Interim Report - Report No 351, November 2008

Case No 2355 (Colombia) - Complaint date: 07-JUN-04 - Closed

Allegations: The complainant organizations allege that, after four months of negotiations with ECOPETROL SA over a list of claims, the administrative authority convened a Compulsory Arbitration Tribunal; subsequently a strike was called which was declared illegal by the administrative authority; the company ordered the mass dismissal of a large number of its workers, including many trade union officials. Furthermore, the National Trade Union of Workers of Operating, Contracting and Subcontracting Companies Providing Services and Activities in Petroleum, Petrochemical and Similar Industries (SINDISPETROL) alleges that several of its members were dismissed two days after it announced its establishment

1. 295. The Committee last examined this case at its November 2007 meeting [see 348th Report, paras 228–319, approved by the Governing Body at its 300th Session]. The National Trade Union of Workers of ECOPETROL SA (SINCOPETROL) sent additional allegations in a communication dated 25 November 2007. The Association of Managers and Technical Staff of the Colombian Petroleum Industry (ADECO) and the Single Confederation of Workers of Colombia (CUT) sent additional allegations in a communication dated 27 November 2007. The World Federation of Trade Unions (WFTU) also sent additional allegations in a communication dated 16 August 2007. The CUT sent additional information in a communication of 22 August 2008.
2. 296. The Government sent its observations in communications dated 3 December 2007 and 18 February, 2 April, 16 and 30 July, 27 August 2008 and 5 September 2008.
3. 297. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 298. On last examining the case, the Committee made the following recommendations [see 348th Report, para. 319]:
   • (a) While taking due note of the Government’s repeated explanations of the specific circumstances in the country, the Committee once again requests the Government, in consultation with the representatives of workers’ and employers’ organizations, to take steps to make the necessary amendments to legislation (in particular section 430(h) of the Substantive Labour Code) so as to allow strikes in the petroleum sector, with the possibility of providing for the establishment of a negotiated minimum service following full and frank consultations with the participation of the trade unions, the employers and the public authorities concerned. It requests the Government to keep it informed of any measure adopted in this regard.
   • (b) The Committee once again urgently requests the Government to take the necessary steps to modify section 451 of the Substantive Labour Code so that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties involved. As regards the reference by the Government to the possibility of lodging an appeal against government rulings declaring a strike to be illegal, the Committee suggests that the Government explore the possibility of the administrative authority applying to an independent body such as the judicial authority whenever it considers a strike to be unlawful. The Committee requests the Government to keep it informed in this regard.
   • (c) The Committee urges the Government to take steps to prevent the dismissal of the 104 workers reinstated at ECOPETROL SA pursuant to the ruling of the voluntary arbitration tribunal, as a consequence of the strike on 22 April 2004, to annul the 37 dismissals and sanctions barring the workers from public posts that have already been ordered and to ensure that the 45 dismissals already decided on are not carried out. The Committee requests the Government to keep it informed in this regard, in particular concerning the decision of the Council of Judicature on the action for protection of constitutional rights brought by the ECOPETROL workers (tutela).
   • (d) As regards the legal proceedings still pending in relation to the seven dismissed trade union leaders, the Committee, taking into account that in the case of Mr Quijano his dismissal was based on legislation that does not conform to the principles of freedom of association, requests the Government to take steps to have him reinstated without delay and, if reinstatement is not possible, to ensure that he is fully compensated. The Committee also requests the Government to keep it informed of the final outcome of the appeals still pending concerning the three other trade union officials dismissed, and in the particular case of Mr Ibarguén the Committee requests that he be reinstated on a temporary basis as ordered by the judicial authority, until a ruling has been issued concerning the appeal.
   • (e) As regards Mr Jamer Suárez and Mr Edwin Palma, USO members who according to the complainants have been held in custody on charges of conspiracy to commit offences and terrorism since 3 June and 11 June 2004 respectively, the Committee once again requests the Government to supply information without delay on the charges and the status of the proceedings instituted against them, to ensure that all the guarantees of a normal judicial procedure are in place and to keep it informed in this respect.
   • (f) As regards the allegations presented by SINDISPETROL in relation to the dismissal of the founding members of the trade union five days after it had been established and two days after initiating the process of registering the trade union and informing ECOPETROL SA and its contractors of its establishment, and to the pressure exerted on other members of the executive body, leading them to relinquish their trade union duties, the Committee requests the Government to keep it informed with regard to the administrative labour investigation initiated by the Special Directorate of Barrancabermeja.
   • (g) The Committee requests the Government to keep it informed regarding the outcome of the negotiations between the USO and ECOPETROL and, if appropriate, to confirm the recent conclusion of a collective agreement and to take the measures necessary to allow ADECO to bargain collectively with the enterprise on behalf of its members.
   • (h) As to the conclusion of collective accords with non-unionized workers or those relinquishing trade union membership which offer better terms than the collective agreements, the Committee requests the Government to take the necessary measures to ensure that collective accords are not signed with non-unionized workers to the detriment of collective bargaining and collective agreements within the enterprise ECOPETROL SA and to keep it informed of any developments in this regard.

B. New allegations

1. 299. In its communication dated 25 December 2007, SINCOPETROL states in its allegations that the issues being examined in this case concern also its own members. Following the work stoppage that started on 22 April 2004, disciplinary procedures were initiated against SINCOPETROL’s members. According to the complainant, despite the fact that over 2,000 workers took part in the collective action, only 101 of its members were targeted by the disciplinary procedures, dismissed and declared unfit for public office or work for more than ten years because they had participated in the work stoppage. Although these public employees of ECOPETROL SA, who were members of the Petroleum Industry Workers’ Trade Union (USO) that initiated the collective labour dispute over a list of demands submitted in exercise of the right of association and collective bargaining, were required to comply with and defend the Constitution, legislation, statutes, regulations and manuals governing basic and specific functions and to refrain from any action or omission liable to cause the suspension or disruption of an essential public service, the fact remains that the ILO, through such bodies as the former Petroleum Committee, the Committee on Freedom of Association and the Committee on the Application of Standards, has expressed the opinion that prospecting for petroleum and hydrocarbon fuels and their extraction, refining and distribution are not a public service that is essential to the survival of the community and the maintenance or conservation of public order.
2. 300. The disciplinary action taken by the administration of ECOPETROL SA through its disciplinary control office against workers who had been barred from public office and dismissed, simply for having taken part in the collective work stoppage called by the USO and declared illegal by the Government, is fundamentally flawed on grounds of false motive and abuse of power, inasmuch as the disciplinary body wrongly and arbitrarily qualifies calling and participating in a collective work stoppage that has been declared illegal – such as that called by USO at ECOPETROL SA on 22 April 2004 – as a “serious offence”. In the Disciplinary Procedures Act such work stoppages are banned under section 35, paragraph 34, of Act No. 734/02 CDU, where they are described as “most serious offences” (falta gravísima dolosa) that infringe paragraphs 5, 6, 7 and 8 of the said section. ECOPETROL administration’s disciplinary body uses this definition to its own purpose, acting in this instance as both judge and jury on a fundamental point that influenced the eventual decision but was deliberately and misleadingly omitted from the actual text. There was no objective analysis showing to what extent each worker might be guilty of the charge against him or her, and the disciplinary body thus reached the erroneous conclusion that participation in the strike called at ECOPETROL SA by USO was just such a “serious offence”. Instead of taking into account the proper ontological and axiological criteria, the collective work stoppage or strike that had been declared illegal was arbitrarily qualified as a “collective dereliction of duty, function or service”, which does not correspond to the disciplinary principles of the Office of the Attorney-General in Colombia as regards the legal or administrative definition of that term for state employees. The grounds for qualifying an act as dereliction of duty without just cause, which justifies the administrative authority or appointments board declaring the post vacant subject to normal legal procedure, are set out in sections 126 and 127 of Decree No. 1950 of 1973, whose section 128 goes on to stipulate that “if the dereliction of duty disrupts the service, the employee at fault shall be liable to the corresponding disciplinary sanctions and civil or criminal charges”. This means that, under the said decree, disciplinary action is called for only when the service has in some way been disrupted.
