Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 355, Novembre 2009

1. 358. The Committee last examined this case at its November 2008 meeting at which time it submitted a report to the Governing Body [see 351st Report, paras 295–380, approved by the Governing Body at its 303rd meeting].
2. 359. The National Trade Union of Workers of ECOPETROL (SINCOPETROL) sent new allegations in a communication dated 18 May 2009. The Association of Managers and Technical Staff of the Colombian Petroleum Industry (ADECO) sent new allegations in a communication dated 11 June 2009. By communication dated 10 October 2009, the Workers’ Trade Union (USO) sent additional information.
3. 360. The Government sent its observations in communications dated 16 March and 30 April 2009.
4. 361. 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. Previous examination of the case

1. 362. In its previous examination of the case in November 2008, the Committee made the following recommendations [see 351st Report, para. 380]:
2. (a) Regarding the declaration as illegal of a strike called at ECOPETROL on 22 April 2004, the Committee once again urges the Government to take the necessary steps to amend the country’s legislation without delay in consultation with the social partners, (in particular section 430(h) of the Substantive Labour Code) so as to allow the exercise of the right to strike in the petroleum sector, with the prospect of establishing a minimum service following negotiations with the trade union organizations, the employer and the public authorities concerned. It requests the Government to keep it informed in this regard.
3. (b) The Committee once again urges the Government to take steps to stop the effects of the decision to dismiss 104 employees at ECOPETROL SA for taking part in the 2004 strike and to keep it informed of the outcome of the action for protection of their constitutional rights (tutela) brought by the workers before the Council of the Judicature.
4. (c) With regard to the dismissal of Quijano Lozada, and bearing in mind that his dismissal for participating in a work stoppage that had been declared illegal was based on legislation that does not conform to the principles of freedom of association, the Committee once again calls on the Government to take steps to have him reinstated and, if this is no longer possible, to ensure that he is fully compensated. The Committee also requests the Government to keep it informed of the outcome of the judicial appeals under way that were lodged by the three other trade union officials who were dismissed (Mejía Salgado, Suárez Amaya and José Ibarguén) and, in the case of Mr Ibarguén, to take steps to have him reinstated on a temporary basis, as ordered by the judicial authority, until his appeal has been ruled upon.
5. (d) With regard to the allegations presented by SINCOPETROL concerning the dismissal of union officials Ariel Corzo Díaz, Moisés Barón Cárdenas, Alexander Domínguez Vargas, Héctor Rojas Aguilar, Wilson Ferrer Díaz, Fredys Jesús Rueda Uribe, Fredys Elpidio Nieves Acevedo, Genincer Parada Torres, Braulio Mosquera Uribe, Jimmy Alexander Patiño Reyes, Jair Ricardo Chávez, Ramón Mantuano Urrutia, Germán, Luís Alvarino, Sergio Luís Peinado Barranco, Olga Lucía Amaya and Jaime Pachón Mejía, in connection with the work stoppage of 22 April 2004, the Committee requests the Government to carry out an investigation into these allegations without delay and, if it is found that these officials were in fact dismissed without their trade union immunity having been lifted, to take steps for their immediate reinstatement. The Committee requests the Government to keep it informed in this regard.
6. (e) With regard to Edwin Palma, who the USO states has been held in custody since 11 June 2004 on charges of conspiracy to commit offences and terrorism and who the Government has reported is in custody in the city of Barrancabermeja, the Committee requests that, on the basis of that information, the Government take steps without delay to have the Attorney-General report on Mr Palma’s whereabouts and legal status.
7. (f) With regard to the allegations presented by ADECO concerning ECOPETROL’s refusal to enter into collective bargaining, the Committee requests the Government to keep it informed of developments in the appeal lodged by the company against the decision handed down on 2 October 2007 in connection with the list of demands submitted by ADECO in May 2006.
