Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 376, Octobre 2015

Cas no 3087 (Colombie) - Date de la plainte: 13-MAI -14 - Clos

Allegations: The complainants allege that the firm Bancolombia SA refuses to bargain collectively with the trade union organization SINTRAENFI and commits acts of anti-union persecution

1. 301. The complaint is contained in a communication of 13 May 2014 presented by the Confederation of Workers of Colombia (CTC) and the Union of Workers of Financial Entities (SINTRAENFI).
2. 302. The Government sent its observations in communications dated 13 March and 19 June 2015.
3. 303. 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 complainants’ allegations

1. 304. In a communication of 13 May 2014, the complainants denounce the fact that the firm Bancolombia SA refuses to bargain collectively with the SINTRAENFI. In this respect, the complainants indicate that: (i) after proposing unsuccessfully to the National Union of Bank Employees (UNEB) and the National Union of Workers of the Bancolombia Group (SINTRABANCOL) to move forward joint collective bargaining with the firm, SINTRAENFI was obliged to present its own list of dispute grievances on 21 September 2011, while UNEB and SINTRABANCOL submitted a different list; (ii) the negotiations (direct settlement phase) began on 26 September 2011 and some of the SINTRAENFI proposals were welcomed by the firm and communicated to the other firm negotiating team which was dealing with UNEB and SINTRABANCOL; (iii) on 13 October 2011, the firm requested SINTRAENFI to withdraw from the negotiations since an agreement had been reached on the previous day with SINTRABANCOL and UNEB; (iv) thus, on 15 October 2011, the direct settlement phase with SINTRAENFI was officially concluded without an agreement; (v) on 22 October 2011, in accordance with the legislation in force, SINTRAENFI chose to request the Ministry of Labour to set up an arbitration tribunal; (vi) finally established on 10 December 2013, the tribunal issued its ruling on 31 January 2014; and (vii) persisting with its discriminatory attitude against SINTRAENFI, the firm lodged an appeal for the ruling to be annulled. The complainants add that as a result of the discriminatory refusal of SINTRAENFI’s right to bargain collectively, trade union members had to wait 28 months before obtaining an arbitration ruling and that the annulment appeal will entail many more months’ wait before the Supreme Court of Justice takes a decision and a final solution is achieved to this labour dispute.
2. 305. The complainants also denounce the fact that SINTRAENFI is the victim of anti-union persecution on the part of the firm, which is manifested by the requests to annul the union registration of three subsections of the trade union in Itagüí, Chía and Soacha, in violation of trade union autonomy and the legally recognized rights of industry trade unions.
3. 306. The complainants also indicate that various SINTRAENFI leaders are the subject of acts of persecution. They state that Mr John Fredy Giraldo Álvarez was accused, with the aim of dismissing him, of creating an atmosphere of panic among the employees for having exercised his freedom of expression. Similarly, the members of the national board of directors, Mr Jorge Eliécer Ramírez and Mr Carlos Alonso Medina Ramírez, were sanctioned (suspended for two days from work) for having posted on the firm’s Intranet communications from SINTRAENFI on various labour-related problems affecting the firm’s employees.
4. 307. The complainants state that the above facts are evidence, on the part of the firm, of a violation of the written agreement signed on 2 March 2010 during the ILO preliminary contacts mission and in which the firm undertook to avoid any kind of discriminatory treatment against SINTRAENFI. They add that the Government is not acting independently in this case, owing to the firm’s role in financing the campaign of the current President of the Republic, and of particular note is the delay with which the arbitration tribunal was set up.

