Rapport intérimaire - Rapport No. 337, Juin 2005

716. The National Union of Employees of AVIANCA (SINTRAVA), the Colombian Association of Civil Aviators (ACDAC) and the Single Confederation of Workers of Colombia (CUT) presented their complaint in communications dated 3, 4 and 7 June 2004 respectively. SINTRAVA and ACDAC sent new allegations in communications dated 1 December 2004 and 27 February 2005 respectively.

1. 717. The Government sent its observations in two communications dated 28 January 2005.
2. 718. 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. 719. The National Union of Employees of AVIANCA (SINTRAVA) and the Single Confederation of Workers of Colombia (CUT) state that, since 1992, AVIANCA has been using cooperatives to obtain services previously provided by employees at the company who were laid off. This resulted in a considerable reduction in union membership and, as a result of the intimidation by senior company managers, workers are afraid to join the union. The complainants indicate that, in May 2002, the management of AVIANCA formed a conglomerate comprising the companies AVIANCA, ACES and SAM under the name ALIANZA SUMMA, enabling them to broaden their range of services. However, AVIANCA from that moment onwards launched a voluntary retirement programme, further reducing the payroll. The complainants recall that, during the collective talks that took place between the company and SINTRAVA in October 2002, the parties decided to resolve the problems that had arisen and had been the subject of a previous complaint to the Committee on Freedom of Association [see Case No. 1925, 309th, 313th, 316th, 326th and 328th Reports] by concluding a consultation agreement, but this did not have the success hoped for.
2. 720. This is clear from the fact that, on 17 June 2003, the company sought approval from the Ministry of Social Protection for laying off 1,351 workers. In resolution 00823 of 24 March 2004, the Ministry of Social Protection authorized the collective dismissal of 350 workers. According to the complainants, these dismissals served as a cover for dismissing trade union members and replacing them with staff from cooperatives, employment exchanges and other employees from the same group who did not enjoy trade union rights. The complainants add that, in early 2004, ACES, which formed part of the conglomerate, declared bankruptcy and its employees were hired by AVIANCA. They displaced former AVIANCA workers who, unlike their ACES counterparts, had been covered by a collective agreement. According to the complainants, these dismissals took place despite the company’s claims to have made profits of US$22 million in 2004.
3. 721. The complainants add that, on 29 April 2004, the company deceived workers into accepting retirement on disadvantageous terms. Many of these workers were subsequently hired by cooperatives offering services to AVIANCA but on inferior terms and without any social benefits. The company also hired another 60 workers to replace the dismissed workers.
4. 722. On 17 April 2004, the Ministry of Social Protection approved the new internal regulations drawn up by AVIANCA without consulting the trade unions, in contravention of labour legislation.
5. 723. Lastly, the complainants denounce threats against workers and union officials in Cali by the United Self-Defence Forces of Colombia (AUC).
6. 724. In its communications of 4 June 2004 and 27 February 2005, the Colombian Association of Civil Aviators (ACDAC) states that the National Helicopter Company of Colombia (HELICOL S.A.) has violated the collective agreement in force with pilots, disregarding the acquired rights of active and retired workers, unilaterally changing daily working hours, refusing to update their salaries, suspending flight simulator training programmes, disregarding the grade scale established long ago under the collective agreement, and refusing to assign them to their normal workplaces in multinational companies. The complainant also alleges that the company is putting pressure on workers to leave the union and sign a (non-union) collective accord by means of intimidating measures, such as refusing to assign them to their normal workplaces or refusing to provide them with the training they need. The complainant states that 15 pilots have been dismissed; these include one with trade union immunity, another (Captain Leonardo Muñoz) with immunity by virtue of his role as negotiator, and a third who reported criminal contraventions within the company. The others were forced to accept a voluntary retirement plan, in violation of a written agreement between ACDAC and AVIANCA-SAM, which froze the pilots’ payroll and allowed retired pilots to continue working for two years. In addition, the complainant alleges that the company has failed to respect the trade union immunity enjoyed by Captain Juan Manuel Oliveros.