8. (g) With regard to ADECO’s allegations that, by virtue of Decree No. 3164 of 2003, several categories of employees of ECOPETROL SA are excluded from the provisions of collective agreements, the Committee requests the Government to guarantee the right to collective bargaining of all ECOPETROL’s workers who, by virtue of the said decree, are not covered by the collective agreements that are in force in the company.
9. (h) The Committee requests the Government to carry out as a matter of urgency an investigation into the new allegations presented by ADECO to determine, on the basis of full information, whether ECOPETROL employees who are not unionized are offered individually or otherwise benefits, better working conditions or bonuses to encourage them to resign from their trade union, and to keep it informed in this regard.
10. (i) With regard to the new allegations presented by ADECO concerning the refusal of Chevron Petroleum Company to bargain collectively with it, the appointment of a Compulsory Arbitration Tribunal and the appeal to have the arbitral award revoked that was lodged with the Supreme Court of Justice by both the company and the trade union organization, the Committee observes that the Government has not sent its observations on the subject and requests it to do so without delay, particularly with respect to the outcome of the appeal before the Supreme Court of Justice.
11. B. New allegations
12. 363. In its communication of 18 May 2009, SINCOPETROL refers to the dismissal of the company workers who took part in a collective stoppage on 22 April 2004, confirms all the allegations presented to date and urges the Government to revoke the sanctions of destitution and general incapacity and the suspensions of the sanctioned workers and to respect the guarantee of trade union immunity.
13. 364. In its communication of 11 July 2008, ADECO once again refers to questions which remain outstanding. It also indicates that, with regard to the dispute with ECOPETROL, in May 2009 it presented a new list of claims, which the company refused, to bargain collectively, again convening an Arbitration Tribunal. Meanwhile, the company continues to encourage desertion of the trade union by offering unilateral benefits to workers who are not trade union members.
14. 365. As regards the arbitral award of 2007 based on the list of claims presented in 2006, the trade union alleges that the arbitration tribunal failed to mention several items included in the list of claims, and provided for trade union leave which is not sufficient for the performance of its tasks. Both the company and the trade union sought annulment of the award in the Supreme Court of Justice. In a judgement of 28 January 2008, the Court refused ADECO’s appeal, holding it to be unfounded. ADECO also refers to the dismissal of the trade union official Raúl Fernández Safra of ECOPETROL and Henry Víctor O’Meara of the BJ Services Company after lifting their trade union immunity.
15. 366. In a communication also signed by the enterprise, dated 1 October 2009, the USO sent a copy of the agreement signed by both parties dated 22 August 2009, relating to the reinstatement of 17 dismissed workers and the rehiring of 16 workers who had been dismissed in the context of the cessation of activity in 2004. The enterprise was also committed to making a financial contribution for the workers dismissed in 2004 and when there was the cessation of activity in 2002 who have not benefited from the reinstatement and rehiring.
16. C. The Government’s reply
17. 367. In its communications dated 16 March and 30 April 2009, the Government sends the following observations.
18. 368. With regard to paragraph (a) of the recommendations relating to the exercise of the right to strike in essential public services, the Government reiterates its position expressed on previous occasions, bearing in mind that the basis of the concept of the essential nature of public services is of a constitutional character. Considering the particular conditions in the country, the legal body authorized to interpret the Constitution is the Constitutional Court, which, after analysing what must be understood by essential public service, found that the public service provided by the state petrol company was an essential service, a decision which has erga omnes effects and are thus mandatory. The Government considers that the Committee on Freedom of Association, in defining essential public services, must take into account the spirit of the ILO Constitution concerning the particular conditions of countries. In this regard, it must be borne in mind that the arguments advanced whereby ECOPETROL is the only company which refines petrol in the country and that its paralysis could endanger security and even public health, due to the consequences that might arise if the country was deprived of fuel.
19. 369. As regards paragraph (b) of the recommendations concerning the situation of the 104 workers dismissed in the context of the strike in ECOPETROL, the Government reiterates the position it expressed previously. Given that ECOPETROL’s action was in accordance with domestic law, in particular Act No. 734 of 2002, that due process was respected in the case of each worker taking into account their status as public servants and not trade unionists, the Government considered on various occasions that there was no violation of Convention No. 87. In the present case, ECOPETROL was able to show that in the various disciplinary proceedings, the responsibility of each worker as a public servant was proved.
