Report in which the committee requests to be kept informed of development - REPORT_NO350, June 2008

1. 571. This complaint appears in joint communications by the National Union of Workers of Icollantas SA (SINTRAICOLLANTAS) and the National Union of Workers of the Processing Industry of Rubber, Plastic, Polyethylene, Polyurethane, Parts and derivatives of these processes (SINTRAINCAPLA) dated 31 May and 16 June 2007. On 9 July 2007 the trade unions sent additional information.
2. 572. The Government sent its observations in a letter dated 17 December 2007.
3. 573. 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. 574. In their communications of 31 May, 16 June and 9 July 2007, the complainant organizations allege the following: a series of benefits plans were drafted in 1991 and 1994 by the undertakings Uniroyal and Pronal (predecessors of Icollantas SA, purchased by Michelin) awarding higher benefits to non-unionized workers than those provided for in the collective agreement, as a result of which the company was sanctioned by the Ministry of Social Protection under Resolution No. 003565, dated 19 October 1994, for violating freedom of association; Michelin’s failure to comply with the Constitutional Court’s Decision No. T-330, of 1997, requiring the company to lay down the same conditions for unionized and non-unionized workers and prohibiting the company in the future from providing higher benefits for non-unionized workers, giving rise to eight cases of non-compliance producing rulings which were unfavourable to the complainant organizations; various cases of collective dismissals affecting large numbers of unionized workers; the hiring of associated labour cooperatives to replace the dismissed workers and to carry out tasks that were required by the collective agreement to be carried out by workers on contracts without limit of time, the appointment of an arbitration tribunal that failed to comply with legal provisions regarding the appointment of arbiters, in one case, and, in another case, despite the fact that the organizations had withdrawn the list of issues that had given rise to the collective conflict; persecution of trade union leaders for distributing trade union publications and denying union-related leave of absence.
2. 575. The complainant organizations state that in 1991 the company Uniroyal changed its name to Productora Nacional de Llantas (Pronal) and drew up a structure of benefits for non-unionized workers that were more advantageous than those provided for in the collective agreement. They further state that, in February 1994, Pronal merged with Icollantas SA, and introduced a new structure of benefits or collective accord in one of the production plants and closed down other production plants, with resulting dismissal of workers, including unionized workers; as a result, trade union membership declined from 900 members to 297 members. Consequently, administrative actions were initiated before the Ministry of Labour which, in its Resolution No. 003565, of 19 October 1994, ruled against the company for infringement of freedom of association.
3. 576. They add that, in June 1997, the company Icollantas SA was sold to Michelin, which continued to pursue this anti-union line. Workers lodged an appeal for protection of constitutional rights (tutela) and the Constitutional Court, in its decision (T-330/97) ordered the company to lay down the same conditions for unionized and non-unionized workers and banned it from providing in the future more advantageous benefits for non-unionized workers. The complainant organizations allege that the company complied with this ruling only in part, for which reason they instituted non-compliance proceedings, leading to rulings against the complainants. Subsequently they lodged a tutela suit before the Constitutional Court for violation of due process, as a result of which the company was required to pay workers outstanding wages and benefits for the period 1994 and 1997.
4. 577. The complainants added that, on 28 November 1997, the company sought permission from the Ministry of Labour to dismiss 350 workers from the Bogota and Cali plants, on the grounds of financial losses. The Ministry of Labour authorized the dismissal of 102 workers. The company then proceeded, on 13 October 1998, to dismiss 52 unionized workers from the Chuzacá plant, who were replaced by contract company labour. A further 44 workers were dismissed from the same plant, without just cause, on 26 October 2001.
5. 578. On 1 June 2002, the company submitted a new structure of benefits to workers; ten workers who did not wish to accept the plan were subsequently dismissed. A settlement was eventually found with eight of these workers, while the remainder instituted judicial action leading to rulings against the workers.
6. 579. The company is also persecuting trade union leaders who distributed the trade union newspaper.
7. 580. In June 2002, the trade union organization submitted a list of demands; once the stages provided for by law had been completed and no agreement reached, the company applied for the appointment of an arbitration tribunal. However, according to the complainant organizations, the legal procedures for appointing arbiters were flouted. The trade union organization initiated legal proceedings against the Council of State, which are currently ongoing.
