Informe definitivo - Informe núm. 399, Junio 2022

Caso núm. 3260 (Colombia) - Fecha de presentación de la queja:: 19-ENE-17 - Cerrado

Allegations: The complainant organizations allege a series of acts that are contrary to freedom of association and collective bargaining within the Bogota Telecommunications Company

1. 90. The complaint is contained in a communication from the Single Confederation of Workers of Colombia (CUT) dated 19 January 2017 and a communication from the Bogota Telecommunications Company Workers’ Union (SINTRATELEFONOS) dated 7 June 2018.
2. 91. The Government of Colombia sent its observations on the allegations in communications dated 5 December 2018, October 2019 and 29 April 2022.
3. 92. 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) and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 93. In their communication of 19 January 2017, the CUT and SINTRATELEFONOS allege that, on 23 June 2016, 25 unionized workers were dismissed by the Bogota Telecommunications Company (hereinafter the enterprise). They allege that these dismissals are arbitrary in nature, as they are based on false claims about the high payroll cost and that they have been accompanied by reprisals against workers who opposed the sale of the enterprise. They claim that the dismissed workers include long-serving workers, trade union activists, as well as mothers who are the breadwinners in the family.
2. 94. The complainants then refer to the situation prior to the dismissals and state that: (i) the enterprise, which provides public telecommunications services, is a decentralized entity of the Bogota district government; (ii) for a number of years, several city administrations have tried to sell the enterprise to foreign capital; (iii) the enterprise has taken an anti-union stance, encouraging workers through emails to withdraw from the benefits of the collective agreement in order to join the enterprise’s benefits plan; (iv) the enterprise has also sought to weaken the union by outsourcing labour; (v) the above-mentioned dismissals in 2016 were preceded by numerous other dismissals (75) since 2013, affecting mostly unionized workers; and (vi) on 19 June 2015, a request to facilitate a dialogue on the above-mentioned dismissals and restrictions of rights was filed with the Special Committee for the Handling of Conflicts referred to the ILO.
3. 95. The complainants then assert that, following the change in the enterprise’s president in 2016: (i) there was an increase in dismissals, recourse to service contracts and offers to join the enterprise’s benefits plan to the detriment of the collective agreement; (ii) the enterprise’s development plan submitted to the municipality on 29 April 2016 referred to the alternative option of selling the enterprise; (iii) on 20 June 2016, the union submitted a request for union leave to hold a general assembly on 23 June to discuss the new list of demands; and (iv) on 23 June 2016, in conjunction with the general assembly, the enterprise dismissed 19 unionized workers without just cause, so as to create fear among the workers and encourage them to leave the union.
4. 96. The complainants go on to allege the enterprise’s bad faith in the collective bargaining process with SINTRATELEFONOS. They state in this regard that: (i) on 24 June 2016, the union submitted its list of demands to renew the enterprise’s collective agreement; (ii) on 30 June 2016, the enterprise denounced the existing collective agreement; (iii) it has not been possible to negotiate the list of demands submitted by the union because the enterprise demanded that the negotiations be based on the denunciation of the existing agreement without considering the workers’ acquired rights; and (iv) the enterprise’s use of labour intermediation violates the existing collective agreement.
5. 97. In light of the above, the complainants request the reinstatement of the workers dismissed on 23 June 2016, respect for acquired rights in the negotiation of future collective agreements, and for the labour administration to conduct proper investigations into the enterprise’s alleged actions.
6. 98. In a communication dated 7 June 2018, SINTRATELEFONOS requests that the content of a prior communication dated 29 May 2015 be incorporated into the present case. The complainants allege in the same communication: (i) mass dismissals of workers affiliated to the union between 2013 and 2016, including the organization’s adviser, Fernando Alberto Osma Pachón; (ii) the judicial complaint filed by the enterprise against the complaints committee and the union’s executive committee because of a work stoppage deemed to be unjustified on 7 and 21 November 2013; and (iii) several violations of the existing collective agreement (overcrowding of workers working on the Fiber to the Home (FTTH) project, discrimination against workers with health problems, outsourcing of the enterprise’s work to contractors and an anti-union attitude by encouraging workers to join the enterprise’s benefits plan to the detriment of the collective agreement).