7. 725. The ACDAC adds that the aviation company AEROREPUBLICA S.A. refuses to bargain collectively and that a number of trade union officials have experienced anti-union acts. These include: the dismissal of captains Héctor Vargas Fernández, David Restrepo Montoya, Jaime Patiño, Andrés Luna and Carlos Andrés Gómez; sanctions against captains Julio Wilches, Hernán Alvarez, Felipe Palomares and Roberto Ballén, for exercising their right to freedom of expression and other rights.
8. B. The Government’s reply
9. 726. In its communications of 28 January 2005, the Government states that the complaint presented by SINTRAVA and CUT refers to restructuring undertaken at AVIANCA at the beginning of the 1990s, that is, more than ten years ago. The Government recalls the view expressed by the Committee on a number of occasions, to the effect that, even if no time limit has been established for examining complaints, it is very difficult or even impossible for a government to give a detailed response with regard to events that occurred long ago.
10. 727. The Government goes on to give its assessment of the situation in the aviation industry. It states that, at the global level, the industry for a number of years has been experiencing problems due to a number of factors, to the extent that the Governing Body itself decided at its 280th Session (March 2001) that it would be appropriate to hold a tripartite meeting to discuss restructuring in the civil aviation industry. For that purpose, the Office prepared a “reference document” (July 2001), which, following the events of 11 September of the same year, was supplemented by an “issues paper” for discussion at the Meeting on social and safety consequences of the crisis subsequent to 11 September 2001. The Government states that these documents will serve as a basis for attempts to explain the global crisis in the industry, a crisis that has also affected Colombian enterprises like AVIANCA, as will be shown later; this led to the adoption of measures which, understandably, were seen by some as a sign of a conspiracy against the trade union movement.
11. 728. In an age of globalization and internationalization, aviation is one of the sectors most affected. According to one of the ILO documents: “Three interlinked developments are combining to transform the structure of the industry: progressive liberalization of the product market, the drive to privatize or commercialize publicly owned carriers and other installations and services, and airline management’s accelerated pursuit of globalization, in terms of both product market and labour market.”
12. 729. In order to cope with the crisis, the airlines have adopted a number of different measures including concentration at the national level and outsourcing abroad. Similarly, the ILO document states that “… when airlines have to adopt cost-cutting measures because of declining operational results or restructuring, reductions in the number of employees are often high on the list. These reductions are mainly achieved either through natural attrition or through early retirement plans …”. The Government concludes that it is a fact of life, noted by the ILO itself, that the global aviation industry has been experiencing a serious crisis in recent years as a result of a number of different developments which have led to the adoption of various measures including mergers, staff cuts, reductions in the number of aircraft, route modifications, etc.
13. 730. In Latin America, the situation is difficult as it is everywhere else, as the ILO document makes clear in terms that leave no doubt as to the seriousness of the problems. The Government states that, with regard to small enterprises, like those of Latin American countries which do not have the economic, technological or financial resources of the world’s major airlines, the crisis has been worse and led to the loss, or at least the temporary paralysis, of a number of the region’s most important companies. By contrast with what has been happening in European or North American companies, they are also affected by exchange rate fluctuations which are on occasion sufficient in themselves to create crises.
14. 731. In the case of AVIANCA, a number of other factors come into play, quite apart from those already referred to in connection with the regional and global crisis in the aviation industry. These other factors, for obvious reasons, create a burden on the company and include the following.
15. 732. Operating costs have risen considerably. Leasing and maintenance costs are 40 per cent higher than the international average. Some 60 per cent of costs are calculated in foreign currency, and this leads to vulnerability due to currency devaluation.
16. 733. The losses recorded by the company are severe. In 2001, they amounted to 278 billion pesos, (US$111.2 million), and 204 billion pesos for 2002 (US$81.6 million). The company’s pension and financial liabilities account in part for the final profit and loss balance.
17. 734. At the time of requesting authorization from the Ministry for the layoffs, the company had not reached the point of operating equilibrium. In clearer terms, the company, at the end of the first quarter of 2004 (January to March), recorded operating profits of US$23 million, which are not net profits as the trade union claims. That amount does not include various repayments, depreciation, projected expenditure or operating expenses. Once these are factored in, the operating profits are reduced to US$18 million. The accumulated losses as of 31 December 2003 must then also be taken into account, amounting to US$480 million. Accumulated losses for the first quarter of 2004 thus amounted to US$462 million. The trade union passes over these figures in silence.