8. 581. The complainant organizations further state that, in May 2004, Michelin hired a cooperative of temporary workers to replace the dismissed workers, removing several workers on direct contract.
9. 582. In 2004, workers decided to withdraw the list of demands submitted at that time, but the Ministry of Labour refused such withdrawal and appointed a compulsory arbitration tribunal which, disregarding the list of demands, issued an arbitration award against the workers. Cases were initiated with a view to quashing the arbitral award but the Supreme Court of Justice rejected such request, thus endorsing the arbitration award. The complainants maintained that the successive tutela actions brought by workers against the Supreme Court decision attest to the soundness of their position. However, the Constitutional Court refused to review the rulings.
10. 583. On 23 February 2005, SINTRAICOLLANTAS introduced a right to petition for infringement of the current collective agreement with regard to the contracting labour from cooperatives to carry out tasks that can only be executed, according to the collective agreement, by workers on contracts without limit of time. For this reason, labour proceedings were initiated.
11. 584. In late 2005, Michelin submitted a restructuring plan and dismissed several workers. When trade union leader Roque Rodríguez attempted to brief workers on the consequences of this restructuring process, he was penalized with three days’ suspension. Corresponding legal proceedings, which are ongoing, were consequently instituted. In January 2006, the company proceeded to dismiss 110 workers, including 30 trade union members.
12. 585. On 4 August 2006, the company applied to the Ministry of Social Protection for additional authorization to dismiss 210 workers from the Chuzacá and Cali plants on the grounds of financial losses. Pursuant to Resolution No. 002140 of 21 November 2006, the Ministry of Social Protection authorized the dismissal of 118 workers, which decision was endorsed by Resolution No. 00700 of 13 April 2007. As early as 27 March, despite the fact that the November resolution was not final, the company gave effect to the Ministry resolution by dismissing 24 workers from the Chuzacá plant (11 of whom were trade union members) and 41 workers from the Cali plant (31 of whom were trade union members).
13. 586. According to the complainant organizations, the company had in addition denied trade union leaves of absence. Indeed it granted only eight of the 14 requested leaves of absence. Moreover, it dismisses workers on contracts without limit of time and hires new workers, contractors and cooperatives.

B. The Government’s reply

1. 587. In its communication of 17 December 2007, the Government states firstly that the allegations raised by the trade union organizations date back to 1991, up to the present day, and raises the fact that the Committee on Freedom of Association has issued the opinion that while no formal rules fixing any particular period of prescription are embodied in the procedure for the examination of complaints, it may be difficult – if not impossible – for a government to reply in detail to allegations regarding matters which occurred a long time ago. The Government however conveys the arguments of Icollantas SA to the effect that the Uniroyal company referred to by the complainant organizations was not the same company as Icollantas SA in 1991 and, therefore, the reference to industrial relations in that company has no relevance to the present complaint.
2. 588. It states, moreover, that Uniroyal underwent a division, giving rise to the company Uniroyal SA and the company Productora Nacional de Llantas SA. The latter merged with Icollantas SA in 1994. At the time of the merger, Productora Nacional de Llantas had a structure of extra-legal benefits known as the “benefits plan”. The trade union in place within the company was SINTRAPRONAL which is registered as an active organization in the office of the Ministry of Social Protection’s trade union archive office.
3. 589. The company states that in 1994 a dispute arose in Icollantas SA regarding implementation of the benefits plan, which was corrected by the company in keeping with the outcome of administrative and judicial review (tutela Decision No. T-330).
4. 590. It adds that national shareholders led by Corporación Financiera del Valle, accounting for over 80 per cent of share capital, decided to seek international partners of strategic importance to enhance its viability in the complex tyre market at the national and international level. In December 1997, some shares were sold to the Michelin group which controlled Icollantas SA until December 2005, complying strictly with Colombian legislation. The reference to Decision No. T-330 of 17 July 1997 is made out of context and seeks to undermine the name of Icollantas SA, and of its partners, and of Michelin in particular, the latter having become involved after the date on which the judicial proceeding was executed. Any discrepancies in application of the collective agreement and of the benefits plan, between 1994 and 1997, were corrected and amended as required by the corresponding judicial decisions. Decision No. T-330 of 1997, made it clear to the parties that benefits should be granted equally to all unionized and non-unionized workers, which applied likewise to legal benefits such as enrolment in the social security system for health, occupational risks, severance pay, payment of service bonuses in June and December, 15 days’ annual vacation and family benefits. On this basis, in Icollantas SA, extra-legal benefits are granted, including: variable piecework payments for productivity; payment for hours of rest as well as for hours worked; paid trade union leaves of absence; paid training leave; paid leave of absence to attend conferences; vacation bonus; seniority bonus; marriage bonus; black smoke bonus; sum received upon the birth of a child; sum paid and leave of absence for death of family members; funeral expenses; store or cafeteria operated at cost; sports; safety policies; education bonuses; education loans; grants to study languages and housing loans. The above are granted under stringent financial circumstances that have been inspected by the Ministry of Social Protection.
