Effect given to the recommendations of the committee and the Governing Body - Report No 370, October 2013

Case No 2595 (Colombia) - Complaint date: 18-SEP-07 - Follow-up

Effect given to the recommendations of the Committee and the Governing Body

1. 35. The Committee last examined this case at its meeting in March 2010 [see 356th Report, paras 53–57], when it requested the Government: (1) to keep it informed of the registration of Mr Ernesto Estrada Prada as a member of the executive board of the National Union of Food Workers (SINALTRAINAL); (2) to send its observations concerning the right of the workers of Acueducto Metropolitano de Bucaramanga to join SINALTRAINAL; and (3) to keep it informed of the existence of an industrial inquiry into the Ayuda Integral Company for anti-union harassment in connection with the dismissal of Mr Martínez Moyano.
2. 36. In communications dated 29 April and 10 June 2010, SINALTRAINAL presented new allegations. The Government sent its observations in communications dated 15 February and March 2011.
3. 37. Specifically, the complainant alleges that:
   • – Industria Nacional de Gaseosas SA (henceforward “the company”) has refused to recognize the appointment of a number of workers as members of the SINALTRAINAL Complaints Committee on the grounds that they are “workers of confidence” and has therefore refused to recognize their trade union immunity, in violation of articles 3 and 4 of the collective agreement. In this connection, the Government sent the Committee a communication from the company stating that, while it recognizes its workers’ right to freedom of association, it considers null and void, pursuant to article 389, as amended, of the Labour Code, the appointment to union posts of workers whose functions require them to represent the company, as is the case of senior sales personnel and operational coordinators. The Committee takes note of this information and recalls that workers and their organizations should have the right to elect their representatives in full freedom and that the latter should have the right to put forward claims on their behalf [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 389]. The Committee observes further that it is not for the employer to determine whether or not the appointment of a union official complies with legal requirements. The Committee trusts that its observations will be taken fully into consideration by the company and, if relevant, by the competent institutions.
   • – The company refuses to grant trade union immunity to SINTRAINAL’s Complaints Committee, contrary to the understanding in the 2008–10 collective agreement. In this connection, the Government forwards the company’s statement that, pursuant to article 406 of the Labour Code, a company cannot have more than one statutory Complaints Committee. The company adds that the 2008–10 collective agreement does not provide for the creation of complaints committees within each trade union. The Committee takes note of this information and of the different interpretations of the 2008–10 collective agreement. The Committee trusts that this point of contention will have been resolved with the signing of a new collective agreement in 2011.
   • – Mr José Hernando Uribe Zambrano, a member of the Complaints Committee of the Coca Cola bottling plant in Bucaramanga, has been illegally dismissed in violation of his trade union immunity. In this connection, the Government informs the Committee of the company’s position that, when his contract was terminated, Mr Uribe Zambrano was neither affiliated to the union nor a member of the Complaints Committee and that he therefore did not have trade union immunity. The company adds that the case is currently before the Fourth Bogota Circuit Labour Court. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the judicial proceedings under way.
   • – In violation of their trade union immunity, Mr Juan Manuel Concha, member of the Complaints Committee of the Coca Cola bottling plant in Bucaramanga, and Mr Gerson Fabian Mantilla Torres, member of SINALTRAINAL’s executive board in Bucaramanga, have been transferred to new posts. In this regard, the Government forwards the company’s statement that the new post assigned to Mr Concha is a career development move and that Mr Mantilla Torres was promoted to a new post at a higher salary. While taking note of this information, the Committee recalls the principle that a deliberate policy of frequent transfers of persons holding trade union office may seriously harm the efficiency of trade union activities [see Digest, op. cit., para. 802].
   • – On 18 September 2009, Mr Álvaro Enrique Benítez, a member and former official of SINALTRAINAL, was dismissed without just cause. In this connection, the Government informs the Committee of the company’s position that Mr Benítez was dismissed for a serious failure to fulfil his duties and that his appeal was rejected by the courts at every level. The Committee takes note of this information.
   • – Mr Andrés Olivar, a member of the executive board of SINALTRAINAL–Bogota is not paid the same salary as other workers in the same post. In this regard, the Government forwards the company’s statement that the company has reviewed the matter and adjusted Mr Olivar’s salary retroactively. The Committee takes note with interest of this information.
   • – On 10 January 2010, SINALTRAINAL’s notice board at the Medellín plant was removed and three union officials were suspended for five days, in violation of the collective agreement and due process. In this connection, the Government informs the Committee of the company’s position that SINALTRAINAL had damaged company installations by writing insulting graffiti directed against its management. The company denies that it removed the notice board but states that it convened the workers involved and, as they were unable to justify their actions, it proceeded to suspend them. The three workers lodged complaints with the labour courts. While the courts were examining the complaints lodged by Mr Jimmy Fontecha and Mr Alexander Rincón, a ruling was handed down by the Sixth Industrial Court of Bucaramanga on 14 October 2010 on the complaint lodged by Mr Nelson Pérez stating that his suspension was legal. In a decision of 31 January 2011, the Ministry of Social Welfare’s Territorial Directorate of Santander declared that the right of trade unions to notice boards presupposed that they would be properly and respectfully used. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the court proceedings under way. The Committee wishes to recall that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end, workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, trade union organizations should respect the limits of propriety and refrain from the use of insulting language [see Digest, op. cit., para. 154]. The Committee trusts that these principles will be taken fully into consideration by the enterprise, the complainant organization and the competent tribunals.
