Report in which the committee requests to be kept informed of development - Report No 324, March 2001

Case No 1973 (Colombia) - Complaint date: 31-JUL-98 - Closed

Allegations: Favourable treatment of a particular trade union organization; violation of the right to collective bargaining

1. 317. The Committee examined this case most recently at its May 2000 meeting [see 322nd Report, paras. 83-93]. The Government sent its observations in communications dated 30 August 2000 and 4 January 2001.
2. 318. 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. 319. The Committee observes that during the last examination of this case in May 2000 it noted that the Special Labour Inspection, Monitoring and Control Unit of the Ministry of Labour had conducted an administrative inquiry that concluded that the enterprise ECOPETROL did not violate the right of association with regard to the double deduction of union dues (one lot of dues corresponding to trade union membership and the other to the financing of the trade union organization signatory to the collective agreement), but nevertheless fined it an amount representing 20 monthly minimum wages for illegal deduction of salary, and that an appeal was lodged against this decision [see 322nd Report, para. 90]. In addition, the Committee noted that the complainant organization had submitted further allegations.
2. 320. On this basis, the Committee formulated the following recommendations [see 322nd Report, para. 93, subparas. (a) and (b)]:
   • - The Committee requests the Government to keep it informed of the outcome of the appeal lodged against the decision which followed the administrative investigation carried out by the Ministry of Labour.
   • - The Committee requests the Government to send its observations concerning the new allegations presented by ADECO. (ADECO explained that the enterprise ECOPETROL has a special pay scheme for managerial staff established under Agreement No. 01 of 1977 which contains conditions of employment and remuneration higher than those established by way of collective agreement. According to ADECO, this Agreement encourages staff in managerial or technical posts or in positions of trust not to belong to a trade union as it applies on condition of either not joining or of leaving either of the two first-level trade union organizations present in the enterprise. ADECO indicates that the provisions of the agreement should be applied to all workers in the enterprise, given that national legislation prohibits the unilateral regulation of non-unionized workers if it exceeds the conditions provided in a collective agreement concluded with unionized workers. ADECO asked the enterprise ECOPETROL to ensure that Agreement No. 01 was either brought into line with or incorporated into the prevailing Agreement, but the enterprise refused to comply.)

B. The Government's reply

1. 321. In its communications of 30 August 2000 and 4 January 2001, the Government states that an application for reconsideration and a remedy of appeal were lodged against Ruling No. 00373 of 10 February. The first was resolved by way of Ruling No. 00503 of 18 April 2000 which confirms each and every part of the administrative decision appealed against. The remedy of appeal was resolved through Ruling No. 1292 of 20 June 2000 which revoked the second article of Ruling No. 00373 of February 2000 which had fined the enterprise ECOPETROL the sum of 20 monthly minimum wages for illegal deduction of salary, considering that at the time of the collective bargaining between the enterprise ECOPETROL and USO the latter held the position of workers' representative, including for the members of ADECO, and had precedence under the collective agreement for all intents and purposes (for example, to receive the dues deducted from workers covered by the collective agreement, including the ADECO members). Ruling No. 1292 of 20 June 2000 indicates the exhaustion of government channels and the legal basis for administrative jurisdiction.
2. 322. With regard to the allegations submitted by ADECO on 27 March 2000, the Government states that the Special Labour Inspection, Monitoring and Control Unit of the Ministry of Labour asked the Territorial Directorate of Cundinamarca to officially begin the administrative labour inquiry.

C. The Committee's conclusions

1. 323. The Committee observes that, when it examined this case at its May 2000 meeting, it requested the Government to keep it informed of the outcome of the appeal lodged against Administrative Ruling No. 00373 of 10 February 2000 according to which the enterprise ECOPETROL was fined the sum of 20 monthly minimum wages for illegal deduction of salary following an investigation carried out into allegations concerning the double deduction of trade union dues from ADECO members. In this respect the Committee notes the Government's statement that: (1) Ruling No. 1292 of 20 June 2000 revoked article 2 of Ruling No. 00373 which had imposed the fine of 20 monthly minimum wages on the enterprise ECOPETROL for illegal deduction of salary as it considered that USO had precedence under the collective agreement for all intents and purposes (including the receipt of dues deducted on the basis of the collective agreement from workers in the enterprise not affiliated to USO); and (2) administrative channels were declared to be exhausted, with the possibility remaining for ADECO to apply for a judicial review. In these circumstances, recalling that during the previous examination of the case it was found that ADECO had signed a new collective agreement for 1999-2000 [see 322nd Report, para. 91], and that as a result the double deduction stopped being applied automatically, the Committee will not pursue its examination of this allegation.
2. 324. The Committee also observes that the Government had been asked to send its observations concerning new allegations presented by ADECO on 27 March 2000 relating to the application of an agreement - that contains conditions of employment and remuneration higher than those agreed to by way of collective agreement - to managerial or technical staff and to staff in positions of trust on condition that they do not join or that they leave either of the two first-level trade union organizations present in the enterprise ECOPETROL. In this respect, while it notes the Government's statement that the Territorial Directorate of Cundinamarca has been asked to begin an administrative labour inquiry into this allegation, the Committee emphasizes that the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98 relating to the full development and utilization of machinery for voluntary negotiation with workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee stresses that direct negotiation with the workers must not undermine the position of the trade unions, nor should it weaken the impact of the contents of the concluded collective agreements. In these circumstances, the Committee requests the Government to take measures to ensure that the inquiry proposed on this question is begun immediately and to keep it informed of the outcome.

The Committee's recommendations

1. 325. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • As regards the application of an agreement - that contains conditions of employment and remuneration higher than those agreed to through collective agreement - to managerial or technical staff and to staff employed in positions of trust on condition that they do not join or that they leave either of the two first-level trade union organizations present in the enterprise ECOPETROL, the Committee requests the Government to take measures to ensure that the inquiry proposed is begun immediately and to keep it informed of the outcome.