged a situation in which workers’ rights were not defined; and (2) SINTRABRINKS protected and assisted former worker Mr Carlos Alberto Pardo, who, while on the enterprise’s premises outside working hours, murdered his superior, Mr José Roberto Villalobos, on 20 September 2007. Nevertheless, the trade union did not revoke his trade union immunity, to the general disgust of all workers, which prompted a large number of voluntary resignations.
8. 498. With regard to the allegation that the enterprise has signed collective accords that are intended to make unionized workers resign from their unions and to restrict their rights, the enterprise states that, on the contrary, the only aim of such accords, which, furthermore, have always been concluded by mutual agreement with those who have freely expressed their will to be covered by them, is to improve the quality of life, well-being and rights of employees, and that the enterprise cannot be held responsible for the situation, which has resulted from decisions taken independently by workers.
9. 499. Regarding the 33 workers dismissed in 2010, the enterprise states that it is true that, in 2010 as in any other year, the contracts of some unionized and non-unionized workers were terminated, which is in line with the normal and routine management of any enterprise. These terminations occurred through mutual agreement between the parties on the basis of just and legal causes, and the relevant indemnities were paid.
10. 500. In its communication of 20 September 2012, the Government states that, thanks to the will to engage in dialogue and seek consensus between the enterprise and the union within the framework of the Special Committee for the Handling of Cases referred to the ILO (CETCOIT), agreement was reached on 5 September 2012. The agreement (which the Government has sent with its reply) provides, among other things, for: the absolute proscription of any act of anti-union persecution; continuing monthly direct dialogue, in the first week of every month, with the aim of discussing situations and specific topics of concern to the union and the enterprise so as to reach agreement; reporting on monthly meetings to CETCOIT after six months; and CETCOIT remaining available to the parties in order to seek ways of understanding and overcoming difficulties that may arise.