5. 591. It adds that Icollantas SA’s application of Decision No. T-330 of 1997 has been the subject of eight judicial decisions which have all provided judicial acknowledgement that the company has complied with its obligations.
6. 592. On the subject of the requested authorization to carry out a collective dismissal, the company denies anti-union or reprisal motivation. The company states that in 1997 serious economic problems led to changes to the staffing structure. Pursuant to the Ministry of Social Protection’s authorization, the company dismissed both unionized and non-unionized workers, in full compliance with legislation regarding payment of the full value of severance pay. The complainant organization subsequently brought the complaint against the company before the Ministry of Labour – Labour Inspectorate of the municipality of Soacha – which culminated in the decision not to impose penalties in the absence of infringements of trade union rights and human rights.
7. 593. With regard to allegations to the effect that the company submitted a new benefits plan to workers in June 2002, and that it took the decision to dismiss ten workers who refused to accept it, a settlement having been found with eight of them and the remaining two having taken unsuccessful legal action, the company considers it contradictory on the part of the trade union organization, to make unsubstantiated assertions that several of the company’s workers were dismissed as a means of pressuring the trade union, without specifying names or dates, and simultaneously allude in the same paragraph to judicial complaints lodged in Cali, which culminated in rulings in favour of the company. The company points out that these favourable rulings reflect the fact that Icollantas SA had acted within the law.
8. 594. The company emphasizes that the trade union organizations have access to channels of communication within the undertaking and enjoy the participation and facilities of the company in the Cali and Bogotá plants. Icollantas SA has a number of notice boards around the premises for sole use by the trade union organizations to publish information on their trade union activity. In addition, the trade union publications circulate freely within the company.
9. 595. With regard to the suspension of the employment contract, the company asserts that this was a disciplinary measure, provided for in Colombian law and agreed to in the existing collective agreement between the trade unions and the company.
10. 596. As regards allegations that cooperatives were contracted, the company states that the latter carry out entirely different, autonomous and independent tasks and emphasizes that the process of cutting back on security staff occurred in obvious response to the company’s financial circumstances.
11. 597. An appeal had been lodged against the arbitration ruling of 6 December 2004 before the Supreme Court of Justice, which issued the decision on 12 May 2005 that the ruling was consistent with legislation and the Colombian Constitution. The trade union organizations have sought to ignore the abovementioned judicial finding, to the point of lodging a tutela action against the judges of the Supreme Court of Justice. The Supreme Council of the Judiciary considered the tutela action and rejected it.
12. 598. As regards the allegation that Icollantas SA has failed to comply with the collective agreement, the company states that the Ministry of Social Protection has opined that Icollantas SA has complied with collective agreements and applicable legal provisions. The company further asserts that the trade union organizations are endeavouring to ignore the provisions of article 5 of the collective agreement which states that the company has autonomy in organizing its production activity and likewise in matters of management and organization. It is a tendentious interpretation of the collective agreement, since employment contracts are without limit of time.
13. 599. The company adds that the complainant organizations’ reference to restructuring is intended to create confusion and that, as the trade union organizations state, the termination of certain workers’ employment contracts was carried out by mutual agreement before the administrative labour authorities, and involved sums in excess of the compensation provided for in Colombian legislation. In this context, Mr Roque Rodríguez circulated to workers a document that was denounced before the Attorney-General as being false. The company states that the termination of his employment contract is unrelated to his trade union activity. Nonetheless, Mr Rodríguez sought judicial defence of the rights that he considered to have been violated by lodging a tutela action before the First Criminal Municipal Judge of Bogotá, who rejected the applications in light of the absence of the alleged violation. This finding was confirmed in the second instance by the 33rd Criminal Circuit Court in a ruling of 3 August 2006.