18. 735. Such figures, for a national company struggling to survive in the midst of fierce international competition and facing the same challenges as the world’s biggest aviation companies, could result in the company ceasing to be viable if it does not adopt measures to ensure its own survival. In general terms, the national market has contracted by 4.2 per cent, which means that Colombian airlines have had to sell 2.3 per cent more tickets to make up for the 4.2 per cent drop in dollar sales of domestic tickets. In addition, between February 2002 and February 2003, the ten principal domestic routes showed a decline in sales of 14 per cent, while the dollar price of fuel rose during the same period by 58 per cent.
19. 736. The company realized that it had to adopt certain measures to remain in the market. These included: renegotiating the terms of major contracts and debts; redrawing its routes; restructuring its fleet in line with new itineraries; and general restructuring of the organization (size, number of employees and facilities).
20. 737. As regards the renegotiation of major contracts and debts, the Government states that in 2001 and 2003, AVIANCA had to cancel ten contracts with one company that supplied temporary staff, as a result of which the company lost the services of some 202 people. A total of 508 contracts with third parties were terminated; these concerned such services as consultancy, transport, maintenance of ground facilities, surveillance and telephone maintenance.
21. 738. As regards redrawing the route network, the Government states that the exercise in 2003 reduced the total number of passenger trips by some 13 per cent compared to 2002 and reduced the number of flights by 18 per cent.
22. 739. The Government states that AVIANCA sought the approval of the Atlántico Regional Director of the Ministry of Social Protection for 1,351 dismissals. The company subsequently modified its request and reduced the number of requested dismissals by 30 per cent, to 1,084. The Ministry of Social Protection authorized the dismissal of only 350 workers. Of that number, only 46 were actually dismissed, and 102 accepted a conciliation settlement. The Government emphasized that, according to the company, no trade union official was affected by the collective dismissals.
23. 740. The Government states that Colombian legislation prohibits layoffs of workers by employers without prior authorization from the Ministry of Social Protection, and that such layoffs are permitted only for certain specific reasons. Similarly, the Government recalls that the country’s highest courts have repeatedly indicated that such dismissals must not be a cover for anti-union discrimination, thus concurring with the principles established by the Committee in this matter. At the same time, actions by the administrative authorities are liable to investigation by the State’s own supervisory authorities and their decisions can be challenged before the labour courts. These have a wide range of appeal mechanisms at their disposal to ensure that due process of law is respected.
24. 741. According to section 67 of Act No. 50 of 1990: “If any employer considers it necessary to carry out collective dismissals of workers, or to terminate employment contracts for reasons other than those indicated in section 5(1)(d) of this Act and in section 7 of Legislative Decree No. 2351 of 1965, he or she shall be required to obtain authorization from the Ministry of Labour and Social Security, explaining the reasons and providing supporting documents as appropriate, and shall also be required to inform the workers of the request in writing …” Paragraph 3 of the same section states that: “The authorization referred to in paragraph 1 of this section may be given in cases where the employer is obliged to modernize processes, equipment or systems in order to increase productivity or product quality, to eliminate processes, equipment or systems and production units, or if the latter are obsolete or inefficient or result in systematic losses, or create a competitive disadvantage in relation to similar enterprises or products.”
25. 742. The Supreme Court of Justice in its rulings has established that the authorization (given by the Ministry for the dismissals) does not suspend trade union immunity or provide exemption from paying appropriate compensation. At the same time, the Court has acknowledged that the purpose of requiring the employer to communicate to workers the request for authorization is “… to ensure their participation in the administrative process so that they can avail themselves of their right to a defence …”. An attentive reading of the provision and the jurisprudence in question clearly shows that it is by definition not possible for an employer to use the authorization mechanism as a cover for anti-union discrimination. The employer is required to provide cogent reasons for seeking the authorization; those reasons cannot be other than those set out in the relevant legislation; and workers have an opportunity to participate in the process in order to enforce their right to defence and, if they consider it to be the case, to expose any attempt at anti-union discrimination which the request may conceal.