C. The Committee’s conclusions

1. 501. The Committee observes that, in the present case, the complainants allege that: (1) as part of a campaign of anti-union persecution, the enterprise Brinks of Colombia dismissed six unionized workers in 2010 (the complainants have provided the names of four people: Mr Aroldo Miranda, Mr Robert Santiago Cuevas Avellaneda, Mr Alfonso Avella Sáenz and Mr Gilberto Mojica Mahecha) and two workers who had recently become members in 2012; (2) the campaign of persecution has led to resignations from SINTRABRINKS (according to the complainants, the union had 473 members nationally in 1999 but by 2010 it had only 97); (3) in 2010, 33 workers resigned from the union, either by signing the accord, through dismissal, or voluntarily; and (4) the enterprise drew up a collective accord for the period 2009–11, with the aim of making workers resign from the union (according to the complainants, article 3 of the accord imposes resignation from the union as a condition of benefiting from the provisions of the accord) and restricting their rights.
2. 502. With regard to the allegation that, in 2010, as part of a campaign of anti-union persecution, the enterprise dismissed six unionized workers (the complainants have provided the names of four people: Mr Aroldo Miranda, Mr Robert Santiago Cuevas Avellaneda, Mr Alfonso Avella Sáenz and Mr Gilberto Mojica Mahecha), the Committee notes that: (1) the Government reports that the regional authority for Cundinamarca began an investigation based on the events of which the CTC had complained, but that, because the union stated that it had not submitted a complaint and because the matter had been brought to the attention of the Vice-Minister for Labour Relations and the enterprise had requested that the case should be archived, the investigation was closed; and (2) the regional authority for Valle opened an investigation, which is being pursued with a view to drafting a decision. Furthermore, the Committee takes note of the enterprise’s statements that: (1) it found it necessary to terminate the contracts of Mr Aroldo Miranda, Mr Robert Santiago Cuevas Avellaneda, Mr Alfonso Avella Sáenz and Mr Gilberto Mojica Mahecha, along with other unionized and non-unionized workers, as a result of offences committed in discharging their duties. The dismissals were based on the provisions of Decree No. 2351 of 1965; (2) there was no link or causal relationship between the termination of their contracts and their membership of SINTRABRINKS; (3) before terminating the contracts of the above workers with just cause, the enterprise had properly exhausted due process and guaranteed respect for the fundamental rights of all its workers, whether unionized or not; and (4) in a ruling of 11 February 2011, the criminal judicial authorities upheld the initial ruling absolving the enterprise in the case brought by the dismissed workers, who had claimed that their rights to freedom of association, work, equality and due process had been violated. The Committee takes note of all this information and requests the Government to keep it informed of the result of the administrative investigation being carried out by the regional authority for Valle. Furthermore, the Committee expects that the investigation in question will deal with the alleged dismissal of two workers belonging to SINTRABRINKS in 2012 and to ensure that there has not been any anti-union discrimination.
3. 503. With regard to the allegation that the campaign of persecution at the enterprise has led to resignations from SINTRABRINKS (according to the complainants, the union had 473 members nationally in 1999 but by 2010 it had only 97), the Committee notes that the enterprise has stated the following: (1) the situation has not arisen from any of the actions of which it stands accused; (2) it has neither threatened nor violated the right to freedom of association of any of its workers, nor has it engaged in any persecution; and (3) the union’s low popularity among workers is down to two things: (i) the negotiating committee for the list of demands submitted when the events occurred handled the negotiations very badly, which led to an arbitration tribunal being set up; this resulted in members not having defined benefits for more than a year; and (ii) the union protected, assisted and failed to revoke the immunity of a former worker who murdered his superior on the enterprise’s premises in 2007. The Committee, taking note of the Government’s statement that the administrative investigation being conducted by the regional authority for Valle is looking into these allegations, requests it to keep it informed of the results thereof.
4. 504. With regard to the allegation that, in 2010, 33 workers resigned from SINTRABRINKS because they had signed the collective accord, through dismissal or by voluntary agreement, the Committee takes note of the enterprise’s statement that: (1) it is true that in that year, as in other years, the contracts of some unionized and non-unionized workers were terminated, which is in line with the normal and routine management of any enterprise; and (2) the terminations occurred through mutual agreement between the parties, on the basis of just and legal causes, with payment of the relevant indemnities. Bearing this information in mind, the Committee will not pursue the examination of these allegations.
5. 505. With regard to the allegation that the enterprise drew up a collective accord for the period 2009–11 with the aim of making workers resign from the union (according to the complainants, article 3 of the accord imposes resignation from the union as a condition of benefiting from the provisions of the accord) and restricting their rights, the Committee takes note of the enterprise’s statements that the only aim of such accords, which, furthermore, have always been concluded by mutual agreement with those who have freely expressed their will to be covered by them, is to improve the quality of life, well-being and rights of employees, and the enterprise cannot be held responsible for workers resigning from the union. In this respect, while recalling that “direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 945] and that, in various cases concerning Colombia, the Committee has 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” (see Colombia, 336th Report, Case No. 2239, para. 356; 337th Report, Case No. 2362, para. 761; and 354th Report, among others), the Committee requests the Government to keep it informed of the result of the investigation into these allegations being carried out by the regional authority for Valle.
6. 506. Lastly, the Committee welcomes the fact that, within the framework of CETCOIT, agreement was reached between the parties to the dispute in this case on 5 September 2012, and that the agreement (which the Government has sent with its reply) provides, among other things, for: the absolute proscription of any act of anti-union persecution; continuing monthly direct dialogue, in the first week of every month, with the aim of discussing situations and specific topics of concern to the union and the enterprise so as to reach agreement; reporting on monthly meetings to CETCOIT after six months; and CETCOIT remaining available to the parties in order to seek ways of understanding and overcoming difficulties that may arise. The Committee requests the Government to keep it informed of any developments in the application of this agreement.

The Committee’s recommendations

1. 507. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the allegation that, in 2010, as part of a campaign of anti-union persecution, the enterprise Brinks of Colombia dismissed six unionized workers (the complainants have provided the names of four people: Mr Aroldo Miranda, Mr Robert Santiago Cuevas Avellaneda, Mr Alfonso Avella Sáenz and Mr Gilberto Mojica Mahecha), the Committee requests the Government to keep it informed of the result of the administrative investigation being carried out by the regional authority for Valle. Furthermore, the Committee expects that the investigation in question will deal with the alleged dismissal of two workers belonging to SINTRABRINKS in 2012 and to ensure that there has not been any anti union discrimination.
   • (b) With regard to the allegation that the campaign of persecution at the enterprise has led to resignations from SINTRABRINKS (according to the complainants, the union had 473 members nationally in 1999 but by 2010 it had only 97), the Committee, taking note of the Government’s statement that the administrative investigation being conducted by the regional authority for Valle is looking into these allegations, requests it to keep it informed of the results thereof.
   • (c) With regard to the allegation that the enterprise drew up a collective accord for the period 2009–11 with the aim of making workers resign from the union (according to the complainants, article 3 of the accord imposes resignation from the union as a condition of benefiting from the provisions of the accord) and restricting their rights, the Committee requests the Government to keep it informed of the result of the investigation into these allegations being carried out by the regional authority for Valle.
   • (d) The Committee welcomes the fact that, within the framework of CETCOIT, agreement was reached between the parties to the dispute in this case on 5 September 2012 and requests the Government to keep it informed of any developments in the application of this agreement.