Effect given to the recommendations of the committee and the Governing Body - REPORT_NO365, November 2012

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

1. 30. The Committee last examined this case at its March 2010 meeting [see 356th Report, paras 572–599]. On that occasion, the Committee made the following recommendations:
   • (a) As regards the allegations concerning the replacement of dismissed workers with the members of cooperatives or employees of companies that do not enjoy freedom of association within AVIANCA SA, observing that the Committee of Experts on the Application of Conventions and Recommendations, when examining this matter, asked the Government to consider the possibility of an independent expert conducting a national survey on the application of the Associated Labour Cooperatives Act and the use thereof in the sphere of labour relations in order to determine whether or not workers in cooperatives can join trade unions, the Committee requests the Government to keep it informed of any measures taken in this respect.
   • (b) With respect to the allegations concerning pressure on trade union organizations in the same enterprise, resulting in many workers relinquishing their union membership, the drafting of a voluntary benefit plan outside the current collective agreement which particularly benefits non-unionized employees; the pressure on newly hired pilots to join the plan (with the result that they cannot join the trade union); and the adoption by the Ministry for Social Protection of internal labour regulations that were drafted without the participation of the trade unions, the Committee requests the Government to ensure that the voluntary benefit plan is not applied in such a way as to undermine the position of the trade unions and their bargaining capacity, in accordance with Article 4 of Convention No. 98, and that no pressure is placed on workers to join the plan. The Committee also requests the Government to keep it informed of the final outcome of the direct revocation proceedings brought against the decision approving the internal work regulations. The Committee invites the enterprise and the complainant organization to bring these issues to the attention of the CETCOIT and expresses the hope that the parties will be able to reach a negotiated solution.
   • (c) As regards the allegations concerning HELICOL’s refusal to update salaries owing to the union’s refusal to negotiate a new collective agreement, the existence of a collective accord that offers higher salaries to non-unionized workers than those paid to unionized employees and HELICOL’s unilateral imposition of one day per week for the pursuit of union activities by Captain Cantillo, while noting the Government’s invitation to the parties to bring these issues to the attention of the CETCOIT, the Committee hopes that the parties will be able to reach a negotiated solution to the dispute in order to develop harmonious working relations. The Committee requests the Government to keep it informed in this respect.
   • (d) Concerning the penalties of dismissal imposed on AEROREPUBLICA union officials Mr Héctor Vargas and Mr David Restrepo Montoya for asserting their right of expression and for claiming the exercise of their rights, the Committee expects that the judicial proceedings instituted by the union officials against their dismissal will be concluded in the near future. Should it be established that the dismissals occurred on anti union grounds, the Committee requests the Government to take the necessary measures to ensure that the dismissed trade union leaders will be reinstated without loss of pay. In the event that the reinstatement of the dismissed workers concerned is not possible for objective and compelling reasons, the Committee requests the Government to ensure that the workers concerned are paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. The Committee requests the Government to keep it informed in this respect.
   • (e) The Committee requests the Government to keep it informed of the final outcome of the administrative investigations against Vertical de Aviación Ltda which are being conducted by Inspectorates Nos 12 and 4 of the Territorial Directorate of Cundinamarca into alleged violations of the right to organize.
2. 31. The complainant organizations provided additional information in their communications dated 25 June 2009 (received on 2 March 2010), 31 May 2010, 10 May 2011, and 8 and 27 March 2012. The Government sent its observations in its communications dated 21 December 2010 and 21 January 2011, together with communications from the enterprises concerned dated 1 June, 15 December and 28 December 2010.

Additional information provided by the trade unions

1. 32. In its communication dated 31 May 2010, the Colombian Association of Civil Aviators (ACDAC) states the following:
   • – Recommendation (a). It is not aware that the Government has appointed an independent expert to conduct the national survey on the application of the Associated Labour Cooperatives Act and the use thereof in the sphere of labour relations.
   • – Recommendation (b). The Government has conducted no investigation into the pressure exerted on workers, despite the ILO’s requests that the workers’ right to organize be guaranteed. In addition, the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT) has not met and the Council of State confirmed the penalties imposed on the companies for having given preference to non-unionized workers. In a communication dated 25 June 2009 (received on 2 March 2010), the Colombian Association of Flight Attendants (ACAV) alleges that AVIANCA continues to offer workers a collective accord (called the voluntary benefit plan) in order to foster resignations from the various unions. Under the accord, non-unionized workers are granted non-statutory benefits that are the same or better than those obtained by the unions under the collective agreement.
