Report in which the committee requests to be kept informed of development - Report No 374, March 2015

Case No 2946 (Colombia) - Complaint date: 10-FEB-12 - Follow-up

Allegations: The complainant organizations denounce acts of anti-union discrimination, mass dismissals, pressure and persecution to give up trade union membership in Ecopetrol SA and various subsidiary companies (Pacific Rubiales Energy-Meta Petroleum Corp, Cepcolsa, Montajes JM SA, Petrominerales, Reficar SA, CBI, Consorcio Lithos, Tiger-Sepam, Propilco SA), the lack of effective protection by the public authorities against these acts and the violation of the right to strike in the oil sector

1. 220. The complaint is contained in communications of 10 February and 8 June 2012, and 1 October 2013, submitted by the Single Confederation of Workers (CUT) and by the Workers’ Trade Union Confederation of the Oil Industry (USO).
2. 221. The Government sent its observations in communications of February 2013, 2 and 29 July 2013, 3 March 2014 and 27 October 2014.
3. 222. 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. 223. The complainants allege a series of violations against the exercise of freedom of association in the oil sector, in particular in the enterprise Ecopetrol and in several of its associated and contractor enterprises. Regarding the workers of the enterprise Pacific Rubiales Energy-Meta Petroleum Corp., the complainants allege that: (i) as a result of a labour dispute, in July 2011, approximately 4,000 workers of contractor and subcontractor enterprises providing services for Pacific Rubiales became members of the USO, which presented the enterprise with a list of demands; (ii) on 19 September, in view of the enterprise’s delay in entering into negotiations, the workers held a permanent assembly (work stoppage); (iii) on 20 September, the work stoppage was lifted following an agreement between the Government, the USO and the enterprise, establishing a month of negotiations between the USO and the enterprise, as well as permission for the USO to enter the Campo Rubiales oilfield; (iv) no agreement had been reached by the end of the month of negotiations, while, in parallel, the enterprise announced that it had signed an agreement with another trade union; (v) in protest against this situation, the workers of the contractor and subcontractor enterprises staged a work stoppage on 25 October 2011, which was violently repressed and 13 workers were detained by the national army; (vi) in November 2011, the enterprise terminated its contract with Montajes JM, the contractor enterprise with the highest number of USO members, with a view to working with non unionized staff; (vii) on 1 December 2011, Pacific Rubiales signed an agreement on wages with the presidents of Asojuntas and Asotransfuturo, while no agreement was reached in the negotiations with the USO; (viii) since large numbers of workers started joining the USO, forms of anti-union discrimination have been used by contractor enterprises working for Pacific Rubiales, such as pressuring union members to give up their work contract; (ix) on many occasions, the enterprise has restricted the access of USO members to the oilfield, resulting in workers leaving the trade union in large numbers; and (x) the aforementioned violations have been the subject of labour administration complaints brought by the USO before the Ministry of Labour.
2. 224. In a communication of 8 June 2012, the complainants mention specific cases of restrictions on the access of unionized workers (Norlay Acevedo Gaviria and Diego Iván Ríos Rivera) to the Campo Rubiales oil field, and the non-renewal of work contracts in retaliation for the trade union activities of certain workers (José Dionel Higuera Gualdrón, who has purportedly been blacklisted, and Alexander Barreto Ballesteros).
3. 225. Regarding the workers in the Cepcolsa enterprise, which operates in Puerto Gaitán through a series of contractor enterprises, including Montajes JM, the complainants allege that: (i) on 19 June 2011, the 481 workers of the aforementioned contractor enterprise for Cepcolsa who were members of the USO (out of a total of 817 workers) declared a work stoppage due to lack of progress in the negotiations on the improvement of their working conditions; (ii) on 23 June 2011, as a result of that protest, the main enterprise decided to suspend its contract with the contractor enterprise, resulting in the dismissal of the 817 workers (a recurrent practice in the oil industry to get rid of unionized staff); (iii) on 12 June 2011, in reaction to demonstrations, and following a meeting with the USO and the Regional Director of the Ministry of Social Protection (now the Ministry of Labour), the contractor agreed to reinstate the workers, which it then failed to do, and (iv) the enterprise has refused to negotiate with the USO regarding the working conditions of subcontracted workers.
4. 226. Regarding the workers of Petrominerales, which operates through 35 contractor enterprises, the complainants allege that: (i) since the creation of the USO’s Barranca de Upía USO subcommittee in September 2010, various anti-union acts have been carried out, comprising pressure and threats to make workers give up their union membership and the dismissal by the enterprise and its contractors of some 40 unionized workers in December 2010; (ii) in the negotiations between the main enterprise, the USO and the local communities, the enterprise refused to discuss the wages of the contractors’ workers, even though the tender criteria are defined by the main enterprise directly, and (iii) shortly after the negotiations began, the USO received and continues to receive threats from a criminal gang known as the “Aguilas Negras” (Black Eagles), but the authorities have failed to make any inquiries in that regard.
5. 227. With regard to Ecopetrol’s Barrancabermeja refinery, which has 10,000 workers, 8,000 of whom work for contractor enterprises, the complainants allege that: (i) since 2008, there have been constant violations of freedom of association, including threats of non-renewal of contracts if workers become USO members; (ii) a member of the USO national executive committee was dismissed in 2009; (iii) eight disciplinary proceedings were initiated against union officials for publicizing the union newsletter using megaphones and for meeting with workers in designated safe areas; (iv) the police violently repressed a trade union demonstration on 9 November 2011, and there were reprisals against the USO; (v) a collective agreement was applied to workers who gave up their trade union membership, granting them better wage conditions and benefits than those under the USO–Ecopetrol collective agreement; (vi) as a result of an information session and a peaceful march organized on 16 May 2012 in the vicinity of the Barrancabermeja refinery, the enterprise took reprisals against 11 workers by sending them a third warning letter, which, under the enterprise’s internal regulations, allows it to terminate the contracts of the addressees, with a view to intimidating them.