3. 301. The complainant also states that the workers dismissed for taking part in the work stoppage without any judicial authorization to waive their trade union immunity included members of SINCOPETROL’s own organization: Ariel Corzo Díaz, Moisés Barón Cárdenas, Alexander Domínguez Vargas, Héctor Rojas Aguilar, Wilson Ferrer Díaz, Fredys Jesús Rueda Uribe, Fredys Elpidio Nieves Acevedo, Genincer Parada Torres, Braulio Mosquera Uribe, Jimmy Alexander Patiño Reyes, Jair Ricardo Chávez, Ramón Mantuano Urrutia, Germán Luís Alvarino, Sergio Luís Peinado Barranco, Olga Lucía Amaya and Jaime Pachón Mejía.
4. 302. In a communication dated 27 November 2008, ADECO alleges that, under Decree No. 3164 of November 2003, certain categories of ECOPETROL employees are not covered by the collective agreements, including workers engaged in administration, accounting, general services, production, drilling, maintenance, mechanical work, oil-well services, industrial safety, electrical services, welding, metalwork, supplies, engineering, refining and office work, despite the fact that these posts are defined and classified in company agreements as operational units. Consequently, they are not entitled to the conditions laid down in collective agreements in terms of salaries and legal and extralegal benefits. ADECO also states that ECOPETROL has introduced a special benefits scheme, under a collective accord that it has concluded with employees who are not members of a trade union or who have relinquished their membership, and which offers more favourable terms than those enjoyed by union members, the object – according to the complainant – being to cut the membership of the existing trade unions in the company right down and to reduce them to minority status.
5. 303. The complainant further alleges that ECOPETROL refuses to bargain collectively, and that workers belonging to ADECO have therefore had no increase in salary since 2003. In other words, they are discriminated against compared with the other workers who have had a rise in pay.
6. 304. Moreover, ADECO claims that the arbitration award handed down by the Compulsory Arbitration Tribunal on 9 December 2003, the clarification issued on 17 December 2003 and the supplementary award of 23 July 2004 following the dispute between USO and ECOPETROL did not take account of ADECO’s list of demands. According to the complainant, the Arbitration Tribunal was imposed by the Government unilaterally, without the workers having the option to call a strike. The trade union organization exhausted every possibility of appealing to the courts, since when it has been impossible for the company to negotiate the lists of demands that have been submitted. The fact is that on 2 December 2005, ADECO and USO each presented a separate list of demands on behalf of their members. And since both the trade unions and ECOPETROL SA had denounced the existing collective agreement on 1 December 2005 – within the legal time frame – the company decided on its own not to enter into any further collective bargaining with workers represented by ADECO and USO. In this way it arbitrarily extended the December 2003 arbitration award – which was in force for two years, i.e. until 8 December 2005 – and unilaterally extended the agreement right up to June 2006, in complete disregard of the intention of the trade unions to negotiate when they denounced the arbitration award on 1 December 2005. It thus became impossible to review conditions of employment, such as salaries, by negotiating the separate lists of demands that ADECO and USO had presented.
7. 305. On 6 May 2006, ADECO presented ECOPETROL SA with another list of demands on behalf of its members simultaneously with the other two unions operating in the company – USO and the National Trade Union of Workers of Operating, Contracting and Subcontracting Companies Providing Services and Activities in Petroleum, Petrochemical and Similar Industries (SINDISPETROL), the union representing the branch of activity. When the legal steps for reaching a direct settlement had been completed, the company refused to negotiate a single item of ADECO’s list of demands. This left ADECO with no option but to ask for a Compulsory Arbitration Tribunal to be convened, which one year later, in May 2007, was only just beginning to meet to designate a third arbitrator. In the meantime, without engaging in any direct collective bargaining, the company had been encouraging ADECO’s members to leave the organization by offering them unilateral benefits such as bonuses, vouchers, early retirement and salary adjustments, based on rigged and selective “merit” assessments that discriminated against employees at the same hierarchical and operational level who stayed with ADECO.
8. 306. The complainant adds that the situation is much the same at the Chevron Petroleum Company, which is also refusing to negotiate with ADECO while negotiating with two other minority organizations. The company is settling the current dispute with two trade union organizations representing the “daily payroll” (rol diario) workers, which have minority status compared to the total number of Chevron workers in Colombia that are represented by SINTRAPETROL and USO. It then imposes its pay policy on employees affiliated to ADECO, who are classified as “monthly payroll” (rol mes) workers.
9. 307. The two-year collective agreement signed by Chevron Petroleum Company on 3 April 2006 is designed to exclude ADECO from the guarantees thus negotiated. Although ADECO does receive an invitation to take part in the direct settlement negotiations, its lists of demands are systematically denied.
10. 308. The Ministry of Social Welfare was therefore asked to convene the Arbitration Tribunal in May 2006, but for some 19 months nothing happened. The collective dispute that originated with the list of demands that ADECO submitted to the Chevron Petroleum Company is now being resolved by a Compulsory Arbitration Tribunal, thanks to a legal decision which Chevron is hoping to have annulled by the Supreme Court of Justice.
11. 309. Given the situation, ADECO has lodged its own appeal in opposition to Chevron and has called on the Supreme Court of Justice to refer the matter back to the Tribunal so that it can (1) clarify certain points that have left ADECO members less well off than individual “monthly payroll” workers belonging to other trade unions, who are entitled to a range of extralegal benefits that they have been offered unilaterally, (2) resolve the points at issue, and (3) declare that the so-called supplementary extralegal benefits being contested by ADECO have not been properly interpreted and are in fact supplementary plans that are prohibited under the Compulsory Health Act.
12. 310. Finally, ADECO alleges that two of its officials, Raúl Fernández Zafra and Henry Vitoria O’Meara (whose reinstatement by court decision is still pending), have recently had their trade union immunity lifted.
13. 311. In a communication dated 27 November 2007, the CUT states that, following a work stoppage on 18 and 24 March 2004 in the Barrancabermeja and Cartagena refineries, four officials of USO’s Barrancabermeja section have been dismissed: Alirio Rueda (President), Gregorio Mejía (Vice-President), Juvencio Seija (General-Secretary) and Fernando Coneo (Press and Public Relations Secretary). The CUT claims that the disciplinary proceedings against them did not respect the principles of due process or their right to a proper defence.
14. 312. In its communication of 22 August 2008, the CUT refers to the recent adoption of Act No. 1210 which transfers to the labour tribunals the authority previously vested in the Ministry of Social Protection to declare strikes illegal. Nevertheless, the CUT observes that some problems remain in this Act with regard to the arbitral tribunals.

C. The Government’s reply

1. 313. In its communications dated 3 December 2007 and 18 February, 2 April, 16 and 30 July and 27 August and 5 September 2008, the Government sent the following observations.
2. 314. With regard to point (a) of the Committee’s recommendations in its previous examination of the case, concerning the exercise of the right to strike in essential public services, the Government repeats its previous statements that the ruling handed down by the Constitutional Court (No. 450 of 1995), when it examined the enforceability of section 430(h) of the Substantive Labour Code, concluded that, inasmuch as the activities referred to therein are the very basis of the performance of other activities that are essential to the exercise or enjoyment of fundamental rights, they themselves constitute an essential service.