   • – Recommendation (c). The ACDAC has not refused to bargain. Should no agreement be reached, the collective agreement remains in force until the collective dispute is resolved and is renewed every six months. As concerns salary increases, the enterprise has ignored a protection decision ordering the increase and the Government has taken no action to ensure respect for the rights of unionized workers. In addition, as stated earlier, the CETCOIT has not met.
   • – Recommendation (d). The proceedings instituted by Captains Vargas and Restrepo have been delayed, especially those of Captain Restrepo, which have been referred to a backlog chamber. Captain Restrepo subsequently filed an appeal in which he requested that the evidence of certain witnesses be annulled because it had not been notified. The appeal is pending before the High Court of Medellín.

The Government’s response to the Committee’s recommendations

1. 33. In its communication dated 21 December 2010, the Government states, regarding recommendation (b) on events at AVIANCA, that the enterprise and the National Union of Employees of AVIANCA (SINTRAVA) concluded an agreement on 12 August 2010 whereby the union withdrew its complaints in the case. For its part, the enterprise states that it does not have collective accords with workers, but that it does have a voluntary benefit plan which regulates the working conditions of workers who, in the exercise of their independence and on the basis of deeply held convictions, decide not to become members of a trade union organization. The plan was developed at the request of several flight attendants who did not want to become union members but wanted to obtain the same working conditions as workers benefiting from the collective agreement. The enterprise points out that the plan was drawn up with due regard for the provisions of the law and that it constitutes an alternative for those who voluntarily do not want to exercise the right to freedom of association. The Sixth Labour Backlog Court of the Bogotá Circuit, in a decision handed down on 30 September 2009 defining an industrial action requested by the ACDAC against the enterprise on the grounds that the voluntary benefit plan was unlawful, dismissed all the union’s claims. In addition, the enterprise underscores that none of the trade unions operating in it constitutes a majority union.
2. 34. Regarding recommendation (c), on events at HELICOL SA, the Government states that the enterprise wished to meet with the members of the mission that visited the country in July 2010 but that the meeting could not take place. The Government states that, according to the enterprise, it is difficult to make progress in the collective bargaining process because since 2004 the ACDAC has not facilitated that process. The Government repeats that it stands ready to consolidate the CETCOIT as a valid tripartite mechanism for improving industrial relations.
3. 35. Regarding recommendation (d), on the penalties of dismissal imposed on the AEROREPUBLICA union officials, the Government states that: (1) with regard to the dismissal of Mr Héctor Vargas, the Sixth Backlog Labour Court of the Bogotá Circuit found in the enterprise’s favour, on 31 August 2009, in respect of each and every one of the plaintiff’s claims; the case is pending a second-instance decision; (2) with regard to the dismissal of Mr David Restrepo Montoya, the enterprise was asked for information on the appeal proceedings and information has been provided to the effect that action has been taken in those proceedings; and (3) the ACDAC sent the Deputy Minister of Labour Relations a list of the complaints submitted, the administrative and judicial decisions handed down, and the Territorial Directorate of Cundinamarca reported that there are no ongoing or completed investigations into the ACDAC’s complaint of anti-union persecution, in particular the allegations that workers are being encouraged to resign from the various trade unions.
4. 36. Regarding recommendation (e), on the administrative investigations against Vertical de Aviación Ltda, the Government states that Resolution No. 012 of 19 January 2009 penalized the enterprise for having violated the right to freedom of association. An appeal is pending.
5. 37. Regarding recommendation (a), the Committee notes that the complainant organization states that no independent expert has been appointed to conduct the national survey of the application of the Associated Labour Cooperatives Act and the use thereof in the sphere of labour relations. In this respect, the Committee observes that the Committee of Experts on the Application of Conventions and Recommendations, in its most recent observation (November 2011), noted with satisfaction the adoption of Decree No. 2025 of 8 June 2011, further to the conclusions of the high-level tripartite mission of 2011. The Decree establishes, among other provisions, that no worker may be recruited without the labour rights and guarantees established in the Political Constitution and the law, including workers who are members of cooperatives.
6. 38. Regarding recommendations (b) and (c), the Committee notes the agreement between SINTRAVA and the enterprise. Noting the explanation of the company according to which the voluntary benefit plan is an option for the workers who, without joining a trade union, wanted to obtain the same working conditions as workers benefitting from the collective agreement, the Committee requests the Government to respond to the allegation that the voluntary benefit plan does not represent an extension of the collective agreement but rather contains more favourable conditions, thus weakening the union.