20. 370. Moreover, if the workers dismissed as a result of the disciplinary proceedings do not agree, they may appeal to the administrative litigation body which is competent to review decisions made in those disciplinary proceedings. As to the final result of the action for protection (tutela) brought before the Council for the Judicature, the Government indicates that it would be very important for the complainant trade union to state the date and name of the judge hearing the case for the purpose of requesting the respective information.
21. 371. As regards paragraph (c) of the recommendations concerning Mr Quijano, the Government states that according to the information provided by ECOPETROL, his contract of employment was terminated unilaterally on 29 November 2003, having exhausted the contractual procedure established for such matters, a decision which was separate from the collective stoppages on 22 and 27 May 2004, which were declared illegal by the Ministry of Social Protection. The Government adds that reinstatement or compensation requires a court order, in other words, a judicial process must have taken place in which a judgement which orders reinstatement or compensation has been handed down. In this respect, Mr Quijano exhausted all the judicial remedies. In this regard, both the Fifth Labour Court of the Cartagena Circuit in a judgement of 17 October 2003 and the Labour Chamber of the Cartagena District Court, in a judgement given on 10 February 2004, rejected Mr Quijano’s claims. The same fate befell the protection (tutela) sought by Mr Quijano at first instance and on appeal. The Government recalls that in accordance with the provisions of article 113 of the Constitution, the organs of the judiciary are independent, for which reason the Government respects and accepts the judgements handed down by the court. The Government does not interfere in decisions of the court.
22. 372. As regards the appeals of Mr Omar Mejía, Mr Germán Suárez and Mr José Ibarguén, the Government states the following:
23. – Omar Mejía Salgado. The Labour Chamber of the High Court of the Judicial District of Cartagena in a judgement of 29 August 2007 upheld the judgement of 10 December 2004 of the Eighth Labour Court of the Cartagena Circuit, finding that the grounds invoked for termination of the individual contract of employment were lawful. The Government attaches a copy of the judgement.
24. – Germán Suárez Amaya. The Fourth Labour Court of the Cartagena Circuit, in a judgement of 22 January 2008, decided to dismiss the plaintiff’s claims against ECOPETROL. The Government attaches a copy of the judgement.
25. – José Franquis Ibarguén. The Labour Chamber of the High Court of the Judicial District of Cartagena in a judgement of 31 October 2007, overturned the judgement of 10 October 2005 of the Sixth Labour Court of the Cartagena Circuit, and in consequence dismissed all the plaintiff’s claims against ECOPETROL SA. The Government attaches a copy of the judgement.
26. 373. As regards paragraph (d) of the recommendations concerning dismissal of workers, the Government indicates that the Ministry of Social Protection is not competent to judge the dismissal of workers, as that is a matter for the jurisdiction of the courts, which are competent to declare rights and issue judgements on the merits, as occurs in this case. The Government indicates that it would be helpful if the complainants would state in which court the respective actions were filed in order to investigate the status of each judicial proceeding. Despite the foregoing, the Government reiterates what it stated in the previous paragraph, given that ECOPETROL, in compliance with the provisions of Act No. 734 of 2002, followed the relevant disciplinary procedures, in which each worker was guaranteed due process, in accordance with the Constitution (article 29), which includes the principles of the competent judge, full respect for due legal process and the right of appeal.
27. 374. The Government once again reiterates that the conduct of the abovementioned disciplinary processes is a consequence of the decision in the arbitral award of 21 January 2005, issued by the ad hoc Voluntary Arbitration Tribunal constituted in accordance with the provisions of the National Government–ECOPETROL SA–USO Agreement signed on 26 May 2004, which in the “resolves” part, expressly in Nos 6 and 7, ordered the reinstatement of certain workers in order to apply the Single Disciplinary Code. Although in some cases the disciplinary proceedings resulted in the termination of individual contracts of employment, the disciplinary proceedings comply with the decision contained in the administrative act which decided on the respective disciplinary process by an impartial judge, on the basis of the evidence produced, a decision which must be respected by the company, thus it is not accepted that these cases constitute “dismissals”.