3. 315. The Constitutional Court’s reasoning in reaching decision C-450 of 1995 was as follows:
   • ... A service can be said to be a public service when the activities involved contribute directly and specifically to the protection of goods or the satisfaction of interests or the realization of values that have a connotation of respect – given the pre-eminence that is accorded to human rights and the guarantees that are provided for their protection so as to ensure that they are respected and enforced ...
4. 316. In other words, there is a limit to the exercise of the right to strike in this type of activity, and that limit is part and parcel of the constitutional principles of a social state of law, wherein the prevalence of general over individual interests – in order to secure the fundamental objectives of the State – is particularly important.
5. 317. The Government considers that the concept of essential service established by the supervisory bodies of the ILO does not take into account the spirit of the ILO Constitution as it pertains to the regulation of conditions of work, bearing in mind, as clearly stated in paragraph 3 of article 19, the specific circumstances of countries. In the case of Colombia, the Government believes that the said circumstances could be said to have been taken into account if due consideration were given to its line of argument, namely, that ECOPETROL is the only company in the country that refines petroleum and its paralysis could endanger people’s safety, and even their health, because of the possible consequences of depriving the country of fuel.
6. 318. The supervisory bodies have not clarified the scope of the word “safety” in their definition of essential service, and the Government considers that there is no valid reason why it should not encompass the situation of people deprived of their means of transport and living which in any society are so dependent on petroleum.
7. 319. With regard to point (b) of the recommendations, the Government states that it has submitted to Congress Bill No. 190 of 2007, which transfers the authority for declaring a strike illegal to the labour courts – part of the judiciary, which is entirely independent of the Executive. The Bill is being discussed by Congress in extraordinary sessions that the Government has been convening since February 2008.
8. 320. With regard to point (c) of the recommendations, concerning the situation of the 104 reinstated workers at ECOPETROL, the Government states that the company acted in conformity with domestic legislation (Act No. 734 of 2002) guaranteeing compliance with the provisions of article 29 of the Political Constitution, which gives effect to the concept of due process by proclaiming such principles as the presence of a competent judge, compliance with all procedural rules and the existence of a two-tier system. Moreover, the initiation and conduct of the disciplinary proceedings by the competent authority are the legal consequence of the implementation of the arbitration award handed down on 21 January 2005 by the Ad Hoc Voluntary Arbitration Tribunal, which explicitly ordered the reinstatement of a number of workers pursuant to the Single Code of Discipline, as is noted in paragraphs 6 and 7 of the resolution contained in the said award. ECOPETROL cannot disregard constitutional and legal rules and regulations such as articles 6 and 123 of the Constitution and Act No. 734 of 2002. In other words, officials responsible for discipline are under an obligation to comply with the said rules and regulations, since failure to do so has legal implications that affect the impartiality that is expected of disciplinary measures. It would therefore be procedurally incorrect, from the constitutional and legal standpoint, for the administrative authority embodying the disciplinary authority of the State, in accordance with Act No. 734 of 2002, to refrain from enforcing decisions reached in disciplinary proceedings.
9. 321. Finally, the Government asserts that, when taking decisions, the officials of ECOPETROL who are responsible for discipline do not take into account whether or not a worker belongs to a trade union but only his or her status as a public official. It cannot therefore be maintained that their action infringes workers’ freedom of association.
10. 322. On the contrary, it should be emphasized that the company has fully complied with its commitments vis-à-vis the statutes of the Ad Hoc Voluntary Arbitration Tribunal, including the commitment to abide by the decision reached by the arbitration body, since it is specifically stated that “the decisions reached by the Tribunal are binding on the parties concerned”. Consequently, as was its duty, the company proceeded to comply with the Tribunal’s ruling as set out in the arbitration award handed down on 21 January 2005.
11. 323. With regard to point (d) of the recommendations concerning the reinstatement of workers who have been dismissed, such a decision – as has been explained on previous occasions – can be taken only through judicial channels, i.e. when a court ruling so disposes. This applies equally to compensation. In the case of Quijano Lozada, as noted before, those judicial channels have been exhausted and the decisions reached went against him. The ordinary labour court considered that his dismissal was in keeping with the provisions of domestic legislation. Furthermore, Mr Quijano’s appeal for protection of his trade union rights failed inasmuch as the constitutional judge declared that he was not competent to deal with the matter and that the competence lay with the ordinary labour courts. As it has already explained, the Government considers that this allegation does not call for any more detailed examination, since the alleged issues were resolved by the judiciary, which is independent of the Executive and whose decisions must therefore be respected and complied with by the Government.
12. 324. With regard to point (e) of the recommendations concerning the incidents involving Jamer Suárez and Edwin Palma, according to the information supplied by the National Directorate of Attorney-Generals the investigation into the case concerning Jamer Suárez, has been closed since 25 August 2005 and, in the case of Edwin Palma, the directorate has requested more detailed information.
13. 325. With regard to point (f) of the recommendations concerning the labour administrative investigation initiated by the Social Office of Barrancabermeja against ECOPETROL and its subcontractors, following complaints lodged by SINDISPETROL with respect to anti-trade union acts and the infringement of trade union immunity, the Government states that the investigation eventually gave rise to resolution No. 00018 of 27 March 2007 issued by the Labour Inspectorate of the Territorial Directorate of the Special Labour Office of Barrancabermeja, which considered that the matter should be resolved by the judicial authority and therefore abstained from imposing any penalty on ECOPETROL’s subcontractors, SADEVEN, BLSTINGMAR, Construcciones Rampint Ltda., Petro Advance, Montajes Morelco Ltda., Termotécnicas Coindustrial, Colmaquinas Ut and Inelectra Shrader Camargo, noting that the complainants were at liberty to appeal to an ordinary labour court. The Government states that the said resolution was now definitive, since no appeals were lodged against it. The Government attached a copy of the said resolution.
14. 326. With regard to point (g) of the recommendations concerning the collective bargaining with USO, ADECO and SINDISPETROL, the Government encloses a table showing negotiations that were held with the various trade union organizations, sent by ECOPETROL’s coordinator for trade union negotiations and relations.
15. 327. The coordinator states that the collective dispute with USO ended with the conclusion of a collective labour agreement, whose text was deposited with the Ministry of Social Welfare in accordance with section 469 of the Substantive Labour Code. The agreement is applicable for three years, from 9 June 2006 to 8 June 2009.
16. 328. The company signed an annex with SINDISPETROL which is part and parcel of the new collective agreement and has likewise been deposited with the Ministry of Social Welfare.
17. 329. As regards ADECO, according to the information provided by the coordinator for trade union negotiations and relations, and taking into account the principle of the single nature of the agreement, the wages and benefits scheduled under the collective agreement for 2006–09 also applies to the members of SINDISPETROL. The Ministry of Social Welfare, ruling on ADECO’s proposal that a Compulsory Arbitration Tribunal be convened, agreed to its request. As a result, an arbitration award was handed down on 2 October 2007 which has not been implemented, since ECOPETROL has lodged an appeal against the award that has not yet been ruled upon by the Labour Appeals Chamber of the Supreme Court of Justice.
18. 330. The Government states that, according to ECOPETROL, ever since a direct agreement was reached ADECO’s representatives have always taken part in the negotiations as advisers and the steps taken by ECOPETROL have always complied with domestic legislation, as previously indicated.