7. 39. Regarding recommendation (d), the Committee notes the Government’s statement that: (1) with regard to the dismissal of Mr Héctor Vargas, the Sixth Backlog Labour Court of the Bogotá Circuit found in the enterprise’s favour, on 31 August 2009, in respect of each and every one of the plaintiff’s claims and the case is pending a second-instance decision; and (2) with regard to the dismissal of Mr David Restrepo Montoya, the enterprise was asked for information on the appeal proceedings and information has been provided to the effect that action has been taken in those proceedings. The Committee requests the Government to keep it informed of developments in the proceedings.
8. 40. Regarding recommendation (e), the Committee notes the Government’s statement that Resolution No. 012 of 19 January 2009 penalized the enterprise for having violated the right to freedom of association and that an appeal is pending. The Committee requests the Government to keep it informed of the outcome of the appeal proceedings.

New allegations by the complainant organization and partial response by the employer organization

1. 41. Decrease in the number of ACAV members. The complainant organization states that, in 2007, when it sent the complaint, the ACAV had 388 members in the enterprise, but that now, following the dismissals and the workers’ switch to the voluntary benefit plan, it has only 299. The complainant organization further indicates that there has not been a single new member among the enterprise’s workers.
2. 42. For its part, the enterprise states that it does not know the total number of members, given the trade union nature of the ACAV. It nevertheless asserts that the right to freedom of association is free and voluntary in nature and that it is up to the worker alone to decide, independently, whether or not to join one or several trade union associations. Notwithstanding the foregoing, the enterprise states that the ACAV’s claim that there has not been a single new member among AVIANCA’s workers does not correspond to reality. The enterprise gives the example of nine new memberships in 2010.
3. 43. Refusal to grant visas to members. The complainant organization adds that for two years the enterprise has refused to grant crew member visas to flight attendants who are members of the union, and that the enterprise sent a letter stating that the flight attendants were using the visas to engage in illegal activities. Thirty-six people, all long-standing employees of the enterprise and ACAV members, were refused the work visa and asked to produce a police record to check whether they were in any way involved with the courts; the reply was negative in every case. An investigation was launched, and it was established that the enterprise had an agreement with one of the country’s public prosecution services to deny the visas in order to prevent drug trafficking. On the basis of this agreement, a list was sent to the embassy naming a group of flight attendants who were alleged drug traffickers. The complainant organization states that the principal indication pointing to this conclusion is that the enterprise changed its internal regulations in 2004 to include the obligation for workers to have their papers and visas in order if they wanted to be employed by it; denial of the visa is a fair reason for cancelling the employment contract. The complainant organization concludes that the enterprise presumably provides the embassy with untrue information so that the embassy will not grant the visas and the enterprise will be able to dismiss the flight attendants on the basis of the internal regulations.
4. 44. In this respect, the enterprise states that it respects migration laws and does not interfere in the freedom of the authorities of other countries to issue visas. The enterprise states that, as the trade union has been repeatedly informed, it has sent no official communication whatsoever to the embassy in question in an effort to have it deny visas to workers who are members of the trade union, and it is not aware that visas have been denied on the basis of the workers’ membership of the union. The Committee notes this information.
5. 45. Anti-union dismissals. The complainant organization also states that the enterprise continues to dismiss workers without just cause, subjecting them to disciplinary proceedings the result of which, even though it is proven that the workers in question are innocent of the charges against them, is the dismissal of union members, namely: María José Van Brackel, Camilo Barrera, Patricia Panqueva, Juan Carlos Altamar, Bibiana Salamanca and María Constanza Torres.
6. 46. In this respect, the enterprise states the following:
   • – María José Van Brackel: the enterprise took disciplinary action when the worker did not report for duty on 3 February 2008 on flight 019 from Barcelona to Bogotá without providing a satisfactory explanation, in particular regarding the supposed difficulties encountered with the Barcelona airport authorities. The enterprise affirms that it is not true that the flight attendant was dismissed after having turned up on time for a flight because of a delay in a search carried out by the Barcelona police. The worker provided no information or explanation about the delay in the search by the Spanish authorities, and the enterprise states that it upheld due process and the right of defence during the disciplinary proceedings, notifying the union at each stage. The enterprise states that the matter is now before the Second Labour Court of the Bogotá Circuit.
   • – Camilo Barrera: the enterprise took disciplinary action as a result of the worker’s reluctance and repeated delays in legalizing the incapacity for work from which he presumably benefited, without providing a satisfactory explanation for the situation. During the month of August 2008 the worker benefited from a total of 11 days of incapacity that were not legalized. The case was heard by the Circuit Court of Bogotá, which found in the enterprise’s favour.