14. 600. The company attests that it has maintained the high level of its workers’ incomes and that the absence of wage negotiations in most cases is due to the fact that the trade unions do not submit lists of demands, or withdraw them during the collective bargaining process. Consequently, the Sixth Labour Inspectorate of the Ministry of Social Protection, on 6 October 2006, imposed no penalties on Icollantas SA since it did not consider that any violation had occurred.
15. 601. In regard to the application to the Ministry of Social Protection for authorization to carry out a further collective dismissal of workers, the company alleges that these were required by the company’s difficult economic situation, which was confirmed by experts and occurred as follows:
    • (a) Application for authorization to carry out dismissal, consisting of dismissal with payment of compensation.
    • (b) All evidence requested by the parties was provided, with the trade union organizations in addition receiving the support of a lawyer and an economist, who opposed the dismissal in exchange for payment of compensation.
    • (c) The trade unions’ economist submitted his conclusions, confirming that Icollantas SA was experiencing financial difficulties.
    • (d) Resolution No. 02140 of 21 November 2006, authorized the collective dismissal of 118 workers in the Cali and Chuzacá plants subject to prior payment of the compensation required by law.
    • (e) The trade unions appealed this resolution, producing a clarification of the decision but, since the financial situation of the company was obvious, the authorization for collective dismissal was upheld.
    • (f) The appeal was decided after having made express reference to all the legal and technical arguments of the trade unions.
    • (g) Despite the fact that the decision was upheld, the trade unions submitted a further tutela action before the Sectional Council of the Judiciary of Cundinamarca, under another name, against the Ministry of Social Protection. The former decided on 16 April 2007 to find the application inadmissible given that the entire process complied with the law and it was apparent that both unionized and non-unionized workers were affected.
    • (h) This decision was confirmed by the Supreme Council of the Judiciary, Jurisdictional Disciplinary Chamber, on 16 May 2007.
16. 602. The company maintains that, despite the financial situation, it has met its obligations and has endeavoured to reach agreements with the trade unions, and that the latter have refused to seek a platform for agreement. For purposes of these mediation procedures and at the request of the company, the Ministry and the Confederation of Workers of Colombia (CUT) have been requested to participate. Icollantas SA has complied with every one of its numerous legal, extra-legal and agreement-related obligations. It goes on to state that the authorization for collective dismissal in 2006 did not affect any unionized workers. No complaints have ever been made against Icollantas SA for terminating their contracts and, at the present time, over 20 individuals enjoy trade union immunity.
17. 603. With regard to the hiring of third parties and cooperatives, complaints were made by the trade unions in this connection to the Ministry of Social Protection which ascertained that Icollantas SA’s policies for the hiring of third parties have been consistent with labour agreements and applicable legal provisions. Nevertheless, the unions instituted further legal proceedings, the final outcome of which is not yet known.
18. 604. The company adds that, in an obvious endeavour to engage in consultation and dialogue, it invited the trade unions to participate in seeking ways to resolve the industrial issues in the company, but the trade unions refused to participate. Their attitude is intransigent, going so far as to refuse to submit a list of demands since December 2005. The company denies the allegations made by the trade unions in regard to labour harassment and persecution of unionized workers.
19. 605. As regards the denial of trade union leave of absence, the company states that in 2006, 1,635 days of trade union leave of absence were granted, and 1,220 days were granted in 2007. The reference to this issue is attributable to the fact that the trade union did not specify the nature of the requested leave of absence. In all events, workers who submitted such applications were absent from work, with no consequence on their wages.
20. 606. With regard to the above information provided by the company, the Government states that, in its understanding, it is apparent that the company has taken economic measures intended primarily to make the company viable, and that its intention has not been to infringe freedom of association and trade union freedoms. The trade union has been taken into account in seeking ways to resolve labour issues, but refuses to participate in meetings organized by Icollantas SA.
21. 607. The Government stresses that action taken by the Ministry of Social Protection is consistent with the competencies provided for in domestic legislation. In this instance, it did not consider it necessary to impose any sanction on Icollantas SA, being of the view that it has complied with the law and the collective agreement.
