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

Case No 2051 (Colombia) - Complaint date: 14-SEP-99 - Closed

Allegations: Creation of cooperatives to the detriment of trade unions; dismissal of workers who do not accept new employment in the cooperatives

1. 360. The Committee last examined this case at its meeting in May 2000 [see 322nd Report, paras. 144-153]. The Clothing Workers' Trade Union of Colombia, EVERFIT-INDULANA (SINTRATEXTIL) and the National Textile and Clothing Industry Trade Union (SINTRATEXCO) forwarded information in a communication dated 12 October 2000. The Government sent its observations in communications dated 30 August 2000 and 4 January 2001.
2. 361. 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. 362. The Committee notes that the complainants allege that in 1996 Confecciones Colombia Ltda. began to operate associative labour cooperatives with workers from other textile companies. This led to a process of "delabourization", with the members of the cooperatives appearing as the owners rather than as workers bound by an employment contract, and specifically, that: (1) the cooperatives are a sham, since they are managed by the employers and since the workers work in the same place, with the same bosses and the same machinery as those still with Confecciones Colombia Ltda; (2) in 1997 the company's fixed-term workers were offered contracts with the cooperatives (with a 15 per cent cut in wages and the loss of their acquired rights under the collective agreement), and those who did not accept were dismissed; (3) in February 1999 the enterprise ordered a mass dismissal of cooperative workers; and (4) the creation of the associative labour cooperatives in Confecciones Colombia Ltda. has had disastrous consequences for the workers and their unions. In its reply, the Government stated that the allegations were being investigated.
2. 363. At its meeting in June 2000, the Committee made the following recommendations [see 322nd Report, para. 153]:
   • - The Committee requests the Government to ensure that the investigation it has initiated is thorough and covers all of the allegations made by the complainants, including those relating to: (1) the offer of employment in the cooperatives for the fixed-term workers of Confecciones Colombia Ltda. under threat of dismissal; and (2) the mass dismissals in February 1999. It also requests the Government to transmit the results thereof.
   • - The Committee requests the complainants and the Government to inform it whether workers in the cooperatives have the right to join trade unions.

B. The complainants' additional information

1. 364. In a communication dated 12 October 2000 the EVERFIT-INDULANA Clothing Workers' Trade Union of Colombia (SINTRA EVERFIT-INDULANA) (currently SINTRATEXTIL) and the National Textile and Clothing Industry Trade Union (SINTRATEXCO) stated, regarding the Committee's request on the right of workers in the cooperatives to join trade unions, that a cooperative is economic in character with a social vision that seeks to bypass intermediaries in order to reduce the costs of products and services; associative labour cooperatives bypass the intermediary, which in this case is the owner, to make more profit at the expense of the workers, given that there is no labour recruitment and they are governed by the rules on cooperatives of the framework act for cooperatives. In this context, trade unions are eliminated because, presumably, there is no legal labour link; and cooperative principles and the very concept of cooperatives are destroyed because the same employers, with the same bosses and supervisors, with the same systems and methods of production and the same machinery continued, but in associative labour cooperatives. This is a clever way of destroying trade unions, as the legal labour link disappears; it is also a way of destroying the cooperative movement as the number of cooperatives is nothing more than a sham of the real situation, within which the same employers continue to operate.
2. 365. The complainants also state that associative labour cooperatives, particularly service cooperatives that operate as labour intermediaries, have had devastating effects on trade unions, not only because they exclude unskilled workers in enterprises, but also because of the barriers to trade unionism, that these associative labour cooperatives impose because of the inherent nature of cooperatives and what they represent.