   • – Patricia Panqueva: the enterprise took disciplinary action as a result of what happened on 19 July 2008 at Miami airport, where the worker was found by the United States authorities with a total of US$8,524. This clearly exceeded the prohibitions set out in the enterprise’s Flight Attendants’ Handbook (Manual de Auxiliares de Vuelo de la Compañía) with regard to permitted objects. The enterprise has initiated the process for removing union immunity; that process is currently ongoing.
   • – Juan Carlos Altamar, Bibiana Salamanca and María Constanza Torres: in these three cases, the enterprise took disciplinary action as a result of what happened on 9 January 2009, on the flight to Lima, when the workers were found to be in possession of 24 boxes of L-Carnitina solution, which cannot be brought into Peruvian territory. The boxes were confiscated by the Peruvian authorities, as they clearly exceeded the prohibitions set out in the enterprise’s Flight Attendants’ Handbook with regard to permitted objects. The matter is before the ordinary labour courts (Labour Courts 14, 22 and 27 of the Bogotá Circuit).
7. 47. The Committee notes the information provided by the Government to the effect that: (1) the dismissals cited by the complainant organizations were the outcome of serious misconduct and not related to union activities; and (2) proceedings are currently ongoing in five of the six cases. The Committee requests the Government to keep it informed of the ongoing court proceedings relating to the dismissals of María José Van Brackel, Patricia Panqueva, Juan Carlos Altamar, Bibiana Salamanca and María Constanza Torres.
8. 48. Lifting of the union immunity of Mr Daniel Barragán. Lastly, the complainant organization alleges persecution by AIRES SA against Mr Daniel Barragán, ACAV union leader since November 2008.
9. 49. In its communication dated 21 January 2011, the Government states that the following decisions have been handed down: (1) the Ninth Labour Court of the Bogotá Circuit lifted Mr Barragán’s union immunity in a decision of 5 February 2010; (2) the Bogotá District High Court confirmed the decision of the judge at first instance in its ruling of 23 July 2010; and (3) Criminal District Court 33, which supervises compliance (protection), rejected the claims as inadmissible because of ongoing court proceedings and annulled the conflict of interests presented in the protection petition. The Government encloses the copy of the decision and the reply of AIRES SA.
10. 50. In its communication dated 15 December 2010, the enterprise states that, given the existence of grave acts constituting serious misconduct, it brought proceedings before the Regular Labour Court of Bogotá District in order to obtain authorization to dismiss Mr Barragán with just cause. The proceedings started with a petition for authorization presented by the enterprise on 13 February 2009 and, after having ascertained the serious misconduct incurred by Mr Barragán, which is unrelated to his union activities, the Ninth Labour Court of Bogotá Circuit ordered that his union immunity be lifted and authorized his dismissal in a decision of 5 February 2010. The decision was appealed and subsequently confirmed in a Bogotá District High Court ruling of 23 July 2010. The Committee notes this information.
11. 51. In its communications dated 31 May 2010 and 8 and 27 March 2012, the ACDAC also refers to new acts that occurred in various enterprises, namely: (1) continuous violations of the collective agreement between the ACDAC and AVIANCA, resulting in the opening of an administrative police complaint against the enterprise, file 8877 of 12 March 2010, that is currently before the seventh Inspection Office of the Territorial Directorate of Cundinamarca; (2) failure to respect the standing union immunity and systematic persecution of Captain Orlando Cantillo, a member of the ACDAC board, by HELICOL SA; (3) the dismissal without just cause of Captains Juan Pablo Rodríguez Gil, Richard Eduard Cuellar Moreno, Helbert Alexander Riveros Díaz and Juan Carlos Cabrera Navarro, whose reinstatement was ordered by the courts; (4) the enterprise’s refusal to negotiate a list of demands; the union’s subsequent request for mandatory arbitration was appealed and is currently being reviewed by the Supreme Court; (5) the pressure exerted on workers to give up their membership; (6) unlawful deductions from Captain Roberto Ballen Bautista’s salary by AEROREPUBLICA; (7) the violation of arbitration awards; (8) the anti-union dismissal of Captain Juan Manuel Vega León; and (9) the anti-union dismissal by AIRES SA of three captains who joined the ACDAC and attempted to negotiate a collective agreement. The Committee awaits the Supreme Court decision mentioned under point 4. The Committee considers the other allegations below.
