Definitive Report - Report No 364, June 2012

Case No 2822 (Colombia) - Complaint date: 22-JUL-10 - Closed

Allegations: The complainant alleges the violation of its collective bargaining rights following the refusal of the Alpina Productos Alimenticios SA company to negotiate with regard to a list of demands

1. 432. The complaint is contained in a communication from the National Trade Union of Workers of the Food and Fat Products Industry (SINTRAIMAGRA) dated 22 July 2010.
2. 433. The Government sent its observations in a communication dated 10 January 2012.
3. 434. 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. The complainant’s allegations

1. 435. In its communication dated 22 July 2010, SINTRAIMAGRA indicates that on 2 June 2009 it submitted a list of demands to the Alpina Productos Alimenticios SA (Alpina food products) company but, to date, the company has not convened negotiations with the trade union as required by law. Once it had been informed of the submission of the list of demands by SINTRAIMAGRA, the company signed a collective agreement on 3 June with SINTRALPINA, the primary trade union at Alpina Productos Alimenticios SA. On the following day, the company sent a letter to SINTRAIMAGRA containing several points which were not in line with the law or with international Conventions on collective bargaining, thereby failing to recognize the union’s right to engage in collective bargaining.
2. 436. The complainant states that it sent an official letter, dated 8 June 2009, to the Ministry of Social Security requesting it to instruct the legal representative of the company to send a written convocation to the union to launch the direct settlement phase prescribed by law. The complainant states that, on 20 August 2009, administrative proceedings were conducted at the labour inspectorate, in which the union confirmed the facts and the company stated that the six workers who submitted the list of demands on behalf of SINTRAIMAGRA had concluded a collective agreement on 2 June 2009 on behalf of SINTRALPINA, and so they could not instigate a new collective labour dispute. The Ministry of Social Security, by a decision dated 18 September 2009 issued by the Coordinating Committee of the Prevention, Inspection, Supervision and Monitoring Group of the Territorial Directorate of Cundinamarca, imposed a fine on the company of 2,484,500 Colombian pesos (COP), equivalent to five times the legal minimum wage, for each day of delay in starting the negotiations, counting from the sixth working day following the date of submission of the list of demands and until such time as the negotiations were launched.
3. 437. The complainant indicates that the company filed an appeal and the Ministry of Social Security, by a decision dated 7 March 2010 issued by the Coordinating Committee of the Prevention, Inspection, Supervision and Monitoring Group of the Territorial Directorate of Cundinamarca, rescinded the decision of 18 September 2009 and exonerated the company. The complainant in turn filed an appeal. Since the submission of the list of demands by the union on 2 June 2009, the Ministry of Social Security has, to date, not dealt with the request from SINTRAIMAGRA since it has not taken the relevant measures that are prescribed by law.
4. 438. The arguments of the Coordinating Committee for rescinding the administrative act which gave rise to the appeal were as follows: (1) there cannot be more than one collective labour agreement in an enterprise; (2) the aforementioned fact is the basis for the enterprise’s refusal to negotiate with regard to the list of demands submitted by SINTRAIMAGRA; (3) an official letter dated 2 November 2007 from the Legal and Legislative Support Office of the Ministry of Social Security concludes that the obligation to negotiate with respect to a list of demands exists when the list is submitted in due time; (4) SINTRAIMAGRA must wait until 2012 to submit a list of demands to the enterprise since the latter already signed a collective agreement with SINTRALPINA which is valid until June 2012; and (5) the list of demands submitted by SINTRAIMAGRA was not submitted in due form, and so the enterprise is not obliged to negotiate with respect to that list of demands.
5. 439. The complainant emphasizes that the list of demands submitted by SINTRAIMAGRA was received by the company before an agreement was reached with SINTRALPINA, and the company has an obligation to negotiate with regard to the list of demands, which was submitted in due time by the trade union, since the company had not signed a collective agreement with the other union at the date when the list was submitted.
6. 440. The complainant recalls that the Constitutional Court issued ruling No. C-063 of 2008, according to which minority trade unions have the constitutional right to require the employer to engage in negotiations when it receives lists of demands from its workers:
   • The absolute prohibition on minority trade unions to engage in collective bargaining does not conform to the principles of reasonableness or proportionality, and not only violates the right to collective bargaining but also the right to freedom of association, the cornerstone of workers’ rights. The right to collective bargaining must be enjoyed by all categories of trade unions, in conformity with ILO Convention No. 154, which obliges States parties to adopt measures to promote collective bargaining, even though it does not specify which measures and gives the competent government bodies considerable freedom of action as regards the implementation of such proposals. The unreasonable and disproportionate restriction placed on minority trade unions regarding collective bargaining has no constitutional justification.