19. 331. With regard to the latest allegations presented by ADECO to the effect that it was not taken into account in the 2002–04 collective bargaining process, the Government states that, according to ECOPETROL, ADECO’s assertions have no basis in law or in fact, since it spontaneously opted to have its demands incorporated in the list presented by USO, which undertook to represent its views; this is confirmed by the ADECO annex referring to the 2001–02 collective agreement as well as by the agreements entered into in 1996 and 1998 by the trade union organizations operating in ECOPETROL SA in the exercise of their trade union autonomy.
20. 332. The Government states further that, according to ECOPETROL, ADECO had access to all the regular procedural machinery to appeal against the rulings handed down by the Arbitration Tribunal and that, once the arbitration award had been handed down on 9 December 2003 and subsequently clarified and complemented, the trade union organizations operating in ECOPETROL SA appealed against the award. These appeals were resolved by the Labour Appeals Chamber of the Supreme Court of Justice, which decided not to annul the 9 December 2003 award, as clarified and complemented on 17 December 2003 following a number of requests for clarification and annulment presented by ADECO and USO. That being so, the Government does not understand how the union organization can claim that the decisions handed down by the Compulsory Arbitration Tribunal of the Labour Appeals Court of the Supreme Court of Justice constitute an infringement of the constitutional right to due process, when it was represented in the Compulsory Arbitration Tribunal by USO and, through its legal representative, introduced an appeal to have the decisions annulled that was resolved by the Labour Appeals Chamber of the Supreme Court of Justice – the latter being competent in such matters by virtue of section 10 of Act No. 712 of 2001 amending the Code of Labour Procedure.
21. 333. The 2001–02 collective agreement could not be automatically extended, as that is possible only if the parties concerned have not denounced section 478 of the Substantive Labour Code. This was not the case, however, since the parties had presented a partial denunciation of the agreement, thereby initiating the collective dispute that culminated in the implementation of the arbitration award.
22. 334. The Government explains that ECOPETROL exercised its legitimate right to denounce the collective agreement in accordance with the provisions of the labour legislation, that the collective dispute that ensued complied with the relevant rules and regulations and that USO – which was representing ADECO – did not on that occasion denounce any irregularity in the proceedings; consequently, it is unacceptable that ADECO should subsequently and mistakenly allege that the initial procedures were flawed.
23. 335. The Government states that, according to ECOPETROL, it is not true that the direct conciliation stage lasted longer than allowed under the rules and regulations. The direct conciliation stage failed despite the company’s enormous efforts to reach an agreement on the underlying issues, i.e. both the points raised in the list of demands presented by USO, acting also as ADECO’s representative, and ECOPETROL’s partial denunciation of the collective agreement because of the impossibility of applying it in the face of ADECO’s attitude throughout the initial stage of the negotiations.
24. 336. As to the passing of the resolution referring the matter to the Arbitration Tribunal, this was altogether in keeping with the law. USO, which at that time was ADECO’s representative in matters of collective bargaining, was informed of the resolution and, in accordance with the principles governing administrative proceedings, lodged an appeal against it which, as required by law, was ruled upon by the Ministry of Social Welfare. It is therefore unacceptable that the two trade unions operating in the company should now claim that they knew nothing about the content and scope of the administrative procedure that entails convening the Tribunal just because of a supposed mistake in notification.
25. 337. The Government reiterates, as it had in the previous examination of the case, that the Ministry of Social Welfare exercised its legal authority to designate an arbitrator for USO, in view of the latter’s unwillingness to appoint one itself. In support of the foregoing explanations, the Government refers to sections of the ruling handed down by the Labour Appeals Chamber of the Supreme Court of Justice, which heard the appeal lodged by ADECO to have the arbitration award annulled:
    • However, irrespective of the case law of the Court, which entitles it in such cases to disregard the whole issue, the fact here is that: on the one hand, as already stated, ADECO was represented by USO during the failed direct conciliation stage at which resort was had to Resolution No. 00382 of 25 March 2000, which requires the convening of the compulsory arbitration tribunal to examine and rule upon the collective labour dispute at ECOPETROL; on the other hand, USO subsequently refused to appoint an arbitrator to the tribunal as authorized by law. ... Consequently, if there had been any procedural irregularity at the direct conciliation stage, in the composition of the arbitration tribunal or in the notification of the award, it would not appear that USO had been unaware of the fact or that its right of defence (or that of ADECO that it was representing) was violated. That being so, the notification of ECOPETROL’s denunciation of the collective agreement, the terms of the direct conciliation stage, the decision to convene the arbitration tribunal to resolve the matter and the appointment of the arbitrators on the tribunal do not appear to have entailed any violation of the right of defence of the trade union acting at that stage of the collective dispute on its own and on ADECO’s behalf. It is therefore evident at this point that USO voluntarily chose on that occasion not to take part in the direct conciliation stage nor to designate an arbitrator for the compulsory arbitration tribunal, as the law entitled it to do, which at this point in the proceedings ....
26. 338. The Government adds that the highest ordinary court for labour matters made the following statement:
    • This Chamber has repeatedly deemed that the aspects of proceedings that could have been resolved through discussion early on in a dispute so as to reach a mutually acceptable decision prior to the submission of an appeal for annulment..., inasmuch as the examination that the Chamber is called upon to conduct in order to rule on the appeal presupposes that the proceedings have up to that point been correctly conducted, given that the parties have signified their acquiescence by not contesting any procedural issues prior to the case being brought before the Court – an attitude which in any case must be seen as indicating their acceptance of an overall resolution of the matter at hand, since they have remained silent as to any possible irregularities that may have occurred earlier on in the collective dispute....
27. 339. As to the arbitration award, the Government states that, as required under domestic legislation, the Arbitration Tribunal is competent to rule on the various aspects of a collective labour dispute and therefore has full authority to determine, in the light of the trade union organization’s list of demands and ECOPETROL’s partial denunciation, the conditions that will govern contracts of employment. That being so, it is logical that, given that responsibility, the Tribunal should rule on all the points involved in the collective dispute, on the understanding that it does so at all times in a spirit of economic coordination and social equilibrium. In the exercise of its legal prerogatives, ECOPETROL partially denounced the collective agreement of 2001–02, identifying clearly those aspects that it considered necessary to examine, with the sole purpose of rendering the company financially viable and thereby safeguarding the source of labour and fully respecting workers’ acquired rights.
28. 340. With regard to the Arbitration Tribunal’s rulings on the points raised by ADECO in the list of demands, the Government states that, according to information provided by the chief of ECOPETROL’s labour management unit, the demands that ADECO included in the list presented by USO were taken into account. As already mentioned on several occasions, USO was the company’s recognized counterpart during the negotiation process that ended in the convening of the Compulsory Arbitration Tribunal. ADECO’s demands were accordingly examined by the said Tribunal. It must be remembered that the arbitration award handed down by the Tribunal, as clarified and complemented by the ruling of 17 December 2003, was analysed by the Labour Appeals Chamber of the Supreme Court of Justice following the appeals for annulment presented by USO and ADECO and, in a ruling handed down on 31 March 2004, the Chamber resolved not to annul the decision to submit the matter to arbitration and instead to refer the case back to the arbitrators, with the requirement that within the space of ten days from the taking of that decision they reach agreement on those aspects of the partial denunciation of the collective agreement and of the list of demands that had not been explicitly resolved by the Compulsory Arbitration Tribunal. In a ruling handed down on 23 July 2004, the Tribunal accordingly complied with the instructions of the Labour Appeals Chamber of the Supreme Court of Justice and handed down a supplementary decision resolving the collective dispute between USO and ECOPETROL SA as a whole. In that decision, the Tribunal analysed and ruled on the points listed in its decision of 31 March 2004, which specifically included those raised by ADECO. It is abundantly clear from the foregoing that the trade union organization’s claim that the principles of collective bargaining were infringed is quite incongruous.
