Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 373, Octubre 2014

1. 195. The complaint is contained in a communication dated 15 November 2012, submitted by the Single Confederation of Workers of Colombia (CUT) and the General and Related Services Workers’ Trade Union (SINTRASEGA).
2. 196. The Government sent its observations in communications dated 6 and 25 March 2014.
3. 197. 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. 198. The complainants allege that the freedom of association of the female workers of the general cleaning service and general services of the district of Bogota is being violated by service providers in that district. In this regard, the complainants indicate that: (i) in 2010 and 2011, the Office of the Mayor of Bogota signed a service contract with the enterprise Internacional de Negocios SA for cleaning services in public schools, for which the enterprise hired 3,884 workers; (ii) in September 2011, the enterprise started to fall behind with the payment of wages and the Secretariat for Education of the Office of the Mayor of Bogota (SED), was accordingly requested to adopt measures to oblige the enterprise to comply with its labour obligations; (iii) on 24 November 2011, cleaning and general service workers mainly attached to schools in the Usme, Ciudad Bolívar and Sumapaz district divisions created the National Union of Workers of the enterprise Internacional de Negocios SA; (iv) the workers in Usme launched demonstrations on 29 December 2011 due to the non-payment of their wages, which triggered acts of stigmatization against union members; (v) at the end of January 2012, the enterprise Internacional de Negocios SA requested the district Secretariat for Education to transfer the contract, which was awarded on 7 February 2012, for the one part, to the joint venture Asepclean and, for the other, to the joint venture Mr Clean SA and Mantenimiento Aseo Servicios SA; (vi) the aforementioned enterprises did not renew the contracts of pregnant women or of workers suffering from some form of work-related disability, which prompted the CUT to file a complaint before the Ministry of Labour on 30 January 2012; (vii) on 9 February 2012, the cleaning workers created the new occupation-based union, SINTRASEGA; (viii) as of February 2012, the President of SINTRASEGA, Ms Yamila Guerrero García, and the General Secretary of the organization ceased to be contracted by Internacional de Negocios SA and by the enterprises to which the service contract had been transferred. The President of SINTRASEGA was also obliged to abandon her work monitoring the employment status of the workers in the sector, which she carried out together with a lawyer of the Colombian Commission of Jurists, after being banned from entering the workplaces of the workers of the aforementioned enterprises and joint ventures; (ix) since then, the exercise of freedom of association in those enterprises and joint ventures continues to be restricted by acts of harassment and anti-union persecution, including threats to dismiss workers who meet with union officials; (x) in March and May 2012, SINTRASEGA, with the support of the CUT, reported the aforementioned violations before the Ministry of Labour, the Office of the Mayor of Bogota and the Counsel-General’s Office, but the situation was not resolved owing to a lack of political and judicial will; and (xi) owing to a general fear of anti-union reprisals, SINTRASEGA has not claimed the deduction of union fees, and the majority of its 500 members prefer to keep their membership secret.
2. 199. In the light of the above, the complainants allege the following violations of ILO Conventions Nos 87 and 98: (i) major restrictions on the communication of union information and the freedom of access by union officials to the aforementioned enterprises, which hampers the right of the workers of the general cleaning service and general services of the district of Bogota to become union members, in the absence of appropriate mechanisms to denounce such irregularities; (ii) anti-union acts against SINTRASEGA officials and members, in particular the non-renewal of contracts in the absence of effective remedies to address such situations in so far as labour inspectors are not competent to guarantee workers’ rights and make them effective, and (iii) the generalized use of public works contracts over very short time periods (three, six or nine months), which weakens the freedom of association of cleaning service workers due to fear that their contracts will not be renewed.

B. The Government’s reply

1. 200. In a communication of 6 March 2014, the Government transmits the reply of the joint venture Mr Clean SA and Mantenimiento Aseo Servicios SA, which indicates that: (i) it was awarded the transfer of the cleaning contracts for the district divisions of Usme and Ciudad Bolívar by the Secretariat for Education of the district of Bogota on 7 February 2012, once the enterprise Internacional de Negocios SA was no longer able to provide the service; (ii) under the terms of that transfer, the Secretariat for Education accepts no responsibility for the workers assigned to provide those services, whereby the service provider maintains full independence in that regard; (iii) the previous service provider continued to owe all outstanding payments for work up to the date of the transfer of the contract; (iv) following the transfer, 98 per cent of staff were kept on; (v) the few cases of non-renewal were due to failure to pass the physical examination on recruitment and were in no case due to the workers’ membership of a trade union organization, the existence of which was not known to the enterprise during the recruitment process; (vi) tutela (protection) proceedings filed by some workers have resulted in a ruling against the previous service provider; and (vii) there are no grounds for the allegations of discrimination.
2. 201. On the basis of the information provided by the aforementioned enterprise, the Government indicates that: (i) the Ministry of Labour ordered Internacional de Negocios SA to comply with the legal provisions concerning the termination of the contracts of workers with disabilities; (ii) progress is being made on the administrative labour proceedings filed in January 2013 against the aforementioned enterprise and the SED, and the relevant information will be sent to the Committee once the required inquiries have been carried out; (iii) however, as of 10 December 2012, SINTRASEGA had filed no administrative labour proceedings against the joint ventures Asepclean, and Mr Clean SA and Mantenimiento Aseo Servicios SA; and (iv) the complainants have not provided evidence of anti-union acts during the transfer of workers to the new service providers and the Committee on Freedom of Association is therefore not competent to examine this case.
3. 202. In a communication of 25 March 2014, the Government transmits a reply from the SED, which indicates that: (i) the alleged violations of the principles of freedom of association concern the actions of the service providers and not those of the Office of the Mayor itself; (ii) the enterprise Internacional de Negocios SA was sanctioned for its failure to comply with the labour regulations, as reported in the CUT’s complaint; (iii) the service providers’ obligation to enter into employment relationships with its workers does not extend beyond the end of the service contract; (iv) the SED was witness to the agreements signed by the union officials and the enterprise Internacional de Negocios SA, which included the payment of outstanding wages and the commitment to refrain from reprisals against the workers who lodged complaints; and (v) the SED will be vigilant against acts of interference to undermine the freedom of association of workers who have signed contracts with the service providers.