22. 608. The Government submits a detailed description of the company’s financial situation, together with that of the tyre production sector in which Icollantas SA operates. The company maintains that, given the current market situation, there is a tendency to replace national production by imports. This has placed Icollantas SA at a disadvantage in this sector, despite the fact that the company has opted for national production. Unfortunately, the company’s attempts to bolster national production have not produced the desired financial results on account of the high manufacturing costs at the two plants in Cali and Chuzacá, and the re-evaluation of the peso which markedly depressed exports and boosted imports. Icollantas SA’s high production costs, combined with the fact that the wage structure could not be changed and industrial productivity was low, meant that in 2006 it became apparent that the company was not competitive and that the future of the plants in Chuzacá/Bogotá and Cali was uncertain in a globalized market. Moreover, the effects of the current free trade agreements have dealt a very real and final blow to the national tyre manufacturing activity carried out by Icollantas SA, with the result that the question of whether or not it would close down its industrial capacity once and for all depended largely on being able to reduce its labour costs and substantially boost its competitiveness, with productivity being a very central consideration.
23. 609. It is for this reason that, consistent with its philosophy of hiring Colombian employees, Icollantas SA has sought every means to approach trade unions, with a view to introducing greater flexibility in labour costs, but the unions denied this. Studies reveal that the starting wage paid by Icollantas SA is among the highest in the market.
24. 610. Lastly, the company notes that in March 2006, 24.3 per cent of the company’s employees were union members, rising to 26 per cent in March 2007, demonstrating that the number of employees who are trade union members is increasing and has never been affected in the manner brazenly claimed by the trade unions.

C. The Committee’s conclusions

1. 611. The Committee takes note of the allegations submitted by SINTRAICOLLANTAS and SINTRAINCAPLA and of the Government’s observations, together with the extensive documentation appended by both parties. The Committee notes that, in its response, the Government includes a lengthy response by Michelin addressing each of the allegations and which the Government merely transcribes, with concluding comments. The Committee understands that the Government associates itself with the company’s response.
2. 612. The Committee notes that this case refers firstly to allegations regarding events dating back to 1991 in connection with the drafting of a benefits structure by the company Uniroyal. The Committee notes that Uniroyal split into two companies, Uniroyal SA and Productora Nacional de Llantas SA; the latter merged with Icollantas SA which was ultimately purchased by Michelin, where the facts to which the remaining allegations refer took place. The Committee takes note that the remaining allegations submitted by the complainant organizations refer to events that occurred after Icollantas SA had been purchased by Michelin.
3. 613. As regards allegations relating to the benefits plan granted by the original Uniroyal company, the Committee takes note that the complainant organizations allege that these benefits were the subject of a resolution by the Ministry of Labour, dated 19 October 1994, imposing sanctions on the company. In this respect, the Committee has been of the view that, while no formal rules fixing any particular period of prescription are embodied in the procedure for the examination of complaints, it may be difficult – if not impossible – for a government to reply in detail to allegations regarding matters which occurred a long time ago. In these conditions, noting that the events in question go back over 15 years, and that the parties are no longer the same and that these events were the subject of a resolution under which the company was sanctioned, the Committee will not proceed with the examination of these allegations.
4. 614. The Committee notes that the allegations also refer to the following matters: (a) the drafting of a benefits plan applying solely to non-unionized workers, which was the subject of a tutela action before the Constitutional Court in 1997; (b) several cases of collective dismissal of workers; (c) persecution of leaders for distributing the trade union newspaper, lack of access by the trade union organization to facilities for communication within the company and denial of trade union leaves of absence; (d) appointment of a compulsory arbitration tribunal ignoring legislative provisions regarding the appointment of arbiters and despite the fact that workers had withdrawn the list of demands; and (e) the contracting of cooperatives to replace dismissed workers in carrying out tasks which the collective agreement requires to be carried out by workers on contracts without limit of time.
5. 615. As regards the drafting of the new benefits plan which the complainants allege to apply solely to non-unionized workers, the Committee notes the Government’s statement that this plan was drafted by the predecessors of Michelin and was the subject of a tutela action by the trade unions before the Constitutional Court, whose Decision No. T-330/97, of June 1997, ordered the company to establish the same conditions of work for both unionized and non-unionized workers and prohibited forthwith the granting of higher benefits to non-unionized workers. It appears from the allegations and from the Government’s observations, as well as from the company’s response, that Michelin was required to comply with this decision by the Court. In this respect, the Committee notes that this decision was the subject of eight cases of non-compliance, brought by the trade unions which claimed that the company did not fully comply with all the requirements in the decision and continued to flout the equal treatment that had been ordered. The Committee notes that the findings in these cases were in favour of the company which was not considered to have failed to comply with the provisions of the Court’s decision.