29. 341. With regard to the allegations concerning the offer of additional benefits solely to non-unionized personnel, the Government states that, according to ECOPETROL, labour relations in the company are governed by the common labour legislation contained in the Substantive Labour Code. The chief of ECOPETROL’s labour management unit (E) maintained in his statement that this was the case despite the changes that took place in the company in 2003. Consequently, except for the company’s president and the chief of its internal control office, ECOPETROL’s workers all have the status of public employees. However, as far as the rules and regulations governing their labour relations are concerned, they cease being considered as public employees and come instead under common law as it applies to individual persons, i.e. under the provisions of the Substantive Labour Code with its additions and amendments. By virtue of Agreement No. 01 of 1977, ECOPETROL introduced a benefits scheme for its management staff that differs from the arrangements agreed to in the collective agreements.
30. 342. As to the salary increases that ADECO claims it is not entitled to, the Government states that ECOPETROL cannot grant a raise unilaterally so long as the question of a salary increase is being negotiated collectively. When it ruled on the appeal lodged against the arbitration award, the court considered that the company’s decision on salary increases and its retroactive effect was in conformity with domestic legislation.
31. 343. With regard to Decree No. 3164 of 2003, the Government states that, under the system of checks and balances of domestic legislation, a trade union organization may apply to the administrative disputes body, which is the competent authority for examining such matters. The Government states moreover that the chief of the ECOPETROL’s labour management unit (E) said that the salary scale agreed to by the parties would nevertheless be applied to activities that do not appear in the comprehensive list of essential duties that are peculiar to the petroleum industries, as stipulated in Decree No. 3164 of 6 November 2003, due allowance being made for prevailing market conditions in the area and provided that the salaries are not below the legal minimum wage. With respect to social benefits, these must be at least the equivalent of those provided for in the Substantive Labour Code with its additions and amendments. The Government states that the said standard bears no relation to the collective agreement whose proceedings were challenged, since ECOPETROL SA has no authority and does not claim any competence to initiate administrative procedures of this nature (see article 189.11 of the Constitution and, specifically, section 3 of Legislative Decree No. 284 of 1957).
32. 344. With regard to the allegations that ECOPETROL SA encouraged resignations from trade unions by offering handouts, better working conditions and bonuses, the Government states that the allegations have not been duly proven by the trade union organization and describes them as too vague for it to be possible to investigate the matter properly. Besides, the complainant organization lodged an appeal for the protection of the workers’ trade union rights on this point, and its appeal was rejected. The ruling that was handed down by the Fourth Labour Court of Bogotá stated that, with regard to the infringement of freedom of association, there was no evidence that the defendant party had infringed those rights, given that it was perfectly evident that ADECO existed, and, furthermore, that there was no evidence that any of its members had been prohibited or inhibited from exercising their right of association by any of the defendants. As to the right to equal conditions and equal opportunity, here again the court refused to extend its protection to the workers, inasmuch as ECOPETROL and USO offered ADECO equal opportunity to negotiate and that there was no discrimination in terms of salaries, benefits and working conditions. The Government goes on to cite a number of court decisions testifying to the absence of any evidence of trade union discrimination:
    • – In a ruling handed down on 6 June 1997, the Labour Circuit Court of Barrancabermeja decided “not to extend its protection to the right of association, the right to establish trade unions or associations and the right to collective bargaining, since those constitutional rights of Elvidio Manuel Peñaredonda Gamez, a member of ADECO, have not been violated”.
    • – In a ruling handed down on 29 October 1997, the Labour Court of the Higher Tribunal of the Judicial District of Bogotá resolved in the first instance to deny in part the appeal for protection lodged as a transitory measure by Raúl Fernández Zafra on his own behalf against the Colombian Petroleum Company and the Ministry of Labour and Social Security. It considered that the case brought to protect “his fundamental rights to equal treatment and non-discrimination at work in decent and just conditions, freedom of association and collective bargaining from the actions and omissions of the defendant bodies, which clearly violated the right to freedom of association”, was not receivable. The statement in this decision regarding the right that the claimant considered to have been infringed is particularly significant.
    • – On 26 November 1997 the 20th Labour Circuit Court of Bogotá resolved “to reject as out of order the request for protection of constitutional rights brought against the Colombia Petroleum Company and the Ministry of Labour and Social Security by Carlos Julio Vera Martínez, a member of ADECO”, who was seeking protection of his rights to “equal treatment and non-discrimination at work, to work in decent and just conditions, to the right to equal pay and the maintenance of the value of his salary, to freedom of association and to collective bargaining”. In its resolution the court considered that there were other means of defence to which the complainant should resort, emphasizing that “the trade union can in a way be said to be hindering the administration of justice, and specifically the principle of procedural economy, inasmuch as, with its repeated appeals and in spite of their having been resolved by the higher courts, they persist in using this judicial machinery and thus to occupy the courts’ time even more”.
33. 345. The Government states that, according to information supplied by ECOPETROL, the company never denied its workers the right to freedom of association and that they are at liberty to exercise that right freely and to establish and join whatever organizations they wish.
34. 346. Regarding the claim that ECOPETROL SA has been reluctant to negotiate directly a new list of demands from ADECO, the Government points out that article 173 of the collective labour agreement concluded between USO and ECOPETROL on 11 June 2001 stipulates: “This agreement shall remain in effect for two years as from 1 January 2001 and shall be extended for a period of six months unless denounced in accordance with the law by either of the parties, or by both, within no less than 30 days prior to its expiration (paragraph 1). The agreement may also be denounced during the first 12 days of November 2002, in which case the corresponding list of demands must be presented along with the denunciation. In this event, negotiations on the list of demands shall begin on 7 January 2003 (paragraph 2). Should use not be made of the special provision contained in paragraph 1 of this article, the provisions of the main body of the article and of the law shall apply.”
35. 347. The Government recalls that the labour dispute that arose following the partial denunciation of the collective agreement of 2001–02 and the subsequent radicalization of the list of demands by USO on 28 November 2002 were referred for settlement to the Compulsory Arbitration Tribunal, which handed down the award of 9 December 2003 and its supplementary provisions of 17 December 2003 and 23 July 2004. As empowered by law, the Tribunal stipulated that the agreement was to be valid for two years from the date of the award, without pronouncing on the deadline set by the parties for its denunciation.
36. 348. The parties agreed that the agreement could be denounced “within no less than 30 days of its expiry”. Since neither of the parties denounced the agreement in 2002 prior to its expiration and the matter was not referred to the Compulsory Arbitration Tribunal, the company considered that it is the expiry date of the agreement that must be taken into account in the event of its denunciation. That being so, it was legally impossible for ECOPETROL SA to negotiate the list of demands presented by ADECO on 1 December 2005, since it was submitted after the date set for doing so, as ADECO was informed in communication ECP-000304 of 9 December 2005.
37. 349. The Government states that the extension of the agreement, the arbitration award and the supplementary rulings were legal inasmuch as ECOPETROL complied with the relevant rules, regulations and agreements. Moreover, collective bargaining – with the active participation of ADECO’s representatives – began in June 2006. In an administrative decision of 5 October 2006, the Ministry of Labour and Social Security ordered the convening of a Compulsory Arbitration Tribunal to examine and rule on the collective dispute between ECOPETROL SA and ADECO. The Government adds that, according to the chief of ECOPETROL’s labour management unit (E), the company complied with all legal provision in force with respect to the designation of the arbitrator and arbitration stage itself.