28. 375. The Act of 26 May, relating to the decision adopted by the ad hoc Arbitration Tribunal expressly stated: “it is clear that the decisions adopted by the ad hoc Arbitration Tribunal are binding and mandatory for the parties ...”, and thus ECOPETROL proceeded accordingly in compliance with the decision of the Tribunal in the terms contained in the arbitral award issued on 21 January 2005.
29. 376. With regard to paragraph (e) of the recommendations concerning the situation of Mr Edwin Palma, the Government states that an investigation was initiated into the alleged offence of terrorism and slander, Case No. 224870, in which an arrest warrant was issued on 29 June 2004, which was appealed by the defence. In a decision of 30 July 2004, the First Prosecutor’s Office to the High Court of Bucaramanga held that according to the evidence in the case there were no grounds for alleging that the conduct of Mr Edwin Palma constituted the offence of terrorism and the custody order was revoked. The Government adds that according to the information provided by ECOPETROL, Mr Edwin Palma is currently employed by the company, as analyst grade D7, in the Quality Control Department of the Barrancabermeja Refinery.
30. 377. With respect to paragraph (f) of the recommendations, as regards the final result of the appeal lodged by ECOPETROL against the arbitral award, the Government attaches a copy of the decision of 8 July 2008 in which the Supreme Court of Justice, Labour Division, decided:
31. ONE: TO ANNUL the following provisions in the “resolves” part:
32. Paragraph (a) of article 5.
33. The expression “paid” contained in paragraphs (d) and (e) of the same article 5 relating to leave of absence.
34. TWO: The award is declared binding with respect to the other contested matters.
35. THREE: The copies to which the “grounds” section refers should be transmitted by the secretary to the Sectional Council of the Judicature.
36. 378. The Government also indicates that it had previously reported that ADECO had submitted a document indicating its withdrawal of the appeals lodged against Resolution No. 000056 of 10 March 2006 (whereby the Ministry of Social Protection abstained from taking an administrative action against ECOPETROL for refusal to bargain collectively), as it considered that the situation related to the alleged refusal to bargain collectively had been superseded. Likewise, it informed the Committee concerning the start of the bargaining process with a view to the submission of the ECOPETROL trade unions’ list of claims, a process which ended with the signing of the collective agreement for a period of three years from 9 June 2006 until 8 June 2009. The Government adds that the ADECO annex forms part of the collective agreement to which the arbitral award of 2 October 2007 (annexed) refers. In consequence, there was no refusal by ECOPETROL to bargain collectively.
37. 379. With regard to paragraph (g) of the recommendations concerning the guarantee of the right of collective bargaining, the Government states that the Colombian State guarantees this right through the mechanism of amparo (judicial protection) and the various administrative and legal remedies. The Government requests the trade union to clarify the alleged facts, indicating specifically those cases in which the right of collective bargaining was violated, giving the names of the workers affected and the place where the events occurred, in order to establish whether administrative labour investigations were in progress or failing to initiate them.
38. 380. The Government adds that ECOPETROL SA does not have the authority to issue administrative acts such as those under Decree No. 3164 of 2003, and this act was issued by the President of the Republic and the Minister of Mines and Energy, who have the legal power, in accordance with article 187, paragraph 11, of the Constitution of Colombia and article 3 of Legislative Decree No. 284 of 1957.
39. 381. In this regard, given the objection of the workers to the issue of that act, they may appeal to the administrative litigation body. In fact, the Government indicates that according to the provisions of Decree No. 3164 of 2003, activities which are not on the list of those defined as specific and essential to the petroleum industry must be subject to a wage system agreed between the parties, taking into account market conditions but not less than the legal minimum. In addition, social benefits are recognized as those established in the Substantive Labour Code as supplemented and amended, provided that they do not conflict with the constitutional and labour rights of the workers.