6. 616. In the present case, the benefits plan drafted by the company may be considered comparable to a collective accord, given that the workers who wished to benefit from this plan were required not to be trade union members, or to withdraw from the trade union organization to which they belonged. The Committee recalls that, pursuant to current legislation in Colombia, companies may enter into collective accords with workers, in cases where no trade union exists within the company representing over 30 per cent of the employees. This collective accord is essentially applicable to non-unionized workers. The Committee emphasizes that the Constitutional Court deemed that this practice infringed the right to equality and required the company to restore the situation of equality and forbade it in the future from granting higher benefits to non-unionized workers. The Committee notes that the complainant organizations indicate that the company subsequently drew up new benefits plans but provide no further details on the subject, except to say that at the time they informed the company of their disagreement. The Committee has previously examined similar situations in relation to Colombia and emphasized that the principles of collective bargaining should be respected, in the light of the provisions of Article 4 of Convention No. 98, and collective accords should not be used to undermine the position of trade union organizations. In these conditions, the Committee requests the Government to take the necessary measures to guarantee that the benefits plans granted by the company to non-unionized workers do not imply higher benefits than those enjoyed by unionized workers, in order to ensure that the principles of collective bargaining are promoted and fully respected.
7. 617. As regards collective dismissals, the Committee notes that, according to the allegations and to the Government’s reply, the company in 1997 applied for authorization to dismiss a number of workers and, upon receipt of such authorization, proceeded to dismiss 102 workers, of which 52 were trade union members. The Committee notes that the company maintains that this collective dismissal was dictated by economic reasons. Subsequently, in 2006, the company again applied for authorization to dismiss 210 workers, for economic reasons. The Ministry of Labour authorized the dismissal of 118 workers, on 21 November 2006. This decision was the subject of administrative and judicial appeals, which were rejected. The Committee notes that, according to the complainant organizations, the dismissal involved 24 workers from the Chuzacá plant, 11 of whom were trade union members, and 41 workers from the Cali plant, 31 of whom were union members. The company meanwhile states that no union members were dismissed. The Committee notes that the company maintains that it has endeavoured to reach agreement with the trade unions but that they have refused to seek forms of concertation. The Committee notes that, in this case, dismissals appear to have involved both unionized and non-unionized workers, and that it has not been possible to demonstrate an anti-union intention. In this regard, the Committee notes that it is not within its purview to pronounce itself on allegations relating to restructuring programmes, even when these involve collective dismissals, unless they have given rise to acts of anti-union discrimination or interference, and stresses the importance of consulting with trade unions when elaborating such programmes, since they have a fundamental role to play in ensuring that programmes of this nature have the least possible negative impact on workers.
8. 618. The Committee also notes that, during the most recent restructuring process, an attempt was made by Mr Rodríguez, leader of SINTRAICOLLANTAS, to inform workers about the restructuring plan, as a result of which he was suspended for three days. The Committee notes that, according to the Government, the penalty, consisting of a dismissal, was imposed because Mr Rodríguez had circulated a communication from the company that was false, to the effect that plans existed to scare workers into quitting. The Committee further notes that the company reported the falsified documents to the Attorney-General. The Committee observes that discrepancies exist as to the facts between the allegations and the Government’s reply. The Committee requests the Government and the complainant organization to clarify whether Mr Rodríguez was suspended or dismissed, the reasons for the penalty and whether Mr Rodríguez consequently instituted judicial proceedings. The Committee also requests the Government to keep it informed of developments in regard to the complaint submitted to the Attorney-General regarding the falsified document.
9. 619. On the subject of the allegations that trade union leaders are persecuted for distributing the trade union newspaper and that trade unions are not permitted facilities for communication within the company, the Committee notes that, according to the company, the trade unions have a notice board for their communications and have full freedom to distribute their newspapers. The Committee recalls that workers’ representatives should have at their disposal the appropriate facilities within the company to enable them to carry out their functions efficiently. Under these circumstances, given that the allegations and the company’s response forwarded by the Government are contradictory, the Committee requests the Government to ensure that trade union leaders have access to the facilities necessary to communicate with their members and that they are able to distribute the newspaper freely. The Committee requests the Government to keep it informed in this respect.