38. 350. With regard to point (h) of the recommendations concerning the conclusion of collective accords, the coordinator of trade union negotiations and relations (E) of ECOPETROL expressed the opinion that, by law, accords and agreements were part of the collective bargaining machinery designed to resolve and settle collective labour disputes and to prevent them leading to strikes.
39. 351. The objective of collective accords and agreements was “to determine the conditions governing labour contracts while they are in force”. In other words, they both have not only a standard-setting aspect but also a compulsory or binding aspect.
40. 352. Accords and agreements are governed by common juridical rules and regulations.
41. 353. Where accords and agreements differ is in the fact that the former are concluded between employers and non-unionized workers while the latter are negotiated between one or more employers or associations, on the one hand, and one or more trade unions or federations, on the other.
42. 354. Employers have every liberty to conclude collective accords with non-unionized workers and such accords may exist side by side with collective agreements.
43. 355. That said, according to the coordinator, ECOPETROL SA has not in fact concluded any such accords, which the Government says renders the last observation irrelevant.
44. 356. As to the steps that it is called upon to take, the Government adds that, as stated in ruling SU-342/95 handed down by the Constitutional Court: “When a collective accord and a collective agreement exist side by side within an enterprise, the rights of all workers – whether unionized or not – must be respected, particularly the right to equality both in salary and in other conditions of work; an employer may not, in the guise of any form of accord or agreement whatsoever, offer prerogatives or concessions that improve the conditions of some workers at the expense of others, where there is no objective reason for the difference in treatment.” The Constitutional Court has ruled on this point, as follows: “The court considers that the freedom of an employer to conclude collective accords that exist side by side with collective agreements, where this is legitimate in the light of the foregoing observations, is likewise bound by the provisions of the Constitution. … This being so, the court hereby establishes as a general rule that the freedom of employers to regulate labour relations by means of collective accords, when such accords exist side by side with collective agreements within the enterprise, is restricted or limited by the rights, values and principles as a whole that are recognized in the Constitution. In other words, the said freedom remains undiminished and protected by the Constitution and by the law but may not be exercised or used by an employer to infringe the fundamental rights of workers and of a trade union organization.”
45. 357. It can be taken from the above that employers in Colombia are entitled to enter into accords and agreements provided they respect the rights of unionized workers; otherwise, as stated earlier, those workers are entitled to express their disagreement by resorting to such legal machinery as exists for the initiation of appropriate action through the courts.
46. 358. With regard to the allegations presented by SINCOPETROL, the Government points out that the issues raised imply that the decisions taken in the course of the disciplinary proceedings referred to here entail an abuse of power. The Government adds that a disciplinary measure can only be contested if there has indeed been such an abuse, and that this must be proven by the complainant, as required by article 177 of the Code of Civil Procedure, which states: “It shall be for the parties concerned to provide evidence of an alleged infringement of the rules and regulations such as justifies the juridical outcome that they seek.”
47. 359. With regard to the latest allegations of the CUT according to which following other work stoppages on 18 and 24 March 2004 in the Barrancabermeja and Cartagena refineries, four official of USO’s Barrancabermeja section have been dismissed: Alirio Rueda (President), Gregorio Mejía (Vice-President), Juvencio Seija (General Secretary) and Fernando Coneo (Press and Public Relations Secretary), without respecting the principles of due process or their right to a proper defence, the Government indicates the following:
    • – these facts had taken place prior to the work stoppage of 22 April 2004;
    • – in the framework of an agreement signed to end the stoppage of 22 April, it was decided to nominate a special Barrancabermeja claims committee, in order to obtain information and decide on the four dismissals of Messrs Rueda, Mejía, Seija and Coneo, due to the stoppage of March.
    • – the decisions of the claims committee have the same value as those of a voluntary arbitral tribunal. After its establishment, the committee handed down its decisions on the dismissals. Thus, in its decision of 21 and 22 October 2004, it found in favour of the company and ruled that the dismissals had a just cause;
    • – the workers who were not in agreement with this decision, lodged an appeal for annulment to the High Court of the Judicial District of Bucaramanga, under section 141 of the Code of Labour Procedure. The court found in a final ruling that due process had been respected.

D. The Committee’s conclusions

1. 360. The Committee takes note of the new allegations presented and of the Government’s observations, including observations – which also reflect the views of the company concerned – on the recommendations formulated by the Committee in its previous examination of the case.
2. 361. With regard to point (a) of the Committee’s recommendations in its previous examinations of the case, the Committee recalls that it concerned the declaration as illegal of the strike called at ECOPETROL on 22 April 2004, on the grounds that ECOPETROL operates in the petroleum sector, which is considered by Colombian legislation (section 430(h) of the Substantive Labour Code) to be an essential service in which strikes are prohibited. The Committee had, however, recalled on this point that the said sector was not one of those considered to be essential services in the strict sense of the term (i.e. those whose interruption would endanger the life, personal safety or health of the whole or part of the population) and to justify restricting the exercise of the right to strike, and had accordingly requested the Government, in consultation with the representatives of workers’ and employers’ organizations, to take steps to make the necessary amendments to Colombia’s legislation (in particular section 430(h) of the Substantive Labour Code) so as to allow strikes in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service following full and frank consultations with the participation of the trade unions, the employers and the public authorities concerned. The Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee also recalls that what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 576 and 582].
3. 362. The Committee regrets that the Government’s reply does not contain substantial new elements. In fact, the Government notes once again that ECOPETROL is the only company in the sector that refines petroleum and explains why the petroleum sector is considered throughout the country as a service that is essential to its specific requirements and how a strike in that sector, in which moreover only one company operates, can affect transport at the national level and hence the safety of persons. Under these circumstances, the Committee must once again insist that the Government take steps without delay in consultation with the social partners, to amend the country’s legislation so as to permit the exercise of the right to strike in the petroleum sector. The Committee recalls the prospect of establishing a minimum service following negotiations with the trade union organizations, the employer and the public authorities concerned. The Committee requests the Government to keep it informed in this regard.
4. 363. With regard to point (b) of the recommendation the Committee recalls that it had requested the Government to take urgent steps to modify section 451 of the Substantive Labour Code so that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties involved. On this point the Committee notes the information supplied by the Government to the effect that it has brought before Congress Bill No. 190 of 2007, which transfers the authority to declare a strike illegal to the labour courts – part of the judiciary – which is entirely separate from the Executive. In this respect, the Committee notes with interest that according to information provided by the CUT in its communication of August 2008, Act No. 1210 has been adopted and as a result, a declaration of illegality should be pronounced by the labour courts.
5. 364. Under point (c) of the recommendations in its previous examination of the case, the Committee urged the Government to take steps to halt the dismissal of the 104 ECOPETROL workers following the strike on 22 April 2004 and to keep it informed in particular of the decision reached by the Council of Judicature in respect of the action for protection of their constitutional rights (tutela) brought by the workers at ECOPETROL SA.
6. 365. On this point the Committee notes the Government’s statement that the company acted in conformity with domestic legislation guaranteeing due process and that the initiation and conduct of the disciplinary procedure before the competent authority are the legal consequence of enforcing the arbitration award handed down on 21 January 2005 by the Ad Hoc Voluntary Arbitration Tribunal, which explicitly ordered the reinstatement of certain workers in accordance with the Single Code of Discipline. The Committee also notes the Government’s statement that if the company disregarded the rules and regulations it would be guilty of reneging on its obligations and that, when the officials responsible for discipline at ECOPETROL SA reach decisions, they take no account of whether or not workers belong to a trade union but only of their status as public officials. It cannot therefore be maintained that such decisions infringe workers’ right of freedom of association.
7. 366. The Committee observes that the Government has sent no information on the action for protection of their constitutional rights (tutela) lodged by the workers with the Council of the Judicature.