6. 228. Regarding the Ecopetrol workers in Cartagena, the complainants allege that: (i) various union officials were the subject of disciplinary proceedings based on information obtained illegally using security cameras and microphones; (ii) five officials and three members were wounded by the police during the national demonstration held on 9 November 2011; (iii) on 10 November 2011, all unionized workers were denied access to the Cartagena refinery, which resulted in an official report of a work stoppage, ascribed to the employer; (iv) on 23 May 2012, Wilmer Hernández Cedrón, the USO Education Secretary, and Joaquín Padilla Castro, the Secretary for Press and Propaganda of the Cartagena subcommittee, were questioned over accusations of physical aggression and entering an area of the refinery without permission.
7. 229. With regard to the Reficar workers, the complainants allege that: (i) the USO is banned from conducting its union activities in the refinery of that enterprise (by means of orders to deny union officials access and bans on putting up information posters and distributing the USO newsletter) and, since April 2010, 35 disciplinary proceedings have been initiated against the USO’s Cartagena subcommittee for conducting union activities on the enterprise’s property; (ii) 119 workers were dismissed in March 2010 for participating in a day’s work stoppage which continued for a month and a half; (iii) the USO–Ecopetrol collective labour agreement does not apply to the workers of the enterprises belonging to the business group, as Reficar claims that the enterprise’s activities are not part of the oil industry.
8. 230. The complainants also allege other violations of freedom of association by the contractor and subcontractor enterprises used by Reficar, as in the case of CBI Chicago Bridge and Iron and its respective subcontractor enterprises: (i) in August 2011, Fredy Rogers and Edison Escobar were selectively dismissed on account of their USO membership; (ii) having sent various requests for intervention to the Ministry of Labour to resolve the dispute, CBI workers held a permanent assembly and work stoppage in March 2012, as a result of which the enterprise dismissed 189 USO members; (iii) the enterprise requested that the work stoppages of 2012 be declared illegal. Although the High Court of Cartagena, in a ruling of 15 November 2012, determined that the stoppage was not illegal, the Labour Appeals Chamber of the Supreme Court of Justice revoked the court ruling and determined that the stoppage was illegal, thereby violating due process by making an evidentiary assessment which ran counter to the evidence, and violating freedom of association and the right to strike; (iv) in July 2011, Consorcio Lithos refused to deduct the union dues of its workers who were USO members; and (v) as a result of the union’s filing of a complaint of a series of labour violations before the Ministry of Labour, the Tiger-Sepam enterprise dismissed some 200 USO members.
9. 231. With regard to the Propilco workers, the complainants allege that: (i) in May 2011, 112 workers who were providing services in that enterprise through temporary employment agencies became members of the USO and were immediately dismissed on the pretext that the commercial contract between those enterprises and Propilco had been terminated, a tactic which had been used on various occasions to prevent workers in the sector from joining the USO; (ii) in July 2011, the enterprise and one of its subsidiaries rejected the list of demands presented by the USO, arguing that they are not part of the oil industry; (iii) on 31 August 2011, the enterprise dismissed Miguel Pacheco, who had been chosen to negotiate the list of demands; (iv) as a result of the list of demands, the enterprise and its subsidiary instituted legal proceedings to request that the USO’s statutory reform be declared illegal, that the enterprises be exonerated from the obligation to negotiate the list of demands and that the USO be ordered to pay the personal and material damages arising from trade union membership; (v) on 29 September 2011, the USO’s Cartagena subcommittee filed a complaint against Ecopetrol, as the main enterprise, and against Propilco before the Public Prosecution Service for violation of freedom of association and collective bargaining; and (vi) on 4 May 2012, Edilberto Ulloque, the last remaining USO member in the enterprise, was dismissed due to instances of alleged misconduct years earlier.
10. 232. Based on the events described in the paragraphs above, the complainants conclude their allegations by denouncing the following violations of ILO Conventions Nos 87 and 98: (i) the violation of freedom of opinion and expression through the restriction of the circulation of the USO newsletters, the dismissal of workers for having distributed them, the hiding of USO banners and the stigmatization of union officials who filed labour complaints; (ii) restrictions on the right to join trade unions, not only due to the aforementioned restrictions on the circulation of trade union information but also due to the temporary nature of contracts, which allows enterprises to demand that workers give up their USO membership to obtain the signature or renewal of their contracts and, lastly, due to pressure to join another union, known for its close relationship with the employers; (iii) lack of protection against anti-union discrimination, in particular against the practice of blacklisting, threats of non-renewal of fixed-term contracts without the existence of adequate mechanisms to provide fast and effective protection against such acts. In this regard, the complainant alleges that complaints filed before the labour inspectorate take two to three years to be examined; (iv) the violation of the right to strike, in so far as the labour legislation (in particular section 430(h) of the Labour Code) continues to prohibit strikes in the oil sector and that 24-hour work stoppages organized by workers in the sector lead to disproportionate police repression, non-renewal of the contracts of workers that participate in them, and stigmatization.