40. 382. As regards paragraph (h) of the recommendations, the Government indicates that it would be most important to clarify the facts, indicating the specific cases so as to commence the respective administrative labour investigations. ECOPETROL, in its observations considers that its actions are within the constitutional and legal framework by which it is governed, which includes full respect for the exercise of the right of association, which is evident from the presence of four trade unions in the company, the Petroleum Industry Workers’ Trade Union (USO), the National Trade Union of Workers of Operating, Contracting and Subcontracting Companies Providing Services and Activities in Petroleum, Petrochemical and Similar Industries (SINDISPETROL), SINCOPETROL and ADECO.
41. 383. According to the Government, at no time did ECOPETROL commit acts or offer inducements to encourage people to leave a trade union. The Government recalls that it is part of the exercise of the fundamental right of freedom of association, which allows not only joining a trade union, but also leaving it whenever the worker sees fit, as has been pointed out on many occasions by the high courts, the authorized interpreters of the Colombian legal system. In that respect, the Honourable Constitutional Court, in its judgement C-606 of 1992, indicated:
42. ... the right of association, meaning the free and voluntary exercise by citizens to found or formally join permanent groups for specific purposes, also has a converse aspect: that no one may be forced, directly or indirectly to form part of a given association. If that were not the case, one could not speak of the right of association in a constitutional sense, since it is clearly a right of freedom, the guarantee of which is based on its voluntary nature.
43. 384. In the same vein, the same Court, in judgement T-952 of 2003, indicated:
44. ... The Court considers that freedom of association comprises: (i) the right of all workers, without any discrimination or distinction whatsoever, to gather together by forming permanent organizations which identify them as groups with common interests which they defend. This right implies freedom both to join and withdraw from such organizations … .
45. 385. According to the observations sent by ECOPETROL, the company has always respected rights of association, representation and trade union independence, indicating that it is not the company’s practice to prevent workers from forming associations or deciding freely to join or not join any of the existing trade unions, evidence of which is the existence of the complainant trade union and the guarantees granted to that organization, which are evidenced in the arbitral award of 2 October 2007, a copy of which is attached by the Government.
46. 386. As regards paragraph (i) of the recommendations, relating to the refusal to bargain collectively, the Office of Cooperation and International Regulations will look into the administrative labour investigation in the Chevron Petroleum Company, and once it receives a reply, will send its observations on the matter. Notwithstanding the foregoing, the observations sent by the company indicate the date of commencement of the collective bargaining of the list of claims and its completion, and the convening of the Arbitration Tribunal. Once the Arbitration Tribunal had been convened, it issued the arbitral award of 4 October 2007, which was immediately the subject of an appeal for annulment. This was decided by the Supreme Court of Justice on 29 April 2008, which only annulled the award in the part relating to PETROCAJAS, as it considered that the fund was a separate legal entity and thus governed by its own statutes and the law, and the arbitrators could not make provisions concerning its general functioning.

D. The Committee’s conclusions

1. 387. The Committee notes the communications of ADECO and SINCOPETROL and the Government’s observations concerning the outstanding matters. The Committee also notes the most recent communication dated 10 October 2009 sent by the USO and signed by ECOPETROL.
2. 388. With regard to point (a) of the Committee’s recommendations concerning the declaration as illegal of the strike called at ECOPETROL on 22 April 2004, the Committee notes once again that in its observations the Government states that according to the Constitutional Court the service operated by ECOPETROL was an essential service, and the national circumstances which led the Court to adopt that position should be taken into account. In this respect, the Committee had indicated on several occasions in the present case that the petroleum sector could not be considered to be an essential service in the strict sense of the term (i.e. those whose interruption would endanger the life, personal safety or health of the whole or part of the population) and thus the right to strike could not be prohibited. However, bearing in mind that it was a service of public utility of fundamental importance, the Committee also indicated that it was possible to establish a negotiated minimum service with the participation of the trade unions and the employers concerned. The Committee must again reiterate these considerations and accordingly again urge the Government, in consultation with the representatives of workers’ and employers’ organizations, to take steps without delay to send a proposal to the legislative authority with a view to amending the legislation (article 430(h) of the Substantive Labour Code) in order to define the conditions for the exercise of the right to strike in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service involving the participation of the trade unions, the employers and the public authorities concerned. The Committee requests the Government to keep it informed of all the relevant developments in the legislation.