C. The Government's reply

1. 366. In its communications dated 30 August 2000 and 4 January 2001, the Government states that the Ministry of Labour and Social Security ordered an administrative inquiry specifically into the alleged violation of the collective agreement by the offer of employment in cooperatives made by Confecciones Colombia Ltda. to workers and that those who did not accept were dismissed. This investigation is taking place in the Regional Department of Antioquia and is in the initial stages. The Government adds that, as regards the offer of employment in cooperatives made by the company and the massive dismissals, the Territorial Directorate will proceed as soon as possible to the necessary checks, in order to ascertain the number of workers in the company in 1997, 1998 and 1999, as well as the number of associates in the cooperatives within the Confecciones Colombia company during the same years. In addition, these figures will be compared in order to ascertain the number of unionized employees who became associates in the cooperatives, and the exact number of persons who used to work for the company and became affiliates of the associative labour cooperatives.
2. 367. The Government states that article 39 of the National Constitution guarantees the right of association to all workers and employers, with the exception of those in the civil service. This is repeated in article 353 of the Labour Code. Consequently, the right of association is guaranteed both constitutionally and legally to workers in cooperatives.

D. The Committee's conclusions

1. 368. The Committee observes that when it examined this case at its June 2000 meeting concerning the operation of associative labour cooperatives in textile companies resulting in serious prejudice to workers and their organizations in these enterprises in this sector, it noted that the Government was proposing to initiate an investigation into the allegations and it requested that this be thorough and cover all the allegations made by the complainants, including those related to the offer of employment in the cooperatives for the fixed-term workers of Confecciones Colombia Ltda. under threat of dismissal and the mass dismissals in February 1999.
2. 369. The Committee notes the Government's statement that the Minister of Labour and Social Security ordered an administrative investigation for the alleged violation of the collective agreement by offering employment in cooperatives to workers of Confecciones Colombia Ltda. Under threat of dismissal and that this investigation is in the initial stages. The Committee regrets that the investigation has not yet been concluded. The Committee also reminds the Government that it had requested that the investigation should cover not only the situation to which the Government refers but also the entire range of allegations presented by the complainants. The Committee, therefore, urges the Government to take steps to ensure that the investigation is concluded rapidly and that it also covers the following allegations: (1) the cooperatives are a sham since they are managed by the employers and since the workers work in the same place, with the same bosses and with the same machinery as those still with Confecciones Colombia Ltda.; (2) in February 1999 the company ordered a mass dismissal of cooperative workers; and (3) the creation of the associative labour cooperatives in Confecciones Colombia Ltda. has had disastrous consequences for the workers and their trade unions (according to the complainants, in 1996 the two trade unions together had 440 members out of a total of 1,750 workers, while at the time of the complaint the company had 300 workers, of whom 168 were covered by the collective agreement and 134 were members of the complainant organizations, the rest of the company consists of 1,000 workers in the cooperatives). The Committee requests the Government to keep it informed of the results of the investigation.
3. 370. Finally, the Committee recalls that it had asked the complainants and the Government to inform it whether workers in the cooperatives have the right to join trade unions. In this respect, the Committee notes the Government's statement that by virtue of article 39 of the National Constitution and article 353 of the Labour Code all workers (with the exception of those in the civil service) are guaranteed the right of association and, consequently, this right is guaranteed to workers in the cooperatives; the complainants indicate that there is no labour link in the associative labour cooperatives (members of these are partners) but when these cooperatives act as labour intermediaries for the enterprises they are acting as a means of destroying trade unions. The Committee requests the Government to ensure that associative labour cooperatives are not used to obscure the reality of the enterprise and to undermine genuine labour relations with the aim of prejudicing trade unions or their members.

The Committee's recommendations

1. 371. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to ensure that the administrative investigation under way covers not only the allegation that employment in the cooperatives was offered to fixed-term workers of Confecciones Colombia Ltda. under threat of dismissal, but also the other allegations, and that steps are taken to conclude this investigation rapidly. The Committee requests the Government to keep it informed of the results of the investigation.
   • (b) The Committee requests the Government to ensure that associative labour cooperatives are not used to obscure the reality of the enterprise and to undermine genuine labour relations with the aim of prejudicing trade unions or their members.