B. The Government’s reply

1. 233. In a communication of February 2013, the Government transmits the replies of the Ecopetrol, Meta Petroleum Corp., Petrominerales, Reficar and Cepcolsa enterprises. In its reply, Ecopetrol indicates that: (i) the allegations regarding the group’s contracting policy (using contractor enterprises and contracts limited to specific projects) do not concern freedom of association or the content of ILO Conventions Nos 87 and 98 and are, therefore, outside the Committee’s mandate; (ii) the organization’s allegations are based on vague complaints without reference to concrete evidence; (iii) the allegations of anti-union disciplinary proceedings against union officials and members do not tally with the reality, since the single disciplinary code (applicable to the enterprise’s direct employees since they hold public servant status) does not indicate that union membership or activity provides grounds for disciplinary action; (iv) entry into safe areas is regulated in order to protect the persons working there, and the disciplinary inquiries referred to in the complaint do not constitute anti-union persecution but instead seek to ensure that industrial safety standards are met; (v) the enterprise respects the unions’ right to circulate their newsletter and other information; however, certain trade union activities during working hours and in workplaces, without the enterprise’s authorization, can result in work stoppages and affect the trade union rights of other workers; (vi) the USO, without regard for constitutional and legal considerations, has been promoting work stoppages in an enterprise which provides an essential public service (see ruling C-450 of 1995 of the Constitutional Court); (vii) in addition, constant work stoppages make a mockery of the five-year collective agreement signed in 2009 by Ecopetrol and the USO and violate the principle of bargaining in good faith; (viii) the work stoppage on 9 November 2011 – which continued until 18 November – was not peaceful, and required the intervention of the police in order to maintain public order and safeguard the enterprise’s premises; (ix) Agreement No. 01 of 1977, recognized by the Council of State, does not provide for wages above those in the collective labour agreement; (x) the accusations that video cameras were installed on the enterprise’s premises in order to take disciplinary action against unionized workers are false since the cameras were installed purely for security reasons; (xi) more generally, Ecopetrol reaffirms its commitment to developing collective labour relations based on mutual trust, as illustrated by the Agreement to promote relationships of trust, signed on 24 April 2009 with the USO and other stakeholders; the Ecopetrol-USO collective agreement for the period 2009–14; and the agreement on dismissed workers (collective labour dispute 2002–04) and the agreement on enterprise, production and worker welfare development, signed that same year.
2. 234. In its reply, Meta Petroleum Corp. indicates that: (i) it is responsible for operations in the Quifa and Rubiales oilfields, while Pacific Rubiales Energy Corp. is a Canadian enterprise which does not exist in Colombia and which does not have employees in the country, therefore it is impossible, both in fact and in law, for Pacific Rubiales Energy Corp. to violate freedom of association in Colombia; (ii) there are no USO members under contract with Meta Petroleum Corp. and the enterprise has not been notified by the USO of any of its workers becoming USO members; (iii) the enterprise has always had internal mechanisms to address the demands of its workers; furthermore, the enterprise encourages its subcontractor enterprises to address the demands of their own workers; (iv) the various work stoppages initiated by workers of contractor and subcontractor enterprises were not preceded by the presentation of a list of demands nor by the notification of specific complaints or demands. Instead, the USO took the law into its own hands and proceeded to stage a violent work stoppage on 18 July 2011. This not only violated the freedom of movement and the right to work of employees in the field but also endangered the security of the entire community by not complying with the industrial security requirements for operations in oil fields; (v) the enterprise restricted access to the oil field to avoid acts of violence; (vi) the USO members who entered the oil field did not act like union officials but like agitators, encouraging violence, damaging property and injuring workers; (vii) as a result of these acts, various contractor enterprises filed criminal complaints with the Public Prosecution Service, which are currently under examination; (viii) notwithstanding the above, the enterprise agreed to engage in dialogue with the USO on 19 July 2011, which resulted in an agreement which the enterprise strictly adhered to; (ix) however, the USO broke with that agreement by carrying out further violent acts in the oil field in September and October 2011; (x) in view of the serious danger and vandalism in Campos Rubiales and Quifa, a staff entry and exit policy was adopted and applied to everyone, regardless of trade union membership, but with the requirement of being under contract with a contractor or subcontractor enterprise; (xi) the termination by the enterprise of the other civil or commercial contracts with contractor enterprises is part of the standard contracting system and the nature of activities carried out on the oil field, and it is totally unrelated to the exercise of freedom of association; (xii) on 6 October 2011, the enterprise signed an agreement with the Union of Workers of the National Energy Industry and Domestic Public Services (UTEN) to standardize the labour activities which make the enterprise’s contractors and subcontractors entitled to non-statutory and wage benefits; the number of UTEN members exceeds 50 per cent of the enterprise’s workers, the relationship between the enterprise and UTEN is one of respect enabling the conclusion of collective and labour agreements, as was the case in 2011, 2012 and 2013; (xiii) the enterprise has never induced anyone to give up their trade union membership, as attested by the increase in the number of the unionized workers in the enterprise (3,662 additional members between January 2012 and February 2013); (xiv) neither the enterprise nor the contractor enterprises apply entry or hiring restrictions based on trade union membership or activities. This applies to Norlay Acevedo Gaviria, Diego Iván Ríos Rivera, José Dionel Higuera Gualdrón and Alexander Barreto Ballesteros.
