Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s comments, received on 27 October 2003, relating to the new observations made by the Union of Maritime and River Transport Workers (UNIMAR), dated 18 March and 23 May 2003. The Committee also notes the other comments on the application of the Convention made by the Colombian Association of Airline Pilots (ACDAC), dated 31 March and 27 May 2003; the Workers’ Union of Administradora de Seguridad Limitada (SINTRACONSEGURIDAD), dated 25 March 2003; and the Confederation of Pensioners of Colombia (CPC), dated 22 May 2003. The Committee notes that all of these comments once again concern problems related to the preferential treatment of workers’ claims in the event of the bankruptcy of the employer and the payment of wages at regular intervals.

I.  Preferential treatment of workers’ claims

The Committee notes the comments of UNIMAR complaining that the Superintendence of Companies (a public body established by Act No. 222 of 1995 with responsibility for carrying out inspection, supervision and control over commercial enterprises), by ruling No. 440-020886, of 12 December 2002, authorized the implementation of the Payment Plan of the Merchant Navy Investment Company, S.A. (formerly the Grancolombian Merchant Navy, S.A.) and by means of ruling No. 440-002498, of 14 February 2003, it rejected the application for review and the appeal. According to this organization, these rulings ordered the non-payment of the wages owed to the workers for the period between 23 September 1997 and 31 July 2000, and no provision was made for the payment of the cases of the seafarers dismissed in 1997. The organization adds that the Ministry of Social Protection, by decision No. 000804, refused the application of the enterprise for the deposit of cautions or guarantees for wage claims, especially for retirement pensions, in view of the application of the enterprise for closure.

The Government, in its reply, contends that the Payment Plan of 12 December 2002, in its provisions not only complies with the guidelines set forth in Act No. 222 of 1995, but also preserves the preferential ranking of pensioners’ claims as set out in the Constitution in the priorities for the payment of its obligations, in accordance with ruling SU 1023 of 2001 of the Constitutional Court. According to the Government, the fact that all the persons concerned by the actuarial calculations are not covered by the Payment Plan is due to the fact that the latter have not complied with all the requirements to be recognized as having retirement pension claims. The Government adds that the Superintendence of Companies is not empowered to reject workers’ claims and that these subjects have to be dealt with by the competent labour authorities. Finally, the Government adds that the workers with claims that are covered by the declaration identifying the various components which constitute the enterprise (Declaratoria de Unidad de Empresa) have to have the consequences of this ruling upheld through legal action that is separate from the application for administration.

On the basis of the information provided, the Committee understands that the procedure for the liquidation of the assets of the Merchant Navy Investment Company S.A. (formerly the Grancolombian Merchant Navy, S.A.) has been set in motion and is following its course. The Committee notes in particular that the Payment Plan, established on 6 December 2002 by the liquidator and approved on 12 December 2002 by the Superintendence of Companies provides for the distribution of the proceeds from the liquidation of the bankrupt assets according to the order of priority of the privileged claims established by the Civil Code and that workers’ claims are given first rank.

The Committee requests the Government to keep it informed of developments in the process of the liquidation of the above enterprise, and on any other related legal action, and to provide precise information on the number of employees who have received the amounts due, the amounts paid and the envisaged schedule for final settlement of all debts. The  Committee considers it necessary to refer to paragraphs 353 and 505 of its General Survey of 2003 on the protection of wages, in which it considers that the designation of employees’ wages and entitlements as a preferential debt is a keystone of labour legislation in practically every nation and it therefore indicates that the need for enhanced protection of workers’ earnings is more pressing than ever and that, in this respect, the significance of Convention No. 173, which provides for the protection of wage claims through a guarantee fund, can hardly be overemphasized.

The Committee also recalls that in its previous observation it requested the Government to provide its comments on the allegations that had been made at that time by SINTRACONSEGURIDAD concerning the non-payment of workers’ wages due to the closure of the enterprise, but that it has not received the Government’s comments up to now. The latter trade union organization indicates, in a further communication dated 25 March 2003, that the problem of the payment of the wages due to the workers has still not been resolved. The Committee, therefore, requests the Government to provide its comments as soon as possible on the allegations of the SINTRACONSEGURIDAD and, in any case, to take the necessary measures to guarantee the payment of the wages due to the workers, in accordance with Article 11 of the Convention.

II.  Payment of wages at  regular intervals

The Committee notes the comments of the ACDAC alleging that for seven two-weekly periods the wages and other social benefits of employees in the Intercontinental Aviation Company have not been paid. According to this organization, workers are on the verge of economic collapse and cannot cope with their basic subsistence needs and those of their families, such as food, education, housing, transport and health, all of which is giving rise to a situation of stress among the workers, thereby endangering aviation security.

The Committee also notes the observations made by the CPC, denouncing the failure by the Government to pay pensions and health-care benefits to former workers, retirees and pensioners. The latter organization adds that it has been calling upon the Government and the Congress of the Republic to ensure the payment of these pensions for over four years without obtaining a solution to the problem. However, the Committee is bound to note that the CPC’s allegation does not come under wage protection in its strict sense, as defined in Article 1 of the Convention.

The Committee takes this opportunity to recall, as emphasized in paragraphs 355 and 398 of the abovementioned General Survey, that the underlying rationale of the protection of wages is to guarantee a regular payment allowing workers to organize their everyday life with a reasonable degree of certainty and security. In contrast, delays in the payment of wages and the accumulation of wage debts constitute a clear violation of the letter and spirit of the Convention and render most of its other provisions inapplicable. Furthermore, the full application of the principle of the payment of wages at regular intervals not only requires the regular payment of wages, but also compliance with the complementary obligation to settle swiftly and in full all outstanding payments upon the termination of the contract of employment. The Committee requests the Government to provide detailed information on the allegations referred to above and to take the necessary measures to ensure that workers’ wages, in both the public and private sectors, are paid in accordance with the provisions of Article 12 of the Convention.

[The Government is asked to report in detail in 2004.]