   • – Trade union leave in Medellín has been denied in violation of the collective agreement, and a series of disciplinary sanctions have been handed down, especially on union leader Andrés Olivar. In this regard, the Government forwards the company’s statement that union leave to attend two trade union meetings was refused because the amount of leave provided for in the collective agreement had already been used up and that the sanctions imposed on Mr Olivar were for absences that had not been the subject of any request for union leave. The Committee takes note of this information.
   • – The procedure for requesting trade union leave was made the subject of regulations laid down by the company unilaterally on 12 March 2010, in violation of the collective agreement. In this connection, the Government informs the Committee of the company’s position that, given the union’s failure to request union leave in compliance with the provisions of the collective agreement, the human resources department wrote to SINALTRAINAL to remind it of the procedure stipulated in the agreement. The Committee takes note of this information.
   • – Non-unionized workers were subjected to pressure on a number of occasions in 2009 to sign up to the collective accord. In this regard, the Government forwards the company’s statement that it made all the necessary means available and gave every guarantee for the collective agreement that came to an end on 28 February 2010 to be renegotiated. It had written to the trade unions proposing that negotiations on the new agreement take place before the negotiation of the collective accord, whose clauses are no more favourable than those stipulated in the agreement. Before the negotiation of the collective accord, 627 company workers were union members, and afterwards the number rose to 642. The Committee takes note of this information and recalls that the Collective Agreements Recommendation, 1951 (No. 91), emphasizes the role of workers’ organizations as one of the parties in collective bargaining and refers to representatives of unorganized workers only when no organization exists. In such cases, direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might in certain cases be detrimental to the principal that negotiation between employers and organizations of workers should be encouraged and promoted [see Digest, op. cit, paras 944 and 945]. The Committee observes, moreover, that the Committee of Experts on the Application of Conventions and Recommendations, in its 2011 observation on the application of Convention No. 98, recalled that when there is a trade union at the enterprise, collective agreements should not be concluded with non-unionized workers. The Committee therefore requests the Government to take the necessary measures to ensure that this principle is respected by the company and to keep it informed of any developments in this regard.
   • – The company attempted to modify the agreement with SINALTRAINAL unilaterally on 17 July 2009. In this respect, the Government informs the Committee of the company’s position that the list of demands presented by SINALTRAINAL and the Union of Beverage Industry Workers of Colombia (SINALTRAINBEC) for the country’s northern region was adopted on that date and that the company’s only request was that the text of the agreement be incorporated into the collective agreement for all the companies in the group. The company states that, as no common ground could be found, the agreement was officially registered with the Ministry of Social Welfare and has since been fully complied with. The Committee takes note of this information.
   • – The company has denied SINALTRAINAL the right to negotiate its list of demands independently. In this connection, the Government forwards the company’s statement that it had endeavoured to obtain SINALTRAINAL’s consent to take part in a single series of negotiations with the other trade unions, as had been the established practice for over ten years. The company adds that an agreement was finally signed with SINALTRAINAL on 12 February 2011, with retroactive effect from 1 March 2010. The Government feels that the signing of a collective agreement between the company and the complainant organization on 12 February 2011 shows that, on that point, the complaint is no longer relevant. The Committee notes this information with interest.
4. 38. The Committee takes note of the Government’s final observations regarding the new allegations presented by the complainant organization. The Government states that it has been informed by the Ministry of Social Welfare’s Territorial Directorate for Antioquia that it has not received any complaint from SINALTRAINAL. The Government also recalls that there are a number of administrative and judicial institutions in Colombia to defend trade union rights and collective bargaining, and that the union could start by lodging appeals with them if it felt that its rights had been infringed. The Government further recalls the existence of the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT) and to the possibilities that it affords for improving relations between the company and the complainant organization. The Committee takes note of this information and, in turn, invites the company and the complainant organization to use the social dialogue machinery available to them to contribute to the resolution of any areas of conflict that may exist.
5. 39. Finally, the Committee again requests the Government to provide, without delay, the information it requested on the right of the workers of Acueducto Metropolitano de Bucaramanga to join SINALTRAINAL, on the registration of Mr Ernesto Estrada Prada as a member of SINALTRAINAL’s executive board and on the existence of an industrial inquiry into the Ayuda Integral company for anti-union harassment.