3. 389. Under paragraph (b) of the recommendations concerning the dismissal of the 104 ECOPETROL workers for taking part in the stoppage, the Committee notes with satisfaction the agreement signed by the USO and ECOPETROL, sent jointly by both parties, whereby 17 workers were reinstated, 16 workers were rehired and the enterprise financially contributed with the trade union for the support of workers who were neither reinstated nor rehired.
4. 390. As regards paragraph (c) of the recommendations relating to the dismissal of trade union officials in the context of a stoppage in 2002, the Committee notes with interest the recent agreement entered into between the USO and ECOPETROL providing for a financial contribution by the enterprise and the trade union to benefit the workers.
5. 391. With respect to paragraph (d) of the recommendations which refers to the allegations made by SINCOPETROL concerning the dismissals of trade union officials, Messrs Ariel Corzo Díaz, Moisés Barón Cárdenas, Alexander Domínguez Vargas, Héctor Rojas Aguilar, Wilson Ferrer Díaz, Fredys Jesús Rueda Uribe, Fredys Elpidio Nieves Acevedo, Genincer Parada Torres, Braulio Mosquera Uribe, Jimmy Alexander Patiño Reyes, Jair Ricardo Chávez, Ramón Mantuano Urrutia, Germán Luis Alvarino, Sergio Luis Peinado Barranco, Olga Lucía Amaya and Jaime Pachón Mejía, also in the context of the stoppage of 22 April 2004, in disregard for trade union immunity, the Committee notes that in its communication of 18 May 2009 the trade union reaffirms the allegations made and requests the Government to set aside the dismissals and to respect the trade union immunity of the trade union officials, and the workers mentioned in the agreement signed by the USO and ECOPETROL to which reference is made. The Committee requests the Government and the trade union to indicate if these workers are indeed covered by the agreement.
6. 392. With regard to paragraph (e) of the recommendations concerning the situation of Mr Edwin Palma, the Committee notes that the Government states that in the investigation initiated into the alleged offence of terrorism and slander, Case No. 224870, in a decision of 30 July 2004, the First Prosecutor’s Office to the High Court of Bucaramanga held that according to the evidence in the case there were no grounds for alleging that the conduct of Mr Edwin Palma constituted the offence of terrorism and the custody order was revoked. The Committee further notes that according to the Government, Mr Edwin Palma is currently employed by ECOPETROL, as analyst grade D7, in the Quality Control Department of the Barrancabermeja Refinery.
7. 393. With regard to paragraph (f) of the recommendations relating to the allegations presented by ADECO concerning ECOPETROL’s refusal to bargain collectively and the appeal in the Supreme Court of Justice by the company for annulment of the arbitral award of 2 October 2007 concerning that matter, the Committee notes that the trade union indicates that it also appealed for annulment of the arbitral award in the Supreme Court of Justice, and that its appeal was refused. The trade union adds that the trade union leave granted to it was insufficient to carry out its activities and that it submitted a new list of claims in 2009, but the company again refuses to bargain collectively.
