Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Protection of Wages Convention, 1949 (No. 95) - Colombia (Ratification: 1963)

The Committee notes the Government’s report responding to the comments made in its last observation. It also notes the new comments sent on 23 August 2002 by the Union of Maritime and River Transport Workers (UNIMAR), to which it will refer below.

1. With regard to its previous observation concerning comments made by the Union of State Workers of Colombia to the effect that the municipality of Popayán owed six months’ wages, which affected both serving and retired employees, the Committee notes the Government’s statement in its report that, according to the mayor of Popayán, the municipality is now up to date in the payment of wages. The Committee notes this information and once again asks the Government to ensure that the wages of workers employed, at whatever level, in the public administration are paid regularly and at prescribed intervals, as required by Article 12, paragraph 1, of the Convention.

2. The Committee takes note of the Government’s reply to the comments sent by the World Federation of Trade Unions (WFTU) and the Yumbo subdivision of the National Union of Chemical Industry Workers of Colombia (SINTRAQUIM) alleging non-compliance with the provisions of Article 12, paragraph 2, of the Convention (final settlement of wages due) by the enterprises Whitehall Robins Laboratorios Ltd. and American Home Products International.

3. The Government states in this connection that the Ministry of Labour and Social Security, through the Valle del Cauca Territorial Directorate, initiated an investigation into Whitehall Robins Laboratorios Ltd. which concluded that "the mere proposal of a voluntary retirement plan does not amount to conduct which may be deemed to be in breach of the labour standards in force". The Government indicates that the complainants appealed against that ruling. The decision on the appeals, based on the case law of the Supreme Court of Justice, was that "neither the law nor judicial decisions bar employers from promoting retirement plans (…), nor is it true that the offer by employers of money by way of an allowance accepted voluntarily by a worker constitutes per se an act of coercion". The Committee notes the foregoing information and urges the Government to continue to ensure observance of the workers’ right laid down in Article 12, paragraph 2, of the Convention, with regard to the final settlement of wages due. It hopes that the Government will send information regarding the enterprise American Home Products International and the comments made by SINTRAQUIM.

4. The Committee notes the Government’s observations on the comments made by the Union of Public Employees of the Medellín subdivision (SINDESENA) in connection with a recommendation by the Supreme Court of Justice of Colombia to make the corresponding adjustment of the wages. As the Committee understands it, the Government indicates with reference to those comments that, in accordance with Decision No. SU-1052 of 10 August 2000, the Government of Colombia paid in full the wage increase due to employees in the public sector. The Committee takes note of this information and once again urges the Government to take the necessary measures to ensure that the wages of workers in the public service are paid regularly and at the prescribed intervals, as required by Article 12, paragraph 1, of the Convention.

5. The Committee also notes the new comments, sent on 23 August 2002, by the Union of Maritime and River Transport Workers (UNIMAR). The Committee notes that the International Labour Office informed the above organization that the matters addressed in its comments had been dealt with by the Committee in an observation, and that the Government’s comments were awaited. In its previous observation, the Committee asked the Government to take the necessary steps to ensure payment of the wages due to workers in accordance with the Convention (Article 11: treatment of workers as privileged creditors in the event of bankruptcy or judicial liquidation) and to provide information on them.

6. Under cover of its comments of 23 August 2002, UNIMAR sends a copy of a communication which the Ministry of Labour and Social Security sent to the management of UNIMAR stating that the Ministry of Labour "lacks the authority to enforce labour- and pension-related obligations of enterprises or employers, whether public or private". The Ministry of Labour goes on to indicate that it forwarded UNIMAR’s request to its General Directorate of Economic Benefits and Supplementary Social Services so that it may "examine its claim to guarantees once the assets have been liquidated".

7. The Committee notes with regret that the terms of the communication of the Ministry of Labour and Social Security are contrary to section 157 of the Labour Code, as amended in 1990, under which: "Credits payable to workers by way of wages, unemployment and other social benefits and employment allowances belong to class I as established in section 2495 of the Civil Code and shall take precedence over all others." It is also contrary to section 485 of the Labour Code, under which "supervision of compliance with the provisions of this Code and other social provisions shall be carried out by the Ministry of Labour in the manner prescribed by the Government or by the Ministry itself". Consequently, the Ministry of Labour and Social Security will plainly be in breach of the provisions of the Labour Code if it fails to adopt the necessary measures to protect the credits of the workers of the Merchant Fleet Investment Company S.A. (formerly Grancolombia Merchant Fleet) in the liquidation procedure. The Committee urges the Government to take the necessary steps to protect the claims (employment and pension) of the above workers, in accordance with the provisions of the Labour Code and the Civil Code and Article 11 of the Convention. It also urges the Government to inform the International Labour Office of the action taken to this end.

8. Lastly, the Committee recalls that in its previous observation it noted the comments received from the Union of the Administradora de Seguridad Limitada (SINTRACONSEGURIDAD) alleging non-payment of workers’ wages due to closure of the enterprise. The above union indicates that the enterprise known as the Administradora de Seguridad Limitada, established by the Banco Cafetalero, registered with the Ministry of Agriculture, is a mixed economy enterprise. As noted, these comments were transmitted to the Government, which had not sent its comments before the Committee’s meeting. The Committee therefore requests the Government to provide as soon as possible its comments on the allegations made by SINTRACONSEGURIDAD and, in any event, to take the necessary measures to guarantee the payment of wages due to workers in accordance with Article 11 (payment of the wages of workers in the event of bankruptcy or judicial liquidation).