3. 235. In its reply, Petrominerales indicates that: (i) the complaint is not receivable because it contains vague allegations and lacks substantiating evidence; the enterprise collaborates with Ecopetrol on various projects but not in Barranca de Upía, which is the subject of the complaint; (ii) the fact that it collaborates with Ecopetrol on various projects does not in itself mean that the enterprise is necessarily under the obligation to negotiate with the USO; (iii) Petrominerales is not a contractor or subcontractor enterprise of Ecopetrol, therefore the sections of Ecopetrol’s collective agreements concerning its contractors and subcontractors do not apply to it; (iv) the allegation that since 2010 the enterprise has required its workers to give up their USO membership is unsubstantiated, given that there are no USO members among its workers; (v) likewise, the allegation that the enterprise pressures its contractor and subcontractor enterprises into rejecting workers belonging to the USO is entirely false and lacking in any evidence whatsoever; (vi) the enterprise is in no way connected to the threats against the USO by a criminal gang known as the “Aguilas Negras” and it rejects the insinuations made by the USO in this regard, which would endanger the lives of the enterprise’s staff, and particularly those working on the oil field; (vii) the allegation of the anti-union dismissal of 40 workers of contractor enterprises is unfounded, since the workers’ contract was terminated as a result of the completion of the projects agreed between Petrominerales and its contractor enterprises. In this regard, the enterprise is not aware of any complaint or claim in relation to the aforementioned termination of employment contracts.
4. 236. In its reply, Reficar indicates that: (i) the 35 disciplinary proceedings resulting from trade union activities on the enterprise’s property concern decisions by Ecopetrol, the employer of the workers concerned; (ii) on 29 April 2010, USO representatives, accompanied by some 50 people, entered the enterprise’s property without permission and by non-peaceful means; (iii) the USO–Ecopetrol collective agreement does not apply to the enterprise, which is an independent third party; (iv) the enterprise established a policy for the admission of the trade union onto its premises, which was agreed upon with the USO and which complies with national and international legislation regarding freedom of association. In this regard, it attaches proof of 20 authorizations admitting USO officials; (v) there is therefore no restriction on the circulation of trade union information and, in fact, in 2011 and 2012, the USO made little use of its visiting rights under the aforementioned admission procedure; (vi) the dismissal of 189 USO members by the contractor CBI as a result of the work stoppage on 17 May 2012 was upheld in a ruling of 10 April of the Labour Appeals Chamber of the Supreme Court of Justice, which held the USO responsible for the work stoppage.
5. 237. In its reply, Cepcolsa indicates that: (i) the complaint is not admissible because it contains vague allegations and lacks substantiating evidence, as demonstrated for instance in its failure to indicate the names of the workers who were allegedly victims of anti-union dismissals and the date of those dismissals; (ii) nor does it provide evidence of the USO membership of certain workers of the Montajes JM enterprise; (iii) the Committee on Freedom of Association is confronted with a highly reprehensible means of exerting pressure on workers and employers through dark forces which seek to foster conflict in all its forms in labour matters, leading to violence and acts of intimidation; (iv) the work stoppage in the Montajes JM enterprise did not follow any formal request by the workers and it was only on 21 June 2011, when the stoppage was already under way, that the enterprise received a written communication from the USO; (v) according to the manager of Montajes JM, workers who said that they wished to continue working were threatened, thus feeling obliged to stop their activities; (vi) in the following days, a number of death threats were received by enterprise staff and by project staff in general; on 1 July 2011, as a result of this escalation, the Montajes JM enterprise requested the definitive termination of its contracts with Cepcolsa; (vii) the allegation of disproportionate police repression in relation to the work stoppage is also false, given that the aforementioned intimidating and threating acts justified the presence of the police force to act as a deterrent.
6. 238. Pursuant to the information provided by the aforementioned enterprises, the Government indicates that: (i) the allegations relating to the type of contracts used by enterprises in the oil sector are very vague and it is unclear in what way the types of contracts used in the sector constitute a violation of freedom of association; (ii) the complainants do not provide evidence to substantiate their allegations; (iii) the acts allegedly violating freedom of association are illustrated by only a few isolated demonstrations by a small number of workers who indicate that their request to leave the union was not voluntary, whereas the allegations were not notified to the labour authorities; (iv) the police intervention complied with the Constitution and with the law, ensuring the respect of public rights and liberties, and guaranteeing public order; (v) the workers who were allegedly affected by the police’s intervention could have approached the competent judicial bodies in order to shed light on the events and to identify those responsible; (vi) likewise, regarding the protection of freedom of association, Colombian legislation provides sufficient instruments to enable those who consider that their rights have been violated to avail themselves of such protection mechanisms; (vii) the Ministry of Labour carried out 63 inquiries into contractor enterprises in the oil sector in the department of Meta for “the alleged violations of labour and social security rights”. One of these inquiries relates to the alleged violation of the freedom of association by contractor enterprises of Pacific Rubiales Energy and has been referred to the Territorial Directorate of Cundinamarca; (viii) in addition, the complaint regarding the alleged violation of freedom of association was submitted to the Public Prosecution Service; (ix) Cepcolsa and its contractor Montajes JM received penalties for their violation of labour standards; (x) the USO filed an administrative labour complaint against Pacific Rubiales Energy and Meta Petroleum Corp., alleging the widespread termination of commercial contracts with contractor enterprises as a form of anti-union discrimination, and the denial of access to oil fields for USO members; (xi) in resolutions of 19 April and 2 and 26 July 2013, the Ministry of Labour determined the enterprises not to be criminally responsible for the alleged anti-union acts; and (xii) in a ruling of 10 April 2013, the Labour Appeals Chamber of the Supreme Court of Justice declared that the work stoppages staged by the USO in March, April and May 2012 were illegal. The proceedings for the protection of constitutional rights (tutela) filed by the USO were rejected by both the criminal and civil chambers of the Supreme Court of Justice.