12. 52. Failure to respect the standing union immunity and systematic persecution of Captain Orlando Cantillo, member of the ACDAC board, by HELICOL SA. In its communication dated 10 May 2011, the complainant organization states that, in its resolution of 19 January 2011, the Ministry for Social Protection fined the enterprise 40 legal minimum monthly wages. The enterprise submitted a request for reconsideration and appeal on which the Ministry has yet to hand down a decision. The ACDAC goes on to state that, in the disciplinary procedure, the enterprise decided to terminate the captain’s employment contract before his union immunity was lifted in a case being heard by Labour Court 24 of the Bogotá Circuit. The enterprise suspended the captain’s work assignments; a new petition was filed against it and is currently being heard by the Ninth Labour Court of the Bogotá Circuit. The Ministry of Labour was asked to intervene, but to date no protection has been obtained for the persecuted trade unionist. In addition, in its communication dated 8 March 2012, the ACDAC alleges systematic acts of persecution, stating that the enterprise refused to give the captain union leave, professional training or the salary to which he is entitled and which, for some reason, it attached during the investigation of the captain in respect of a defective helicopter, offering him a preliminary agreement admitting guilt. The captain and union leader admitted no guilt whatsoever.
13. 53. The Committee notes this information and requests the Government to keep it informed of the outcome of the appeal proceedings. The Committee also requests the Government to send its observations on the fresh allegations of systematic persecution of the ACDAC union leader made in the communication of 8 March 2012.
14. 54. Unlawful deductions from salaries. Regarding the unlawful deductions made from Captain Roberto Ballen Bautista’s salary by AEROREPUBLICA, the Government states that the following judicial decisions have been handed down: (1) the Fourth Labour Court of Bogotá Circuit denied the petition for reinstatement in its decision of 21 September 2007; (2) Labour Court 19 of Bogotá Circuit found in the enterprise’s favour in respect of each and every claim made by Captain Ballen in its decision of 23 October 2009; and (3) the Labour Division of the Bogotá District High Court confirmed the decision in its ruling of 21 April 2010. The Government also forwards the enterprise’s reply in that respect.
15. 55. In its communication dated 28 December 2010, the enterprise stresses that: (1) Captain Ballen Bautista is the only crew member of the enterprise sitting on the ACDAC board, and (2) the captain twice failed to attend the half-yearly trials on a flight simulator. The captain made two requests for union immunity with a view to obtaining the restoration of the additional salaries that are due only when pilots complete their flight duties; the captain did not perform those duties since he refused to complete his training programme; the additional salary was therefore suspended as of February 2005. The courts determined that the enterprise acted in accordance with the law, and the Ministry for Social Protection imposed no successive fines on it.
16. 56. In its communication dated 10 May 2011, the ACDAC states that the Medellín High Court overturned the decision of the Sixth Labour Court of Medellín Circuit and withdrew the authorization to dismiss Captain Roberto Ballen Bautista. Since the enterprise refused to execute the court decision, an action for protection was filed which was denied by Municipal Criminal Court 33 but granted in second instance by the Ninth Criminal Court of Medellín Circuit. The Committee notes the information and requests the Government to take the necessary measures to ensure that the enterprise executes the court decisions and to keep it informed in this respect.
17. 57. Violation of arbitration awards. Regarding the alleged violation of arbitration awards, the Government states that, first, in compliance with administrative labour decisions, it wishes to reach an agreement with the ACDAC, and secondly, the Ministry for Social Protection has opened an administrative investigation into two complaints for violation of arbitration awards. Five visits were made to verify the points of the complaint, and a decision is pending. In its communication of 28 December 2010, the enterprise confirms that it complied with every summons it received from the Ministry for Social Protection and submitted all the documents requested by the ACDAC in order for the Ministry to be able to resolve the complaints. The Committee notes this information and requests the Government to take the necessary measures to implement the suggested agreement and to keep it informed of the outcome.
18. 58. Anti-union dismissal of Captain Juan Manuel Vega León. In this regard, the Government states that, in application of the decision of the Ninth Labour Court of Bogotá, the respective standards were ascertained, with the result that the captain did not meet the requirements for flight activities. Also, in its communication of 28 December 2010, the enterprise states that it complied with the court’s decisions and reinstated the worker and paid the financial penalties ordered. The Committee notes this information.
19. 59. Anti-union dismissals by AIRES SA. In its communication dated 10 May 2011, the ACDAC states that the rights of Captains Paola Natalia Hoyos and Francisco Hurtado have been protected by the courts following various appeals, but that the labour proceedings and the administrative complaints remain pending without having been resolved by the lower court. In addition, in its communication dated 27 March 2012, the ACDAC repeats that various pilots have been dismissed because they joined the union. The Committee requests the Government to send its observations in this respect.