8. 367. The Committee reiterates the principles to which it drew attention in its previous examination of the case and once again urges the Government to take steps to stop the effects of the decision to dismiss 104 workers at ECOPETROL SA for taking part in the 2004 strike. The Committee also requests the Government to keep it informed of the outcome of the action for protection of their constitutional rights (tutela) lodged by the workers with the Council of the Judicature.
9. 368. With regard to point (d) of the recommendations concerning the legal proceedings still pending in relation to the seven trade union leaders dismissed as a consequence of the 22 February 2004 strike, the Committee recalls that it requested: in the case of Mr Quijano, considering that his dismissal was the result of the work stoppage being declared illegal on the basis of legislation that does not conform to the principles of freedom of association, that the Government ensure that he is reinstated without delay and, if reinstatement is not possible, that he is fully compensated; that the Government keep the Committee informed of the outcome of the appeals still pending concerning the three other dismissed trade union officials; and, in the particular case of Mr Ibarguén, that he be reinstated on a temporary basis as ordered by the judicial authority until a ruling has been issued concerning the appeal. The Committee notes that, according to the Government, the reinstatement of dismissed workers and the payment of compensation can only be determined through judicial channels, i.e. when a court order has been handed down to that effect. It further notes that the Government states once again that Quijano Lozada has exhausted the possibilities of appeal to the judicial bodies, which ruled against him both in the ordinary proceedings and in the matter of the action for protection of his constitutional rights (tutela). Nevertheless, bearing in mind that Mr Quijano’s dismissal was the result of his participation in a work stoppage that had been declared illegal on the basis of legislation that does not conform to the principles of freedom of association, the Committee urges the Government once again to take the necessary steps for him to be reinstated and, if reinstatement is not possible, that he is fully compensated. The Committee observes that the Government does not mention the appeals under way concerning the three other trade union officials who have been dismissed (Mejía Salgado, Suárez Amaya and Mr Ibarguén), particularly that concerning Mr Ibarguén whose reinstatement was ordered by the Sixth Labour Circuit Court of Cartagena. In these circumstances, the Committee requests the Government once again to keep it informed of the outcome of the appeals concerning these trade union officials and, in the case of Mr Ibarguén, to take steps to have him reinstated on a temporary basis as ordered by the judicial authority until his appeal has been ruled upon.
10. 369. The Committee notes the allegations presented by the new complainant, SINCOPETROL concerning the dismissal, without lifting their trade union immunity, of union officials Ariel Corzo Díaz, Moisés Barón Cárdenas, Alexander Domínguez Vargas, Héctor Rojas Aguilar, Wilson Ferrer Díaz, Fredys Jesús Rueda Uribe, Fredys Elpidio Nieves Acevedo, Genincer Parada Torres, Braulio Mosquera Uribe, Jimmy Alexander Patiño Reyes, Jair Ricardo Chávez, Ramón Mantuano Urrutia, Germán Luís Alvarino, Sergio Luís Peinado Barranco, Olga Lucía Amaya and Jaime Pachón Mejía, in connection with the events of 22 April 2004, and without observing due process. The Committee notes that the Government states that the allegations do not contain sufficient evidence but does not refer to the dismissal of the officials without their trade union immunity being lifted. In these circumstances, recalling the principle whereby one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter, except of course for serious misconduct [see Digest op. cit., fifth edition, 2006, para. 804], the Committee requests the Government to carry out an investigation into these allegations without delay and, if it is found that the union officials were in fact dismissed without their trade union immunity being lifted (as required by law), to take steps to have them immediately reinstated. The Committee requests the Government to keep it informed in this respect.
11. 370. With regard to point (e) of the recommendations, the Committee recalls that it requested the Government to supply information without delay on the charges and the status of the proceedings against Jamer Suárez and Edwin Palma, USO members who the complainants say were arrested on 3 June and 11 June 2004, respectively, on charges of conspiracy to commit offences and terrorism, and to ensure that the procedure respected all the guarantees. The Committee notes the information provided by the Government that the National Directorate of the Attorney-General has reported that the investigation in connection with Jamer Suárez was closed on 25 August 2005. In the case of Edwin Palma, the Office of the Attorney-General has asked for more specific details. On this point, the Committee recalls that in a previous examination of the case the Government had informed it that Edwin Palma was “in custody in the city of Barrancabermeja” [see 343rd Report, para. 480]. The Committee requests the Government, on the basis of that information, to take the necessary steps without delay to have the Attorney-General report on Mr Palma’s whereabouts and legal status.
12. 371. With regard to point (f) of the recommendation concerning the allegations presented by the SINDISPETROL, which refer to the dismissal of the founding members of the trade union five days after it had been established and to the pressure exerted on other members of the executive body, which resulted in their resigning their trade union posts, the Committee had requested the Government to keep it informed of the administrative labour investigation initiated by the Special Directorate of Barrancabermeja. The Committee notes the information supplied by the Government to the effect that the investigation eventually gave rise to resolution No. 00018 of 27 March 2007 issued by the Labour Inspector of the Territorial Directorate of the Special Labour Office of Barrancabermeja, who considered that the issues involved should be resolved by the judicial authority and therefore refrained from imposing any penalty on the firms under contract to ECOPETROL SA. The complainants were then free to appeal to the ordinary labour court. The Committee notes that the said resolution is final, since the workers concerned have not appealed to the judicial authority.
13. 372. With regard to point (g) of the recommendations, the Committee recalls that it had requested the Government to keep it informed regarding the outcome of the negotiations between USO and ECOPETROL SA, to confirm the recent conclusion of a collective agreement and to take the necessary measures to allow ADECO to bargain collectively with the enterprise on behalf of its members. On this point the Committee takes note of ADECO’s new allegations that its demands were ignored during the collective negotiations between ECOPETROL SA and USO which resulted in the arbitration awards of 9 and 17 December 2003 and 23 July 2004, that there were a number of procedural irregularities during the proceedings, that ECOPETROL refused to negotiate the list of demands presented by ADECO in December 2005 and that another Compulsory Arbitration Tribunal was convened when a new list of demands was presented in May 2006. The Committee notes ADECO’s allegations that, unlike other workers, its members have not had any pay increase since 2003.
14. 373. On this point the Committee notes with interest the Government’s indication that, according to information supplied by ECOPETROL’s coordinator for trade union negotiations and relations, the collective dispute with USO resulted in the conclusion of a collective agreement covering the period from 9 June 2006 to 8 June 2009, and that the company has signed an annex to the agreement with SINDISPETROL.
15. 374. With regard to the latest allegations of the CUT according to which following other work stoppages on 18 and 24 March 2004 in the Barrancabermeja and Cartagena refineries, four official of USO’s Barrancabermeja section have been dismissed: Alirio Rueda (President), Gregorio Mejía (Vice-President), Juvencio Seija (General Secretary) and Fernando Coneo (Press and Public Relations Secretary), without respecting the principles of due process or their right to a proper defence, the Committee takes note of the information provided by the Government to the effect that: (1) in the framework of an agreement signed to end the stoppage of 22 April (the latest stoppage which is the main object of this case), it was decided to nominate a special Barrancabermeja claims committee, in order to obtain information and decide on the four dismissals of Messrs Rueda, Mejía, Seija and Coneo, due to the stoppage of March; (2) in its decision of 21 and 22 October 2004, the committee found in favour of the company and ruled that the dismissals had a just cause; (3) the workers who were not in agreement with this decision, lodged an appeal for annulment to the High Court of the Judicial District of Bucaramanga, under section 141 of the Code of Labour Procedure. The court found in a final ruling that due process had been respected.