C. The Committee’s conclusions

1. 239. The Committee observes that this case refers to multiple alleged violations of the right to freedom of association within the Ecopetrol enterprise and various associate and contractor enterprises operating in the oil sector, and that on the basis of those acts, the complainants allege the following violations of ILO Conventions Nos 87 and 98: (i) restrictions on the USO’s access to workers in the sector and limitations on its freedom of expression; (ii) restrictions on the right to freedom of association, through a series of acts of anti-union discrimination such as use of pressure or coercion of the workers in the sector, facilitated by the widespread use of outsourcing and of fixed-term contracts; (iii) lack of effective protection on the part of the public authorities against the many acts of anti-union discrimination reported in the context of the present complaint; and (iv) violation of the right to strike consisting of a prohibition of strikes in the oil sector, excessive police repression, dismissals and stigmatization of workers participating in 24 hour work stoppages.
2. 240. The Committee notes the observations of various enterprises referred to in the complaint that were transmitted by the Government, in which they: (i) emphasize the vagueness of many of the allegations and the lack of supporting evidence; (ii) deny the existence of limitations on USO officials’ and members’ access to the exploitation fields, stating that there are objective reasons of industrial safety which require access to the fields to be regulated; (iii) dispute the veracity of the allegations of anti-union discrimination; and (iv) consider that the police intervention during the work stoppages was essential, in view of the violent nature of the stoppages.
3. 241. The Committee also notes the Government’s response, in which it concurs with the observations of the aforementioned enterprises as to the vagueness of the allegations and lack of evidence and adds that: (i) the police complied with their mandate and the constitutional order throughout their intervention in the stoppages; (ii) the Supreme Court ruled that the USO was responsible for organizing illegal and violent stoppages in 2012; (iii) the USO and its members could have used the various internal mechanisms to report the violations alleged in the complaint; (iv) the various allegations submitted to the Ministry of Labour in relation to enterprises in the oil sector are resulting in appropriate inquiries; and (v) the labour administration complaint filed by the USO on 2 February 2012 against Pacific Rubiales Energy and Meta Petroleum Corp. resulted in Ministry of Labour resolutions determining that these enterprises were not criminally responsible for the alleged anti-union acts.

Alleged restrictions on the USO’s access to workers in the sector and limitations on its freedom of expression