26. 743. Furthermore, the law does not authorize collective dismissals that pursue or conceal anti-union objectives. According to section 354 of the Substantive Labour Code, as amended by section 39 of Act No. 50 of 1990: “1. Under the terms of section 292 of the Penal Code, it shall be prohibited for any person to attempt to restrict the right of freedom of association; 2. Any person who does so in any manner shall be required to pay a fine equivalent to between five and ten times the highest minimum monthly wage; the fine shall be imposed by the competent labour official, without prejudice to any criminal penalties that may also apply.”
27. 744. The Government emphasizes that the administrative enactment by which the Ministry authorized the workers’ retirement was not challenged by the workers in the relevant jurisdiction. In conclusion, the Government states that the factors which prompted the company to adopt a series of survival measures were entirely without any anti-union motives and bore no relation at all to the trade union’s activities. At the same time, in view of the fact that the adjustment process at the company did not lead to the dismissal of trade union officials, and that those measures, as already indicated, were diverse in nature, entirely unrelated to freedom of association, and resulted from a crisis in the aviation industry at the global, regional and local levels, the Government recalls the Committee’s own words to the effect that it was established to carry out preliminary examination of complaints of violations of trade union rights, and has indicated, on more than one occasion, that it is not for the Committee to express an opinion on the termination of employment contracts in connection with dismissals unless these involve anti-union discrimination, which was not the case here.
28. 745. As regards the allegations presented by ACDAC, the Government states that the allegations made in the complaint are vague and do not indicate clearly the specific facts which supposedly constitute violations of freedom of association. It adds that the complaint also covers a number of issues outside the Committee’s remit, including the suspension of flight simulator training programmes, increased working hours, salary discrepancies and failure to bring salaries up to date.
29. 746. As regards the refusal to bring salaries up to date, the Government indicates that this was in fact done through the collective agreement and that, in the present case, the unionized workers chose not to formally denounce the agreement in question. Under the terms of legislation, formal denunciation of the agreement by the workers is the sole means of initiating a collective dispute with a view to amending the agreement. If the collective agreement is not denounced it cannot be modified and is automatically extended, as in the present case. It follows from what has been stated that the conditions set out in individual employment contracts are dependent on the terms of the relevant collective labour agreement in force. If the trade union or the employer decides not to denounce the collective agreement, it is not possible to modify the terms of individual contracts of employment.
30. 747. The Government goes on to state that ACDAC denounced the collective agreement in respect of the section concerning salaries. After the direct settlement phase ended without an agreement, the Ministry of Social Protection convened the arbitration tribunal. However, HELICOL S.A. appealed successfully against that decision, which was rescinded.
31. 748. With regard to allegations of violations of the existing collective agreement, disregarding the acquired rights of active, retired and deceased aviation staff, the Government states again that the claim is vague and imprecise. However, it states that administrative investigations into HELICOL S.A. have been carried out, and the company was fined, through resolution 003702 of 28 September 2004, the equivalent of 30 times the applicable minimum monthly salary (10,740,000 pesos). The Government states that appeals have been lodged against the fine and these are still pending. It adds that, in resolution 003794 of 4 October 2004, the parties were ordered within five working days to initiate the direct settlement phase of an ACDAC legal action in connection with the company’s refusal to negotiate a list of claims. The appeals are still pending.
32. 749. With regard to the violation of rights in connection with the grade scale established under the collective agreement, the Government states that the vagueness and imprecise nature of the claim prevents it from expressing a view on the matter.
33. 750. As regards the allegations regarding the imposition, on pain of dismissal, of a (non-union) collective accord, the Government states that national law allows the union and non-union agreements to coexist, an exception being provided for under section 481 of the Substantive Labour Code, according to which, if more than one-third of workers at a given enterprise belong to the union or unions, the enterprise cannot conclude (non-union) collective accords or extend any that are already in force. The employer’s freedom to conclude non-union collective accords where these will coexist with union collective agreements is subject to certain constraints arising from a range of constitutional and legal rights, values and principles. Colombian law expressly recognizes the right not to join a trade union, and workers who choose not to do so are able to conclude a non-union collective accord. The Government recalls the Committee’s stated view, based on the opinion of the Conference Committee on Industrial Relations in 1949, that legislation providing for a right not to join or belong to a trade union does not in itself constitute a violation of Conventions Nos. 87 and 98. Nevertheless, legislation does not allow for non-union collective accords where more than one-third of a company’s employees belong to a union, which is not the case here. National laws and regulations allowing workers to choose not to join a union and to conclude non-union collective accords have not been commented on by the ILO’s supervisory bodies.