B. The Government’s reply

1. 308. In a communication dated 8 July 2014, the Government forwards the replies of the firm Bancolombia SA. The firm states that it participates actively in labour relations with the three trade unions present at the company: the firm trade union, SINTRABANCOL, which brings together 3,962 workers from the firm; the industry trade union, UNEB, which has 2,542 members in the firm, and the industry trade union, SINTRAENFI, with 222 members from the firm. The firm adds that currently, out of a total of 18,867 employees at the national level, 13,849 employees are beneficiaries of the three-year collective agreement signed with SINTRABANCOL and UNEB, which expires on 31 October 2017.
2. 309. As regards the collective bargaining process, the firm states that: (i) for the sole purpose of continuing to build union relations based on social dialogue and harmony, after the three trade unions were unable to agree to discuss the list of dispute grievances jointly, the firm initiated two simultaneous negotiating processes in September 2011, with SINTRAENFI on the one hand, and SINTRABANCOL and UNEB on the other; (ii) after signing the collective agreement with SINTRABANCOL and UNEB on 13 October 2011, the firm proposed that SINTRAENFI accede to the agreement; (iii) faced with SINTRAENFI’s refusal and the failure to reach a specific agreement, the direct settlement stage with SINTRAENFI was wrapped up on 15 October 2011; (iv) the firm appealed the Ministry of Labour decision to set up an arbitration tribunal to settle the collective dispute with SINTRAENFI, since it considered that a signed collective agreement already existed within the firm, the benefits of which also cover the employees who are members of SINTRAENFI by unilateral decision of the firm; (v) the firm lodged an appeal to annul the arbitration ruling, which is still pending a decision by the Supreme Court of Justice; and (vi) pending said decision, the firm recognizes that the collective dispute with SINTRAENFI is still pending a settlement, for which reason, since September 2011, it continues to apply to all the members of this trade union the special temporary protection against unfair dismissals provided for in legislation.
3. 310. In relation to the legal action against the creation of SINTRAENFI subsections, the firm states that it has recognized that the trade unions have such a right, provided that the subsections are created in line with legal requirements. The firm considers, however, that the creation of subsections made up of members who do not have their professional domicile in the municipality where the subsection is created is an abuse of rights and a violation of the legislation in force. According to the firm, these practices, which seek to satisfy interests that go beyond the aims of freedom of association, are the sole justification for the legal action taken by the firm.
4. 311. As regards the process of lifting the trade union’s immunity and other disciplinary proceedings launched against various directors of SINTRAENFI, the firm states that: (i) it considered the possibility of lifting the trade union immunity of one leader who had published completely false information relating to the dismissal of 3,000 of the firm’s employees, creating a bad labour climate and endangering the firm’s reputation; (ii) with a view to guaranteeing good relations with SINTRAENFI, the firm finally decided not to take legal action; and (iii) it sanctioned with two days’ suspension two trade union leaders who had used the firm’s email system to distribute messages relating to their union activity, which should have been sent using the institutional email address of the trade union organization.
5. 312. After forwarding the firm’s response, the Government communicates its own observations, in which it states that: (i) the collective bargaining process between the firm and SINTRAENFI respected the relevant legal provisions and is pending a ruling by the Supreme Court of Justice as regards the appeal for annulment lodged by the firm against the arbitration ruling; and (ii) under Decree No. 089 of 2014, collective bargaining is taking place from now on at a single negotiating table, leaving the different union organizations the possibility to appear jointly with a single list of dispute grievances or to set up a single negotiating commission, with representatives in proportion to the number of members.
6. 313. The Government adds that: (i) on 13 August 2014, a meeting was held of the “Special Committee for the Handling of Conflicts referred to the ILO” (CETCOIT), at which the parties expressed their points of view and it was agreed to hold a joint meeting to find a solution; and (ii) on 1 September 2014, SINTRAENFI presented a claim to the labour inspectorate for an alleged breach of the collective labour law rules, which is currently being investigated.