1. 242. Regarding the allegations of restrictions on the USO’s access to various exploitation fields and workplaces in the sector, the Committee observes that the enterprises referred to in the allegations state that there are indeed certain access restrictions in place for some or all of their facilities and that those limitations are not anti-union but instead are required for industrial safety reasons (as safety zones), or that they are justified as a result of the violent events arising during the work stoppages referred to in the complaint. In this respect, the Committee notes that some enterprises state that only their own workers and those of contractor or subcontractor enterprises have access to their facilities, whereas others state that they have developed procedures concerning trade union access which do allow visits from union officials who do not work for the enterprises in question, subject to certain conditions. Lastly, the Committee notes that the Government’s observations do not contain any specific information on this point. In relation to this aspect of the complaint, the Committee recalls the principle that governments should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1103]. As to the modalities, access to the workplace should not of course be exercised to the detriment of the efficient functioning of the entity concerned. Therefore, in such instances, the Committee has often stated that the workers’ organizations concerned and the employer should strive to reach agreements so that access to workplaces, during and outside working hours, should be granted to workers’ organizations without impairing the efficient functioning of the administration or the public institution concerned [see Digest, op. cit., para. 1109]. The Committee therefore requests the Government to take the necessary measures to ensure that, under conditions which take into account objective security concerns and do not impede their efficient functioning, all of the enterprises in the oil sector allow external trade union officials to enter staff areas, whether to meet with their members or to inform non-unionized workers of the potential benefits of membership. The Committee requests the Government to keep it informed in this respect.
2. 243. The Committee further observes that, as described in the documents provided by the corresponding enterprises, certain enterprises that have regulated the access of external trade unionists to their facilities make it a prerequisite to entry that they provide a list of workers of the contractor and subcontractor enterprises operating in the area who are members of the trade union in question. In this regard, the Committee notes that the Government’s observations contain no specific information on this point, and recalls that the establishment of a register containing data on trade union members does not respect rights of the person (including privacy rights) and such a register may be used to compile blacklists of workers [see Digest, op. cit., para. 177]. The Committee therefore requests the Government to take the necessary measures to ensure that regulating the access of trade union officials to the exploitation and production sites of enterprises in the sector does not give rise to the establishment and circulation of lists of trade union members. The Committee requests the Government to keep it informed in this respect.
3. 244. With regard to the alleged prohibition on circulating the USO newsletter in the Ecopetrol refinery in Barrancabermeja and in the Reficar facilities, the alleged hiding of the USO flag by that enterprise in November 2011, and the alleged imposition of disciplinary measures on eight union officials in this context by Ecopetrol, the Committee notes the enterprise’s observations stating that it respects the right of trade union organizations to broadcast information, but that certain trade union activities at the workplace during working hours without authorization from the enterprise may cause work stoppages and affect the rights of others. In this respect, the Committee recalls the principle that the display of union flags at meetings in the workplace, the putting up of union bulletin boards, the distribution of union news and leaflets, the signing of petitions and participation in union rallies constitute legitimate trade union activities [see Digest, op. cit., para. 162]. In the light of the foregoing, the Committee requests the Government to invite the enterprises in the sector and the USO to engage in dialogue to determine arrangements for the distribution of union information that will not interfere with the efficient functioning of the relevant enterprises. The Committee requests the Government to keep it informed in this respect.

Allegations of acts of discrimination and use of pressure and coercion to restrict or undermine the right to freedom of association in enterprises in the sector