8. 394. The Committee notes that, for its part, the Government states that under a decision of 8 July 2008, the Labour Chamber of the Supreme Court of Justice decided to declare the enforceability (applicability) of the award in all the contested matters except one point relating to paid leave of absence. In turn, the Committee notes that according to the Government, ADECO withdrew the appeals it had initiated against Resolution No. 000056 of 10 March 2006 in which the Ministry of Social Protection decided not to impose sanctions against ECOPETROL for refusing to bargain collectively, considering that the situation relating to the alleged refusal to bargain collectively had been superseded. The Committee also notes the commencement of the collective bargaining process with a view to presenting a list of claims of the ECOPETROL trade unions, a process which ended with the signing of a collective agreement effective for three years from 9 June 2006 to 8 June 2009. The Government adds that the ADECO annex forms part of the collective agreement to which the arbitral award of 2 October 2007 (annexed) refers. In consequence, there was no refusal by ECOPETROL to bargain collectively.
9. 395. In this respect, the Committee notes, from a reading of the judgement of the Labour Chamber of the Supreme Court of Justice (attached by the Government) in which the appeal for annulment filed by the company against the arbitral award of 2 October 2007 is decided, that paragraph (a) of article 5 in the “resolves” part of the award “From 9 July 2007, it is understood that the trade union ADECO is party to the collective agreement 2006–09 in representation of its affiliated workers” was annulled. The Committee understands that as a consequence, the collective agreement does not apply to the trade union ADECO. In these circumstances, observing that according to the new allegations of ADECO, it presented a new list of claims in 2009, the Committee requests the Government to take the necessary steps to ensure that the company bargains collectively with the trade union in representation of its members, and expects that in the framework of that collective bargaining it will be possible to resolve the outstanding matters. The Committee requests the Government to keep it informed in this respect.
10. 396. As regards paragraph (g) of the recommendations relating to ADECO’s allegations that under Decree No. 3164 of 2003 several categories of ECOPETROL workers are excluded from the scope of the collective agreements, the Committee notes that under Decree No. 3164 of 2003, the wage scheme agreed by the parties must be applied to all activities which are not listed among those qualified as specific and essential to the petroleum industry, taking into account market conditions which must not be less than the legal minimum. In addition, the social benefits established in the Substantive Labour Code as amended and supplemented are recognized, provided that they do not conflict with the labour and constitutional rights of the workers.
11. 397. As regards paragraph (h) of the recommendations that, in ECOPETROL, benefits, better working conditions or bonuses are granted individually to non-unionized workers, encouraging them to give up trade union membership, the Committee notes that the Government states that: the company fully respects the exercise of the right to organize, which is evidenced precisely in the presence of four trade unions in the company; that this right allows not only membership of a trade union, but also leaving it when a worker sees fit; and that at no time has ECOPETROL committed acts or offered inducements to encourage workers to leave a trade union. The Committee notes that the Government requests the complainant organization to specify the facts and persons affected in order to carry out the relevant investigations. In this respect, the Committee invites the complainant organization to provide the Government with all the information in its possession concerning these allegations and requests the Government to take the necessary steps, as a matter of urgency, to carry out an independent investigation in order to determine on the basis of complete information whether the allegations are true. The Committee requests the Government to keep it informed in this respect.
12. 398. As regards paragraph (i) of the recommendations relating to the refusal of Chevron Petroleum Company to bargain collectively with the trade union, the appointment of a Compulsory Arbitration Tribunal and the appeal for annulment of the arbitral award lodged by the company and the trade union in the Supreme Court of Justice, the Government states that: (1) the Office of Cooperation and International Relations will look into the administrative labour investigation against the company and will send the pertinent observations; and (2) according to the observations sent by the company, the appeal for annulment of the arbitral award was decided on 29 April 2008 by the Supreme Court of Justice, Labour Chamber, which only annulled the award in the part relating to the pension fund because it considered that the arbitrators did not have the authority to establish provisions on its general functioning. The Committee notes this information and requests the Government to keep it informed of the administrative investigation into the company.
13. 399. The Committee notes the new allegations presented by ADECO relating to the dismissal of the trade union official Raúl Fernández Safra of ECOPETROL and Henry Víctor O’Meara of BJ Services Company after the court had lifted their trade union immunity. The Committee observes that the information provided by the trade union was not sufficient to be able to examine whether there was a violation of freedom of association and thus it will not continue examination of these allegations.