Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 356, Mars 2010

1. 615. The Committee last examined this case at its June 2009 meeting [see 354th Report, approved by the Governing Body at its 305th Session, paras 590–628].
2. 616. The Government sent its observations in a communication dated 1 October 2009.
3. 617. 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. Previous examination of the case

1. 618. In its previous meeting, the Committee made the following recommendations [see 354th Report, para. 628]:
   • (a) The Committee requests the Government to keep it informed of developments in the investigations currently before the Territorial Directorate of Cundinamarca with regard to:
   • (i) the allegations relating to the pressure put on workers at the BBVA and Granahorrar in the context of the merger between the two entities in 2006 to sign a collective accord despite the existence of a collective agreement which was still valid until 31 December 2007 and non-compliance with various provisions of this agreement;
   • (ii) the allegations concerning the harassment of trade union leaders; in this respect, the Committee expresses the hope that the aforementioned investigations will cover all the allegations of harassment brought by the trade unions, including dismissals (Mr José Murillo and Mr Henry Morantes) and the pressure put on some workers to leave the union (Ms Nidia Patricia Beltrán, Mr Dairo Cortés, Ms Luz Helena Vargas, Ms Gloria María Carvajal and Ms Marina Guzmán).
   • (b) With regard to the allegations concerning the mass dismissal of workers by means of conciliation agreements in order to replace them with subcontracted workers, the Committee requests the Government to keep it informed with regard to the administrative complaint and the judicial proceedings in progress.

B. The Government’s reply

1. 619. In its communication of 1 October 2009, the Government sent the following observations.
2. 620. As regards recommendation (a), point (i), the Government indicates that the Territorial Directorate of Cundinamarca instigated an administrative inquiry into the Banco Bilbao Vizcaya Argentaria (BBVA), in connection with the possible violation of article 39 of the Political Constitution and of ILO Convention No. 98, by undertaking a general campaign to induce employees to sign up to a collective accord and adopting measures against anyone who decided to join the trade union. The draft resolution containing the decision on the aforementioned inquiry is now before the Inspection, Supervision and Monitoring Coordination Authority.
3. 621. As regards recommendation (a), point (ii), the Territorial Directorate of Cundinamarca launched an administrative inquiry into the actions of BBVA on the grounds of possible anti-union harassment. A decision is still pending.
4. 622. As regards the dismissals of Mr José Murillo and Mr Henry Morantes, the Government refers to statements made by the bank according to which: the employment relationship was terminated unilaterally and the two former workers initiated legal action which is still ongoing, with the aim of obtaining reinstatement in their former posts. In their claims, they have not reported any harassment or persecution for belonging to the union (the Government sends copies of the claims in question).
5. 623. As regards Ms Nidia Patricia Beltrán, Mr Dairo Cortés, Ms Luz Helena Vargas, Ms Gloria María Carvajal and Ms Marina Guzmán, the Government indicates that according to the company:
   • – Nidia Patricia Beltrán is working as an official in Cali and has not made any claims against the bank in connection with the allegations.
   • – Dairo Cortés was dismissed for valid reasons connected with failure to fulfil his obligations and serious misconduct.
   • – As regards Luz Helena Vargas, there is no record of her in the database of employees and former employees.
   • – In the case of Gloria María Carvajal and Marina Guzmán, their employment was terminated by the bank with their consent and approval was given by the labour inspector. This was set out in the conciliation agreement, which also acknowledged settlement of any account (copies are provided by the Government).
6. 624. As regards recommendation (b), the Government indicates that the workers in question were not dismissed but signed conciliation agreements. The Government explains that conciliation is instituted in the public interest as a means of resolving, through negotiation, a legal dispute between two parties, with the assistance of a public official from the judicial or the administrative branch, or in exceptional cases, of private individuals. The conciliation procedure is characterized by the following elements: (a) it is a tool via which a dispute can be settled by the parties themselves, through reconciliation or consensus; (b) it is a preventive action in that it seeks a settlement before or during judicial proceedings, in which case the settlement pre-empts the final ruling and terminates the judicial proceedings; (c) conciliation is not strictly speaking a judicial measure, nor does it give rise to a jurisdictional process, because the conciliator, be it an administrative or judicial authority or an individual, does not intervene to impose on the parties a settlement under the terms of an autonomous and innovative decision; (d) conciliation is a useful means of settling disputes; (e) conciliation can be applied in any disputes in which a settlement can, in principle, be negotiated, or which involves persons whose capacity to conciliate is not legally limited; and (f) conciliation is the result of proceedings that are legally regulated.
7. 625. The Government adds that according to the bank, there are no administrative complaints or judicial proceedings against the bank in connections with the allegations that figure in this recommendation.

C. The Committee’s conclusions

1. 626. The Committee takes note of the Government’s observations on the following questions still pending.
2. 627. The Committee recalls that, in its previous recommendation (a), point (i), it had requested the Government to inform it of developments in the investigations then before the Territorial Directorate of Cundinamarca with regard to the allegations relating to the pressure put on workers at the BBVA and Granahorrar in the context of the merger between the two entities in 2006 to sign a collective accord despite the existence of a collective agreement which was still valid until 31 December 2007 and non-compliance with various provisions of that agreement. In that regard, the Committee takes note of the Government’s statement to the effect that the investigation launched by the Territorial Directorate of Cundinamarca into an alleged contravention of article 39 of the Political Constitution and of Convention No. 98 is still pending a decision by the Inspection, Supervision and Monitoring Coordination Authority. The Committee requests the Government to keep it informed of the outcome of the investigation.
3. 628. The Committee had also requested the Government to carry out an investigation into alleged harassment of trade union leaders, including the dismissals of Mr José Murillo and Mr Henry Morantes, and the pressure put on some workers to leave the union (Ms Nidia Patricia Beltrán, Mr Dairo Cortés, Ms Luz Helena Vargas, Ms Gloria María Carvajal and Ms Marina Guzmán). In that regard, the Committee takes note of the Government’s statements to the effect that according to the bank, Mr Murillo and Mr Morantes have initiated legal action to obtain their reinstatement but do not refer in their claims to any specific situation of harassment or persecution for belonging to a trade union. The Committee notes also that according to the bank, Ms Nidia Patricia Beltrán is an active official and has not filed any claim against the institution. Mr Dairo Cortés was dismissed for failure to fulfil his obligations and misconduct, and Ms Carvajal and Ms Guzmán left the Bank after reaching a conciliation agreement with the bank. As regards Ms Vargas, there is no record of her in the bank’s database. The Committee takes note of this information and requests the Government to keep it informed of the final outcome of any current judicial proceedings in connection with these allegations.
4. 629. As regards recommendation (b) concerning the allegations concerning the mass dismissal of workers by means of conciliation agreements in order to replace them with subcontracted workers, the Committee had previously taken note of the Government’s reply according to which the complainant organization had initiated an administrative complaint which was pending a decision, and requested the Government to keep it informed of developments in this regard. The Committee notes that, in its most recent observations, the Government specifies that conciliation proceedings are a means of settling a legal dispute, and indicates that, according to the bank, there is no administrative complaint and no pending judicial proceedings in connection with these allegations. The Committee takes note of this information, and will not pursue its examination of these allegations unless the complainant organization provides new information in this regard.