B. The Government’s reply

1. 441. By a communication dated 10 January 2012, the Government forwards information from the company to the effect that: (1) it respects the rights of association and bargaining, as borne out by the presence of trade unions in the company for more than 30 years; and (2) the company contains several trade unions, namely the SINTRALPINA, the SINTRAIMAGRA, the Alpina Trade Union of Workers (USTA), the Trade Union of Food Workers (UTA), the Trade Union of Flour Processing Industry Workers of Santander (USINTRAPROHASAN), and the National Union of Food and Beverage Workers (SINTIGAL).
2. 442. The company states that further to submission of the list of demands by SINTRALPINA, negotiations were initiated on 1 June 2009 between the company and SINTRALPINA with respect to the collective labour agreement for 2009–12, which was concluded on 3 June 2009 as a result of an organized and effective bargaining process, thus benefiting all members of the organization over the following three years. Moreover, according to the company, the membership of SINTRALPINA included six SINTRAIMAGRA members, simultaneous affiliation to more than one union being possible and, on 2 June 2009, SINTRAIMAGRA submitted a list of demands on behalf of six members who also belonged to SINTRALPINA at the time.
3. 443. In view of the fact that the company had signed a collective agreement with SINTRALPINA, which also benefited the members of SINTRAIMAGRA, the company informed the latter union of this situation, citing the provisions of the Labour Code, according to which it was not possible to be represented in two lists of demands or to derive benefits simultaneously from two separate collective agreements, and the company points out that, since the union did not raise any objection to the list of demands, it understood that the workers had been represented in the negotiations, an agreement had been reached, and hence the dispute had been settled. The company states that the negotiations requested by SINTRAIMAGRA were then initiated further to various legal discussions and the subsequent decision of 29 July 2010 from the Ministry of Social Security ordering negotiations to be launched. The company complied immediately with the order and launched the direct settlement procedure with SINTRAIMAGRA on 11 June 2010, completing the bargaining process on 30 August 2010, and signing the collective agreement between the company and SINTRAIMAGRA.
4. 444. The Government confirms that the letter from the company, and the actions of the Ministry aimed at safeguarding the right to collective bargaining, showed that the right of SINTRAIMAGRA to engage in collective bargaining was upheld and that the Ministry, within the scope of its power to guarantee such rights, acted in conformity with the law and took action to initiate the negotiation process with SINTRAIMAGRA, a situation which was complied with and respected by the company.

C. The Committee’s conclusions

1. 445. The Committee notes that, in the present case, the complainant alleges the violation of its right to engage in collective bargaining following the refusal of the Alpina Productos Alimenticios SA (Alpina food products) company to negotiate with regard to a list of demands.
2. 446. The Committee notes the following statements from the complainant: (1) on 2 June 2009 the complainant submitted a list of demands to the company; (2) on 3 June the company signed a collective agreement with the primary trade union SINTRALPINA; (3) the Ministry of Social Security, by a decision of 18 September 2009, imposed a fine on the company of COP2,484,500 for each day of delay in starting the negotiations; (4) the company filed an appeal and the Ministry of Social Security rescinded the decision that was challenged and exonerated the company; (5) the complainant in turn filed an appeal; and (6) the list of demands submitted by SINTRAIMAGRA was received by the company before an agreement was reached with SINTRALPINA and the company had an obligation to negotiate with regard to lists of demands submitted in due time.
3. 447. The Committee notes that the Government forwarded observations from the company, which emphasized the following points: (1) further to the submission of the list of demands by SINTRALPINA on 1 June 2009, negotiations were launched between the company and SINTRALPINA with respect to the collective labour agreement for 2009–12, which was concluded on 3 June 2009; (2) the membership of SINTRALPINA included six workers who were also members of SINTRAIMAGRA, simultaneous affiliation to more than one union being possible and, on 2 June 2009, SINTRAIMAGRA submitted a list of demands on behalf of six members who also belonged to SINTRALPINA at the time; (3) the company informed SINTRAIMAGRA that it was not possible to be represented in two different lists of demands and to derive benefits simultaneously from two separate collective agreements, and the trade union did not raise any objection to the list of demands; (4) the company understood that the workers had been represented in the negotiations and that an agreement had been reached, thereby settling any dispute; and (5) further to various legal discussions requested by SINTRAIMAGRA, the Ministry of Social Security ordered negotiations to be launched, the bargaining process then being completed on 30 August 2010 with the signature of a collective agreement between the company and SINTRAIMAGRA.
4. 448. The Committee recalls the importance of collective bargaining for maintaining the harmonious development of labour relations and welcomes the signature of a collective agreement between the company and SINTRAIMAGRA. Noting that the complainant alleged the violation of its right to engage in collective bargaining following the employer’s refusal to negotiate with regard to a list of demands, and that the dispute was subsequently settled through negotiations, the Committee invites the Governing Body to decide that this case does not call for further examination.

The Committee’s recommendation

1. 449. Noting that the complainant alleged the violation of its right to engage in collective bargaining following the employer’s refusal to negotiate with regard to a list of demands, and that the dispute was subsequently settled through negotiations, the Committee invites the Governing Body to decide that this case does not call for further examination.