34. 751. As regards the dismissal of 15 pilots, one of whom enjoyed trade union immunity, another was protected by his status as a negotiator, a third because of having reported contraventions of air safety regulations, while the others were forced to accept “voluntary retirement”, the Government states that ACDAC invoked the constitutional protection (amparo) procedure but its claim was rejected in a ruling of 25 August 2004 by Municipal Civil Court No. 37 on the grounds that no violation of fundamental rights had been proven. The Government considers that the dismissals, which were claimed to be an attack against the trade union, were in fact based on the concept of an employer’s freedom to terminate a contract of employment without a specific reason, provided that compensation is paid. Furthermore, with regard to the appointment of the ACDAC negotiator, this was nullified by provisions in the existing collective agreement. The Government states that the union did not appeal against the ruling, which was thus confirmed, and the workers concerned can bring an action for reinstatement before the labour courts.
35. 752. As regards the allegations that the company has been disregarding an agreement between ACDAC and AVIANCA-SAM, which froze the pilots’ payroll and allowed retired pilots to continue working for a period of two years, the Government indicates that the agreement in question concerns only AVIANCA-SAM and refers to specified classes of aircraft, none of which is operated by HELICOL S.A.
36. 753. With regard to the allegations that the company did not assign ACDAC workers to their normal workplaces in multinationals to which HELICOL S.A. supplies services, the Government indicates that the complainants do not specify the particular circumstances in which it is claimed that pilots belonging to ACDAC were prevented from exercising their profession as pilots. The Government explains that neither Conventions Nos. 87 and 98, nor the principles derived from them by the ILO’s supervisory bodies, consider as a violation of freedom of association the prerogative granted to employers by any legislation in the world to determine the normal course of a company’s operations, including the schedules and workplaces of its workers. Except in the case of a “deliberate policy of frequent transfers of persons holding trade union office” which could “seriously harm the efficiency of trade union activities”, the employer may exercise the right known in law as ius variandi without violating the principle of freedom of association.
37. 754. In the present case, the Government indicates that, according to the company’s explanation of events, operations to fulfil contracts with the BP Exploration Company Colombia Limited and with Occidental of Colombia require pilots to be qualified to fly by instruments only, and that of the five HELICOL S.A. pilots affiliated to ACDAC, only three are so qualified and included on the rosters established under these contracts. According to the company, one aircraft was also virtually grounded between 15 December 2003 and 23 August 2004, for commercial reasons, which meant that some pilots were put on flight rosters only as and when flights were scheduled, but this had no effect on the prompt payment of their salaries.

C. The Committee’s conclusions

1. 755. The Committee notes that the case concerns the following: (1) the allegations made by the National Union of Employees of AVIANCA (SINTRAVA) and the Single Confederation of Workers of Colombia (CUT) concerning the collective dismissals of workers affiliated to SINTRAVA and their replacement with workers in cooperatives or in other companies of the AVIANCA-SAM group without trade union rights; the adoption of new internal regulations without consulting the trade union, and threats against members and officials in Cali by the United Self-Defence Forces of Colombia (AUC); and (2) the allegations made by the Colombian Association of Civil Aviators (ACDAC) concerning violation by HELICOL S.A. of the collective agreement in force; pressure on workers to resign from the union and sign a non-union collective accord; dismissal of 15 HELICOL S.A. pilots, one of whom had trade union immunity, another (Captain Leonardo Muñoz) protection as negotiator, while a third had reported criminal contraventions within the company, while the rest were forced to accept voluntary retirement in violation of an agreement concluded with AVIANCA-SAM which froze the pilots’ payroll and allowed retired pilots to continue working for a period of two years; and the refusal by the company AEROREPUBLICA S.A. to bargain collectively, and dismissals and sanctions applied against trade union officials for exercising their rights.