C. The Committee’s conclusions

1. 203. The Committee observes that this case concerns allegations of violations of freedom of association in the general cleaning services and general services of the district of Bogota by service providers. The alleged violations consist, firstly, of a series of anti-union acts which include major restrictions on the communication of union information and on freedom of access by union officials to the aforementioned enterprises, and the discriminatory non-renewal of the contracts of SINTRASEGA officials, in the absence of appropriate and effective mechanisms to put an end to those anti-union acts, and secondly, the generalized use of short-term contracts, preventing the free exercise of freedom of association by the cleaning service workers due to fear that their contracts will not be renewed.
2. 204. The Committee takes note of the replies sent by the Government, the SED and the joint venture Mr Clean SA and Mantenimiento Aseo Servicios SA, which indicates that the public authorities have taken measures to address failures to comply with labour obligations (payment of wages) by the initial service provider (Internacional de Negocios SA), and that there is no evidence of anti-union acts by the various enterprises in relation to the implementation of the service contract signed by the SED.
3. 205. Regarding the allegations of a series of anti-union acts by the service providers of the SED, especially those triggered by the creation of SINTRASEGA in February 2012 and the transfer of the cleaning contract to new companies, the Committee takes note of the Government’s reply, which indicates that the complainants have not provided evidence of anti-union acts during the transfer of workers to the new service providers and that no administrative labour proceedings have been filed by SINTRASEGA against the enterprises which were awarded the cleaning service contract, the only administrative labour proceedings currently pending being those brought against the initial enterprise and the SED. In this regard, the Committee notes that on 5 and 8 March 2012, the CUT and SINTRASEGA submitted two identical communications to the Ministry of Labour and to the Office of the Mayor of Bogota reporting, among other things, acts of anti-union persecution by the aforementioned service providers, including the discriminatory dismissal of the President of SINTRASEGA, Ms Yamila Guerrero García, and of two other union officials and requesting immediate intervention by the public authorities to put an end to the violation of freedom of association.
4. 206. The Committee observes that in its reply, the Government does not mention the measures taken in relation to the two aforementioned complaints of March 2012, and it does not indicate whether the administrative labour proceedings that are pending in relation to the enterprise Internacional de Negocios SA and the SED include the complaints regarding the violation of freedom of association. Recalling that in cases of alleged anti-union discrimination the competent authorities should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 835], the Committee requests the Government to ensure that all anti-union acts reported in this complaint are followed up without delay by independent inquiries. The Committee requests the Government to keep it informed of the aforementioned inquiries and of their outcomes.
5. 207. Regarding the specific allegations of discriminatory non-renewal of the contracts of various SINTRASEGA officials, and in particular of its President, Ms Yamila Guerrero García following the transfer of the cleaning service contract, recalling that the non renewal of a contract for anti-union reasons constitutes a prejudicial act within the meaning of Article 1 of Convention No. 98 [see Digest, op. cit., para. 785], the Committee requests the Government to ensure that the inquiries mentioned in the previous paragraph address the contractual situation of Ms Guerrero García. Recalling the general principle that if reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals [see Digest, op. cit., para. 845], the Committee requests the Government to ensure that, in the event of a finding that her contract was not renewed for anti-union reasons, a new contract is offered to her or, if this is not possible, that she is paid adequate compensation which would represent a sufficiently dissuasive sanction.
6. 208. Regarding the allegations concerning the generalized use of short-term contracts in the general cleaning services and general services of the district of Bogota, preventing the free exercise of freedom of association in that service, the Committee recalls the principle according to which, while it does not have the mandate and will not pronounce itself with respect to the advisability of recourse to fixed-term or indefinite contracts, the Committee wishes to highlight that, in certain circumstances, the employment of workers with successively renewed fixed-term contracts for several years may affect the exercise of trade union rights [see 368th Report, Case No. 2884 (Chile), para. 213]. The Committee requests the Government to take this principle into consideration in its inquiries and, in the event of finding the alleged dissuasive effect, if necessary, to take appropriate measures, in consultation with the social partners concerned, to ensure that the workers in the sector are able to exercise their trade union rights freely. The Committee requests the Government to keep it informed in this regard.