10. 620. With regard to the refusal to grant trade union leaves of absence, the Committee notes the information provided by the company to the effect that in 2006, 1,635 days of trade union leave of absence were granted, followed by 1,220 days granted in 2007. In the specific case of the complaint, the Committee takes note of the company’s statement that although the authorization was not granted, the workers did not come to work but their wages were not docked.
11. 621. With regard to the appointment of an arbitration tribunal without complying with legal provisions regarding the nomination of arbiters, in June 2002, the Committee notes that, according to the allegations, legal proceedings were brought against the Council of State, which are currently ongoing. The Committee requests the Government to keep it informed of the judgement and to ensure that the necessary measures are taken to guarantee compliance with legislation regarding the appointment and operation of arbitration tribunals.
12. 622. With regard to the appointment of an arbitration tribunal in 2004, the Committee notes that, according to the allegations, the arbitration tribunal was designated despite the fact that the list of demands had been withdrawn, and an arbitration decision was issued that failed to take account of the content of the aforementioned list. The Committee also notes that, according to the Government, the decision which expired on 31 July 2006 was the subject of cancellation proceedings before the Supreme Court of Justice which decided, on 12 May 2005, that the decision complied with legislation. The Committee notes that the Court considered that the trade union’s withdrawal of the list of demands was valid but further considered that since a complaint by the employer existed simultaneously, the arbiters were required to issue a decision regarding the complaint. The Supreme Court considered that the cancellation proceedings did not refer to the content of the decision itself, which modified the current collective agreement, but questioned the competence of the arbitration tribunal to take a decision regarding the employer’s complaint when the trade union had withdrawn its list of demands. In this respect, the Supreme Court considered in its decision that the arbitration tribunal was indeed competent to take a decision regarding the employer’s complaint. The Committee takes note that the successive tutela actions brought by the complainant organization against the decision were rejected, as was the challenge to the ruling brought before the Sectional Council of the Judicature of Cundinamarca, Jurisdictional Disciplinary Chamber.
13. 623. The Committee is of the view that this decision may lead to results that are not equitable. Indeed, the Committee observes that the arbitration decision took account only of the claims featuring in the complaint by the employer and not those contained in the list of demands of the trade union, given that it had been withdrawn. The withdrawal of the list of demands, although not provided for in the Substantive Labour Code, has been viewed in Colombian case law as a trade union right, being a consequence of the voluntary nature of negotiation, and this withdrawal is possible until the arbitration award is issued. This is a course of action that trade unions may take when they consider it preferable to extend the current collective agreement rather than risking the loss of previous gains, through an adverse arbitration decision.
14. 624. The Committee considers that the decision of the Supreme Court of Justice which considered that the trade union’s withdrawal of the list of demands was valid but further considered that, since a complaint by the employer existed simultaneously, the arbiters were required to issue a decision regarding the complaint, does in fact modify the case law which has applied until now. The Committee considers that this situation can alter the free and voluntary nature of collective bargaining and in this case may have caused prejudice to the trade union. In any event, the Committee recalls the importance of the principle of free and voluntary collective bargaining which excludes compulsory arbitration unless both parties agree. In these conditions, the Committee requests the Government to ensure that any modification of the system of industrial relations is subject to in-depth consultations with the social partners and, in this specific case, to examine the questions raised in order to promote effectively the development of free and voluntary negotiations.
15. 625. On the subject of the contracting cooperatives in 2005 to carry out tasks that are required by the collective agreement to be carried out by workers on contracts without limit of time, the Committee takes note that, according to the company, the collective agreement has been fully respected and that the company further explains that, pursuant to article 5 of the collective agreement, the company has autonomy both in organizing its production activity and in management and organization. The Committee notes that the trade unions initiated legal proceedings for non-compliance with the collective agreement and requests the Government to keep it informed of their final outcome. The Committee brings to the Government’s attention the principles contained in paragraphs 261 and 262 of the Digest of decisions and principles of the Freedom of Association Committee concerning cooperatives.