2. 756. The Committee notes that the trade union organization SINTRAVA and the CUT also refer to certain allegations which have already been examined in Case No. 1925.
3. 757. As regards the collective dismissal of workers affiliated to SINTRAVA and their replacement by workers in cooperatives or other companies in the AVIANCA-SAM group without trade union rights, the Committee notes that the Government refers in general terms to the current crisis in aviation enterprises, and in particular to the economic difficulties faced by AVIANCA (the Government supplies a company report on this subject). The Committee notes that, according to the Government, the company sought authorization to dismiss some 1,084 workers as a result of the crisis and without any anti-union motivation, but the Ministry of Social Protection authorized only 350 dismissals, of which in the end only 46 were actually confirmed, the other 102 workers agreeing to a conciliation settlement. The Committee notes that, according to the Government, no trade union official was dismissed and the trade unions did not bring any legal action for reinstatement of the dismissed workers. The Committee also notes, however, that the Government makes no reference to the replacement of workers who enjoyed trade union rights and were laid off collectively, by workers without union rights employed by other companies in the same group or by cooperatives. The Committee recalls in general terms that, under the terms of Article 2 of Convention No. 87, which has been ratified by Colombia, workers and employers, without distinction whatsoever, have the right to establish and join organizations of their own choosing. At the same time, recalling its recent conclusions in a different case concerning cooperatives in Colombia in the light of the Promotion of Cooperatives Recommendation, 2002 (No. 193), which calls on governments to ensure that cooperatives are not set up or used for non-compliance with labour law or used to establish disguised employment relationships, the Committee recalls its previous statement that “although […] cooperatives represent one particular way of organizing production methods, the Committee cannot cease consideration of the special situation of workers with regard to cooperatives, in particular as concerns the protection of their labour interests […] and considers that such workers should enjoy the right to join or form trade unions in order to defend those interests” [see 336th Report, Case No. 2239, para. 353]. The Committee consequently requests the Government to carry out an impartial investigation in order to ascertain whether in the AVIANCA enterprise the dismissed workers were in fact replaced by others from cooperatives, which were in fact disguised employment relationships, or other companies in the AVIANCA-SAM group to do the same work; whether these new workers have trade union rights and, if that is not the case, to take steps to ensure full respect for freedom of association in line with these principles. The Committee requests the Government to keep it informed in this regard.
4. 758. As regards the allegations of threats against trade union members and officials in Cali by the United Self-Defence Forces of Colombia (AUC), the Committee regrets that the Government has not sent its observations on the matter and requests that it carry out an independent investigation into the allegations and, if they are found to be true, to immediately take steps to end these threats.
5. 759. As for the adoption by the company of new internal regulations without consulting the trade union, the Committee regrets that the Government has not sent its observations on the matter and requests that it do so without delay.
6. 760. As regards the allegations made by ACDAC concerning the violation by HELICOL S.A. of the collective agreement in respect of acquired rights, unilateral changes to daily working hours, failure to bring salaries up to date, suspension of flight simulator training, and infringements of the established grade scale, the Committee takes note of the Government’s observations to the effect that various questions raised by the complainant, such as those relating to suspension of flight simulator training, increased daily working hours, and salary increases, do not come within the Committee’s remit. In this regard, however, the Committee notes that, while such matters do not in themselves come within its remit, they are covered by a collective agreement between HELICOL S.A. and ACDAC. The Committee therefore considers that the issue concerns failure to honour obligations arising from a collective agreement, and recalls that collective agreements should bind the signatories thereto, and that mutual respect for the commitment undertaken in the collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see 325th Report, Case No. 2068 (Colombia), para. 329; and 329th Report, Case No. 2097 (Colombia), para. 473]. Under these circumstances, the Committee requests the Government to take the necessary steps to ensure full compliance with the collective agreement in force.