16. 375. Regarding the collective bargaining with ADECO and the new allegations presented by it, the Committee notes that the Government, commenting on the refusal to discuss the list of demands presented by the trade union organization during the 2002–04 bargaining process, states that the union organization had agreed to be represented by the USO and that the appeals lodged by ADECO with the Labour Appeals Chamber of the Supreme Court of Justice to have the procedure annulled because of alleged procedural irregularities were rejected. As to the points raised in the list of demands, the Supreme Court decided to refer the issues back to the arbitrators for a ruling. The Committee notes the Government’s statement that a supplementary arbitration award was accordingly handed down on 23 July 2004 which took ADECO’s demands into account. The Committee notes the company’s rebuttal of ADECO’s version and its statement that the latter’s demands were included in the list of demands presented by USO and were duly taken into account. The Committee observes that the new collective agreement entered into by USO will also apply to the members of ADECO without any discrimination.
17. 376. As to the allegation that there have been no pay increases, the Committee notes that the Government states that an Arbitration Tribunal was convened in 2006 to consider ADECO’s list of demands and on 2 October 2007 handed down a ruling that has not yet been enforced because of the appeal against it lodged by the company. The Committee requests the Government to keep it informed of the outcome of the said appeal.
18. 377. Regarding ADECO’s allegation that, by virtue of Decree No. 3164 of 2003, several categories of ECOPETROL’s workers are excluded from the collective agreements, the Committee notes the Government’s statement that the trade union organization is at liberty to lodge an appeal against the decree with the administrative disputes body and that in any case the salary scale agreed to by the parties will be applied to those workers. The Committee requests the Government to guarantee the right to collective bargaining of all ECOPETROL’s workers who, by virtue of the said decree, are not covered by the collective agreements that are in force in the company.
19. 378. With regard to point (h) of the recommendations concerning the conclusion, with non-unionized workers or with workers who relinquish their union membership, of collective accords that offer better terms than the collective agreements, the Committee notes ADECO’s new allegations which likewise state that the company offers better terms to non-unionized workers and that this discourages workers from joining trade unions. The Committee also notes the Government’s statement that Colombian legislation does make provision for collective accords with non-unionized workers but that no such accord has been concluded in ECOPETROL. As to ADECO’s allegations that workers are being offered better terms and working conditions to discourage them from joining trade unions, the Committee notes that, according to the Government, the organization lodged an appeal for protection of its trade union rights in this connection in 1997 and that the appeal was rejected by the Fourth Labour Court of Bogotá on the grounds that there was not enough evidence that the workers’ right of association had been restricted. The Government also refers to other court decisions in 1997 that similarly rejected appeals lodged by ADECO for protection of workers’ constitutional rights (tutela). The Committee observes, however, that those decisions date back to 1997 whereas the allegations refer to subsequent developments. In these circumstances, the Committee requests the Government to carry out as a matter of urgency an investigation to determine, on the basis of full information whether ECOPETROL employees who are not unionized are offered individually or otherwise benefits, better working conditions or bonuses to encourage them to resign from their trade union. The Committee requests the Government to keep it informed in this regard.
20. 379. With regard to the new allegations presented by ADECO concerning the refusal of Chevron Petroleum Company to bargain collectively with it, the appointment of a Compulsory Arbitration Tribunal and the appeals against the revoking of the arbitration decision lodged with the Supreme Court of Justice by the company and by ADECO, the Committee observes that the Government has not sent its observations on the subject and requests it to do so without delay, particularly with respect to the outcome of the appeal before the Supreme Court of Justice.

The Committee's recommendations

1. 380. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to adopt the following recommendations:
   • (a) Regarding the declaration as illegal of a strike called at ECOPETROL on 22 April 2004, the Committee once again urges the Government to take the necessary steps to amend the country’s legislation without delay in consultation with the social partners, (in particular section 430(h) of the Substantive Labour Code) so as to allow the exercise of the right to strike in the petroleum sector, with the prospect of establishing a minimum service following negotiations with the trade union organizations, the employer and the public authorities concerned. It requests the Government to keep it informed in this regard.
   • (b) The Committee once again urges the Government to take steps to stop the effects of the decision to dismiss 104 employees at ECOPETROL SA for taking part in the 2004 strike and to keep it informed of the outcome of the action for protection of their constitutional rights (tutela) brought by the workers before the Council of the Judicature.
   • (c) With regard to the dismissal of Quijano Lozada, and bearing in mind that his dismissal for participating in a work stoppage that had been declared illegal was based on legislation that does not conform to the principles of freedom of legislation, the Committee once again calls on the Government to take steps to have him reinstated and, if this is no longer possible, to ensure that he is fully compensated. The Committee also requests the Government to keep it informed of the outcome of the judicial appeals under way that were lodged by the three other trade union officials who were dismissed (Mejía Salgado, Suárez Amaya and José Ibarguén) and, in the case of Mr Ibarguén, to take steps to have him reinstated on a temporary basis, as ordered by the judicial authority, until his appeal has been ruled upon.
   • (d) With regard to the allegations presented by SINCOPETROL concerning the dismissal of union officials Ariel Corzo Díaz, Moisés Barón Cárdenas, Alexander Domínguez Vargas, Héctor Rojas Aguilar, Wilson Ferrer Díaz, Fredys Jesús Rueda Uribe, Fredys Elpidio Nieves Acevedo, Genincer Parada torres, Braulio Mosquera Uribe, Jimmy Alexander Patiño Reyes, Jair Ricardo Chávez, Ramón Mantuano Urrutia, Germán, Luís Alvarino, Sergio Luís Peinado Barranco, Olga Lucía Amaya and Jaime Pachón Mejía, in connection with the work stoppage of 22 April 2004, the Committee requests the Government to carry out an investigation into these allegations without delay and, if it is found that these officials were in fact dismissed without their trade union immunity having been lifted, to take steps for their immediate reinstatement. The Committee requests the Government to keep it informed in this regard.
   • (e) With regard to Edwin Palma, who the USO states has been held in custody since 11 June 2004 on charges of conspiracy to commit offences and terrorism and who the Government has reported is in custody in the city of Barrancabermeja, the Committee requests that, on the basis of that information, the Government take steps without delay to have the Attorney-General report on Mr Palma’s whereabouts and legal status.
   • (f) With regard to the allegations presented by ADECO concerning ECOPETROL’s refusal to enter into collective bargaining, the Committee requests the Government to keep it informed of developments in the appeal lodged by the company against the decision handed down on 2 October 2007 in connection with the list of demands submitted by ADECO in May 2006.
   • (g) With regard to ADECO’s allegations that, by virtue of Decree No. 3164 of 2003, several categories of employees of ECOPETROL SA are excluded from the provisions of collective agreements, the Committee requests the Government to guarantee the right to collective bargaining of all ECOPETROL’s workers who, by virtue of the said decree, are not covered by the collective agreements that are in force in the company.
   • (h) The Committee requests the Government to carry out as a matter of urgency an investigation into the new allegations presented by ADECO to determine, on the basis of full information, whether ECOPETROL employees who are not unionized are offered individually or otherwise benefits, better working conditions or bonuses to encourage them to resign from their trade union, and to keep it informed in this regard.
   • (i) With regard to the new allegations presented by ADECO concerning the refusal of Chevron Petroleum Company to bargain collectively with it, the appointment of a Compulsory Arbitration Tribunal and the appeal to have the arbitration award revoked that was lodged with the Supreme Court of Justice by both the company and the trade union organization, the Committee observes that the Government has not sent its observations on the subject and requests it to do so without delay, particularly with respect to the outcome of the appeal before the Supreme Court of Justice.