C. The Committee’s conclusions

1. 314. The Committee observes that this case refers firstly to the alleged denial of the right to collective bargaining of the trade union organization SINTRAENFI, by the firm Bancolombia SA, and, secondly, to alleged acts of anti-union persecution against the same organization, including legal cases brought by the firm in response to the creation of subsections of the organization, as well as disciplinary proceedings against its leaders.
2. 315. As regards the allegations relating to the refusal of the right to collective bargaining, the Committee notes that the complainant organizations allege that SINTRAENFI is the victim of discriminatory treatment with respect to the other two trade union organizations, SINTRABANCOL and UNEB, present in the firm, as appears to be demonstrated by the successive delays in the collective bargaining process, the attempt, once the collective agreement was signed with SINTRABANCOL and UNEB, to force SINTRAENFI to withdraw its own list of dispute grievances, and also the judicial challenge by the firm against the arbitration ruling intended to bring an end to the collective dispute with said union.
3. 316. In this respect, the Committee notes that, according to the firm, owing to the lack of an agreement between SINTRAENFI, the minority trade union, and the two main trade unions present in the bank (SINTRABANCOL and UNEB), the firm was obliged to conduct two parallel negotiations. From the firm’s reply, the Committee gathers that the initiatives taken by the firm at the different stages of the two collective bargaining processes had the aim of establishing a single collective agreement applicable to all its staff and, in this regard, the firm proposed to SINTRAENFI (222 members) to accede to the collective agreement signed with SINTRABANCOL (3,962 members) and UNEB (2,542 members) and, in addition, according to the firm, the benefits of this collective agreement apply also to the members of SINTRAENFI. Observing that, according to the Government, collective bargaining will take place from now on at a single negotiating table, owing to the entry into force of Decree No. 089 of 2014, the Committee trusts that the application of the new rules will, in the future, allow negotiations to be conducted with all the trade union organizations present in the firm and will help to overcome the delays that characterized the negotiation and subsequent arbitration proceedings between the firm and SINTRAENFI. The Committee requests the Government to keep it informed of the decision taken on the appeal for annulment lodged by the firm against the arbitration ruling, as well as of the results of the complaint presented by SINTRAENFI to the labour inspectorate for alleged breach of the rules of collective labour law (the complaint was brought after the parties agreed to convene a meeting on the issues pending before CETCOIT).
4. 317. In relation to the legal cases brought against the creation of three SINTRAENFI subsections, considered by the complainant organizations to be the expression of anti-union persecution, the Committee notes that the firm states that the subsections must be created in line with legal requirements, which is not the case since the subsections are made up of members who do not have their professional domicile in the municipality where the subsection is set up. With respect to this allegation, the Committee observes that: (i) the Government has not sent specific observations in this regard; and (ii) it does not have concrete information relating to the formation of the three subsections that were subject to legal actions, or information on the content of the legal cases brought in this respect. In these circumstances, the Committee requests the Government to send its full observations regarding this allegation, and the complainant organization and the firm to provide more details on the legal cases brought in response to the creation of the three SINTRAENFI subsections, and, where appropriate, information on the outcome of such cases.
5. 318. In relation to the process of lifting the trade union immunity of Mr John Fredy Giraldo Álvarez, allegedly for having exercised the freedom of expression required for the exercise of freedom of association, the Committee duly notes that the firm states that: (i) the process of lifting the immunity was due to the fact that the employee had disseminated completely false information, relating to the dismissal of 3,000 workers, which created great unease among the staff; and (ii) with a view to guaranteeing good relations with SINTRAENFI, the firm finally decided not to follow through. The Committee duly notes this information.
6. 319. With respect to the two-day suspension of the employment contracts of the union leaders, Mr Jorge Eliécer Ramírez and Mr Carlos Alonso Medina Ramírez, for sending email messages with trade union content from their work accounts, the Committee notes that the firm states that trade union communications must be sent using the institutional email address of the trade union organization. Although the Committee has considered in previous cases that the modalities for the use of email in the workplace by trade unions should be a matter for negotiation between the parties, in the circumstances of this case, since the union organization was able to use its own email account from the workplace to contact its members, the Committee considers that the fact that trade union communications must be sent using the institutional email address of the organization, and not the firm’s email address, does not appear to limit the principles of freedom of association.

The Committee’s recommendations

1. 320. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of the decision taken on the appeal for annulment lodged by the firm against the arbitration ruling issued at the initiative of SINTRAENFI, as well as of the outcome of the complaint brought by SINTRAENFI before the labour inspectorate for alleged breach of the rules of collective labour law.
   • (b) The Committee requests the Government to send full observations concerning the legal cases brought in response to the creation of three subsections of SINTRAENFI. The Committee also requests the complainant organizations and the firm to provide more details in this regard and, where appropriate, information on the outcome of such cases.