7. 761. As regards the matter of updating salaries, the Committee notes that the Government, in the same reply, states that this was in fact done through collective agreement and that the complainant did not denounce the collective agreement in respect of this point, but in the following paragraph states that the complainant denounced the collective agreement and, given the failure to reach agreement in the direct settlement phase, the matter was referred to an arbitration tribunal convened by the Ministry of Social Protection, although that decision was rescinded by the judicial authority at the request of HELICOL S.A. The Committee requests the Government and the complainant to clarify whether or not the collective agreement was denounced, whether an arbitration tribunal was actually appointed and, if so, whether the appointment was rescinded and whether the complainant appealed against that decision.
8. 762. As regards the allegations concerning pressure on workers to force them to resign from the union and sign a non-union collective accord, by not assigning them to their normal workplaces and not giving them the technical training they needed, the Committee notes the Government’s statements to the effect that the companies for which HELICOL S.A. provides services require flight crews to be qualified to fly by instruments, and that, of the five HELICOL S.A. pilots belonging to ACDAC, only three were so qualified and placed on flight rosters for the contracts in question; and that national law allows a collective agreement and a non-union collective accord to coexist, and allows workers not to join a trade union, so that employers are allowed to conclude collective agreements with non-union workers. The Committee notes the Government’s additional statements to the effect that, where more than one-third of a company’s workforce belong to a trade union, legislation does not permit collective accords between the company and the non-union workers. With regard to non-union collective accords, the Committee recalls that, in its examination of similar allegations in other complaints against the Government of Colombia, it has emphasized that “the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98 and that collective accords should not be used to undermine the position of the trade unions” [see 336th Report, Case No. 2239, para. 356; and 325th Report, Case No. 2068]. The Committee emphasizes that direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 786]. Under these circumstances, the Committee requests the Government to takes the necessary steps to ensure that the HELICOL S.A. employees are not intimidated into entering into a collective accord against their will which would require them to leave their trade union.
9. 763. As regards the allegations regarding the dismissal of 15 HELICOL S.A. pilots, one of whom had trade union immunity, another enjoyed protection from dismissal as a negotiator (Captain Leonardo Muñoz), a third reported irregularities within the company, while the others were forced to accept voluntary retirement in contravention of a collective agreement with AVIANCA-SAM which froze the pilots’ payroll and allowed retired pilots to continue working for a further two years, the Committee notes that two separate issues are raised here: on the one hand, the collective dismissal of pilots in contravention of an agreement concluded with AVIANCA-SAM; on the other, the dismissal, in the context of collective layoffs, of one pilot with trade union immunity, and of another with protection by virtue of his status as a negotiator.
10. 764. As regards non-compliance with the agreement, the Committee notes that the text of the agreement itself clearly indicates what the Government has already said, that it involved only AVIANCA-SAM, since the different classes of aircraft mentioned in it are not flown by HELICOL S.A. pilots.
11. 765. As regards the dismissals, the Committee notes the Government’s statements in general terms to the effect that these were justified by the freedom of an employer to terminate a contract of employment without any specific reason, provided that compensation is paid, that the appeals against these dismissals were rejected by the judicial authorities, that the appointment of the ACDAC negotiator did not comply with the terms of the collective agreement in force, and that the trade union lodged no further appeals against the dismissals.
12. 766. The Committee notes, however, that, as regards in particular the dismissal of the trade union official, Colombian legislation requires judicial authorization (section 405 of the Substantive Labour Code). The Committee requests the Government to inform it whether authorization was sought before the dismissal.
13. 767. As regards the appointment of a negotiator in contravention of the collective agreement, the Committee requests the Government to inform it whether the irregularity of the appointment was established by the judicial authority and to send a copy of the ruling in question. The Committee requests the Government to inform it with regard to any legal proceedings in connection with the dismissal of the 15 pilots.
14. 768. As regards the failure to respect the trade union immunity of Captain Juan Manuel Oliveros, the Committee notes that the Government has not sent its observations on the matter. The Committee nevertheless considers the allegation to be formulated in vague terms, and accordingly requests the complainant to specify how the official’s trade union immunity has been violated.
15. 769. As regards the allegations regarding the refusal of AEROREPUBLICA S.A. to bargain collectively and the dismissal and sanctions against trade union officials for exercising their rights, the Committee regrets that the Government has not sent its observations and requests that it carry out and impartial investigation and send its observations without delay.