1. 245. With regard to the many generic allegations of dismissals, disciplinary measures, non-renewal of employment contracts, and use of pressure and coercion against USO officials and members, the Committee observes, firstly, that a series of cases referenced in the complaint contain insufficient information on the dates of the alleged acts and on the persons affected by them, and consequently invites the complainants to send further details on the said acts, to state whether legal proceedings have been initiated or labour administration complaints have been filed concerning those matters and, if so, to keep the Committee informed of their outcome. If this information is not received, the Committee will not proceed with the examination of these allegations.
2. 246. Similarly, the Committee notes that it has limited information on the following allegations: (i) the disciplinary action taken on 23 May 2012 against Wilmer Hernández Cedrón, the USO Education Secretary, and Joaquín Padilla Castro, the Press and Propaganda Secretary of the USO’s Cartagena subcommittee; (ii) the selective dismissal of Fredy Rogers and Edison Escobar by a contractor enterprise of Reficar in August 2011; and (iii) the dismissal on 31 August 2011 of Miguel Pacheco, who drafted the Propilco list of demands, and the dismissal on 4 May 2012 of Edilberto Ulloque, the last worker of the enterprise who was a USO member. The Committee therefore requests the complainants to provide further details on the aforementioned acts, to state whether legal proceedings have been initiated or labour administration complaints have been filed concerning those matters and, if so, to keep the Committee informed of their outcome. If this information is not received, the Committee will not proceed with the examination of these allegations.
3. 247. Regarding the allegation of restrictions on access for USO member, Norlay Acevedo Gaviria, to the Campo Rubiales oilfield, the Committee observes that the labour administration complaint filed by the USO on 2 February 2012 was applicable to his situation. For this matter, the Committee takes note of the Ministry of Labour resolutions determining that the freedom of association was not violated in this instance.
4. 248. Regarding the allegations of restrictions on access to the Campo Rubiales exploration fields for USO member, Diego Iván Ríos Rivera, and of the non-renewal of the employment contracts of José Dionel Higuera Gualdrón, who is purportedly blacklisted, and of Alexander Barreto Ballesteros in retaliation for union activities they carried out, the Committee takes note of Meta Petroleum Corp.’s denial of the allegations and of the Government’s statement that the aforementioned workers did not use the internal means of recourse available to them. In this respect, the Committee observes that the Government states that the Territorial Directorate of Cundinamarca is carrying out an inquiry into an alleged violation of freedom of association by Pacific Rubiales Energy contractor enterprises, but that the Government does not, however, specify whether that inquiry concerns the aforementioned allegations. In the light of the foregoing, the Committee requests the Government, in the event that the labour administration complaint currently being examined does not include the said allegations, to immediately conduct an inquiry into them and to keep it informed of the outcome.
5. 249. Furthermore, the Committee observes that the allegations of anti-union discrimination contained in the complaint also refer to practices of termination of contracts between the main contractors and their contractor enterprises, where many staff of the latter are USO members, as is said to have happened when Pacific Rubiales-Meta Petroleum Corp. and Cepcolsa terminated their respective contracts with the Montajes JM enterprise, in June and November 2011 respectively, and in a similar operation by Propilco in May 2011 with various private employment agencies. In this respect, the Committee notes the first enterprise’s denial of the allegations and the second enterprise’s observations stating that, in view of the acts of violence and increasing threats to its staff’s personal safety that occurred during the various work stoppages, on 1 July 2011 Montajes JM requested the termination of the contract linking the two enterprises. The Committee also notes that the Government reports that Cepcolsa and its contractor enterprise, Montajes JM, were sanctioned by the Ministry of Labour for violating labour standards, but does not specify what those violations were. In addition, the Committee notes that the labour administration complaint submitted by the USO in February 2012 included in its allegations the widespread termination of commercial contracts with contractor enterprises as a form of anti-union discrimination used by the main contractors. In this respect, the Committee notes, on the one hand, that the Ministry of Labour considered in its resolutions that the lack of a direct legal labour relationship between the main contractors subject to the complaint and the dismissed workers meant that the former could not be held criminally responsible for the alleged anti-union acts, and on the other hand, that the latter did not meet the request by the USO to provide the main contractors with further information and evidence on the reasons for the termination of the commercial contracts with the contractor enterprises. In the light of the foregoing, the Committee requests the Government to immediately conduct or complete inquiries into the alleged anti-union termination of contracts between enterprises and to keep it informed of the outcome.
6. 250. With respect to the alleged negative impact of widespread use of fixed-term contracts on the exercise of trade union rights, the Committee first wishes to underline that fixed-term contracts should not be used deliberately for anti-union purposes. Further, the Committee points out that, in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights. The Committee therefore requests the Government to take this principle into account in the inquiries it conducts into the acts referred to in this complaint and that, on the basis of the concrete results of those inquiries, undertake consultations with the relevant social partners on possible measures to ensure that the use of fixed-term contracts in the petroleum sector do not adversely affect the free exercise of freedom of association.

Allegations that the public authorities failed to provide effective protection against the acts of anti-union discrimination

1. 251. As to the allegation that the public authorities failed to provide effective protection against the many acts of anti-union discrimination reported in the present complaint, the Committee observes in particular that the complainants criticize the length of time taken by the labour inspectorate to resolve the disputes submitted to it. In this regard, the Committee notes the information from the Government stating that the labour administration complaint submitted by the USO on 2 February 2012 alleging acts of anti-union discrimination resulted in a Ministry of Labour resolution dated 19 April 2013. The Committee also notes that, to date, it has not received information on the resolution of another allegation of anti-union acts against contractor enterprises in the oil sector in the department of Meta, which, according to a communication of August 2012 by the Ministry of Labour, was being examined by the labour inspectorate in Cundinamarca. Recalling that, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 835], the Committee requests the Government to take the necessary measures to ensure that the inquiries into the aforementioned allegation of anti-union acts, which are still pending, are completed without delay. The Committee requests the Government to keep it informed in this respect.

Allegations of violations of the right to strike

1. 252. Regarding the allegations of violations of the right to strike through the police’s violent repression of the work stoppages on 25 October and 9 November 2011 and through the dismissal of the workers who participated in those and in the May 2012 stoppage, the Committee observes that the Ministry of Labour states that the work stoppages gave rise to a large number of violent acts that necessitated police intervention, that those interventions complied with the constitutional and legal safeguards, and that the persons who may have been affected could have used the various internal mechanisms to report the possible excessive use of force by the police, but did not. The Committee further observes that the work stoppages of May 2012 led to legal action and the Supreme Court found that the movement had given rise to a large number of violent acts. In this respect, the Committee recalls the principle that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest, op. cit., para. 667].
2. 253. Furthermore, the Committee observes that the allegations in the complaint concerning strike also refer to the persistent prohibition under the legislation in force of taking strike action in the oil exploitation, production, refining and distribution sector, as it is considered an essential public service. The Committee recalls that during previous examinations of this question by the Committee, the Government indicated that the disruption of the sector could lead to circumstances in which the safety and even the health of the population are put at risk, as it could result in the deprivation of the country of fuel [see particularly Case No. 2355, 343rd Report, para. 451]. The Committee had asked the Government to take steps to make the necessary amendments to legislation so as to allow strikes in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service with the participation of the trade unions, the employers and the public authorities concerned so as to ensure the basic needs of the users of these services are satisfied [see Case No. 2355, 348th Report, para. 308].
3. 254. In this respect, the Committee notes judgment C-796/14 of 30 October 2014 from the Constitutional Court of Colombia concerning the constitutionality of article 430(h) of the Substantive Labour Code that prohibits strike in the sector involving the exploitation, production, refining and distribution of oil and its derivatives. The Committee observes that, in this judgment, the Constitutional Court indicates that: (i) the prohibition on strike in article 430(h) does not exceed the concept of essential public service contained in article 56 of the Constitution of Colombia which was understood by the Court, on the basis of the ILO Conventions, to mean that the suspension of the normal functioning of petroleum-derived fuel could put at risk fundamental rights to life and health; (ii) it is necessary to analyse in which contexts the interruption of work in the “exploitation, production, refining and distribution of oil and its derivatives, when these are intended for the normal supply of fuel to the country, according to the Government”, endangers the life, security and health of all or part of the population and in which contexts it does not, with the aim of defining the minimum conditions in which it is possible to exercise the right to strike in this specific hydrocarbon sector; and (iii) although these activities are in many cases necessary to guarantee basic services, as is the case with oil and its derivatives intended for the transport of people in emergency situations – for example, medical emergencies, or the transport of food or the supply of energy to institutions that provide services such as health and education – it is also the case that fuel generated by oil and its derivatives also is used for many other services, with respect to which the interruption of supply does not inevitably result in a risk to life, security or health of whole or part of the population, because in many cases there is no direct relation with the fulfilment of any fundamental right.
4. 255. The Committee finally observes that, in light of the above, the Constitutional Court calls upon the Legislature of Colombia to take steps, within two years, to define the scope of the contexts within which it would not be possible to exercise the right to strike in this specific hydrocarbon sector, in conformity with what is set out in article 56 of the Constitution.
5. 256. Noting with interest the abovementioned judgment, the Committee invites the Government to undertake consultations with the relevant social partners in relation to the legislative reforms requested by the Constitutional Court and recalls that the Government may seek the technical assistance of the Office in this respect. The Committee requests the Government to keep it informed of all developments in relation to judgment C-796/2014.

The Committee’s recommendations

1. 257. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures to ensure that all of the enterprises in the oil sector allow external trade union officials to enter staff areas, under conditions which take into account objective security concerns and do not impede the efficient functioning of those enterprises, whether to meet with their members or to inform non unionized workers of the potential benefits of membership. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to take the necessary measures to ensure that regulating the access of trade union officials to the exploitation and production sites of enterprises in the sector does not give rise to the establishment and circulation of lists of trade union members. The Committee requests the Government to keep it informed in this respect.
   • (c) The Committee requests the Government to invite the enterprises and the USO to engage in dialogue to determine arrangements for the distribution of union information that will not interfere with the efficient functioning of the relevant enterprises. The Committee requests the Government to keep it informed in this respect.
   • (d) With reference to the large number of allegations of anti-union acts against USO officials and members on which the Committee has limited information, the Committee requests the complainants to provide further details on the aforementioned acts, to state whether legal proceedings have been initiated or labour administration complaints have been filed concerning those matters and, if so, to keep the Committee informed of their outcome. If the information requested is not received, the Committee will not proceed with the examination of these allegations.
   • (e) The Committee requests the Government, in the event that the labour administration complaint currently being examined does not include the said allegations, to immediately conduct inquiries into the alleged restriction on access to the Campo Rubiales oil field for USO member, Diego Iván Ríos Rivera, and of the non-renewal of the employment contracts of José Dionel Higuera Gualdrón, who according to the allegations of the complainant organization, is blacklisted and of Alexander Barreto Ballesteros in retaliation for union activities they carried out. The Committee requests the Government to keep it informed of the outcome of the inquiries.
   • (f) The Committee requests the Government to immediately conduct or complete inquiries into the alleged anti-union termination of contracts between enterprises and to keep it informed of the outcome of the inquiries.
   • (g) With respect to the alleged negative impact and widespread use of fixed-term contracts on the exercise of trade union rights, the Committee requests the Government, in the inquiries it conducts into the acts referred to in this complaint, to take into account the principles that fixed-term contracts should not be used deliberately for anti-union purposes and that, in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights. The Committee requests the Government, on the basis of the concrete results of the pending inquiries, to undertake consultations with the relevant social partners on possible measures to ensure that the use of fixed-term contracts in the petroleum sector do not adversely affect the free exercise of freedom of association.
   • (h) The Committee requests the Government to take the necessary measures to ensure that the inquiries into the said allegation of anti-union acts, which is still pending, are completed without delay. The Committee requests the Government to keep it informed in this respect.
   • (i) Noting with interest that the Constitutional Court calls upon the Legislature of Colombia to take steps within two years to address the question of the right to strike in this specific hydrocarbon sector, the Committee invites the Government to undertake consultations with the relevant social partners in relation to the legislative reforms requested by the Constitutional Court and recalls that the Government may seek the technical assistance of the Office in this respect. The Committee requests the Government to keep it informed of all developments in relation to judgment C-796/2014.