B. The Government’s reply

1. 99. In its communication of 5 December 2018, the Government first refers to the enterprise’s reply to the complainants’ allegations. First of all, the enterprise denies the anti-union nature of the dismissals that took place between 2013 and 2016 and states in this regard that: (i) it made changes to its workforce for reasons of competitiveness and efficiency, given that it has the legal power to terminate contracts with the payment of the severance pay determined by law or by agreement; (ii) the dismissals in the past few years, including those carried out on 23 June 2016, were applied both to unionized staff – which is the majority of the total workforce – and to non-unionized workers; (iii) the alleged strategy of collective dismissals to weaken the trade union has no factual or legal basis; (iv) in Decisions Nos 3304 and 3402 of 22 and 28 November 2016, the Ministry of Labour’s Conflict Resolution and Conciliation Group in the Bogota Territorial Directorate cleared the enterprise of the allegations brought against it concerning four workers dismissed on 23 June 2016 who chose to chain themselves to their work stations finding that there was no evidence to show that the trade union had been affected, or that the dismissed workers had leadership roles within the union, and also because it was clear that the dismissals did not affect the right to freedom of association or the ability to organize; (v) it is false to claim that the dismissal of 19 workers on 23 June 2016 was intended to hinder the holding of the union assembly scheduled for the same day, given that the request to hold this assembly was submitted by the union on 20 June 2016, and authorized on 21 June 2016, in accordance with the provisions of the agreement and as requested by the union; (vi) all the dismissals carried out were in accordance with the provisions of legislation and the collective agreement, as demonstrated by the rulings handed down by the relevant courts on the legal action brought by eight of the dismissed workers on 23 June 2016, which, both at first and second instance, held that the enterprise’s actions were fully in accordance with the law; (vii) Mr Osma Pachón’s situation was referred to and clarified before the Special Committee for the Handling of Conflicts referred to the ILO, where it was stated that, if the case had been resolved in accordance with the provisions of Colombian labour law, there was no need to make a recommendation in this regard; and (viii) the information indicating that the enterprise had encouraged workers to leave the union is not supported by any evidence. The absence of anti-union discrimination is demonstrated by the fact that the union, which has been in the enterprise for over eighty years, has largely been the majority union for many years without any substantial change in the size of its membership.
2. 100. Regarding the allegations of bad faith in collective bargaining processes, the enterprise states that Colombian labour legislation, pursuant to articles 478 and 479 of the Labour Code, provides for the possibility of denouncing collective bargaining agreements within 60 days prior to their expiry, either by the union(s) signatory to the agreement or the employer. In such cases, the collective bargaining process must deal both with the list of demands submitted by the union(s) and with the denunciation of the agreement by the employer. In this regard, the enterprise states that: (i) within the 60 days prior to the expiry of the agreement that was due to remain in force until 30 June 2016, it denounced some articles of the agreement in order to regulate and clarify their content; (ii) the SINTRATELEFONOS representatives at that meeting demanded, as a condition for initiating the direct settlement stage, that the enterprise withdraw the denunciation of the agreement, a position that it persistently held for more than 20 meetings before this stage, which lasted until the end of 2017; (iii) finally, on 21 November 2017, this stage was initiated, including both the union’s list of demands and the enterprise’s denunciation as the subject of the negotiations process; and (iv) as a result of the negotiations process, an agreement was finally reached between the parties on 7 March 2018, and the collective bargaining agreement was signed, to remain in force until 31 December 2020.
3. 101. The enterprise states, lastly, that the possibility of selling, or not, of an enterprise is an issue that goes beyond the ILO’s remit and that the potential sale of the enterprise, or the Capital District’s shareholding in the enterprise, would have no impact on the union’s existence, as Colombian law provides that, in such cases, employer substitution rule comes in, which is also included in the agreement, requiring the new employer to take responsibility for all of the enterprise’s labour obligations.
4. 102. The Government then provides its own observations on the allegations in the present case. The Government states, first of all, that the courts rejected the legal actions brought by eight of the workers dismissed on 23 June 2016 who claimed at the time that the worker dismissals disregarded the due process set out in the collective labour agreement and violated freedom of association. It also notes that the dismissal in 2015 of a member of the SINTRATELEFONOS executive committee who was subject to disciplinary proceedings was authorized by the labour judges. The Government goes on to state that all the investigations requested by the trade union into possible violations of freedom of association were duly carried out by the Ministry of Labour.
5. 103. Regarding the enterprise’s alleged bad faith with respect to collective bargaining, the Government states that, according to the documents provided by the enterprise, the direct settlement stage began on 21 November 2017 and ended on 7 March 2018, with the signing of the 2018–20 collective agreement, a document that was deposited with the Ministry of Labour. In light of the above, it is noted that the trade union and the enterprise were able to reach agreements that were embedded in the collective agreement; this issue has therefore been resolved. Lastly, the Government states that: (i) SINTRATELEFONOS apparently has approximately 1,790 members out of 2,713 workers in the enterprise, which shows that the exercise of freedom of association is not being violated by the enterprise; and (ii) labour intermediation is regulated by Colombian legislation that provides that it is conducted under conditions ensuring respect for labour rights.
6. 104. In a second communication in October 2019, the Government provides additional observations from the enterprise in response to SINTRATELEFONOS’ second communication. The enterprise again states that the dismissals that have taken place over the past few years in the enterprise have included both unionized and non-unionized workers, including at management level, and, in general, workers who are not beneficiaries of the collective agreement, the latter representing a much smaller percentage in the enterprise than those who are union members. The enterprise states that it follows from the above that the complainants’ claims of an alleged strategy of collective dismissals to allegedly weaken the trade union have no factual or legal basis. The enterprise also reaffirms that the dismissals carried out by the enterprise are in accordance with both the provisions of legislation and the collective agreement and that, pursuant to the latter, the compensation paid far exceeds the provisions of the Labour Code. With regard to the alleged overcrowding of the workers affected by the FTTH project, the enterprise indicates that this project was the subject of clauses in the collective agreement signed in 2013 and that, although the launch of the project may have led to the concentration of an unusual number of workers for short periods of time, this does not mean that there was overcrowding. The enterprise finally states that: (i) the collective agreement signed with SINTRATELEFONOS applies by extension to all workers in the enterprise and there is currently no collective accord within the enterprise, therefore there are no better entitlements for workers who are not members of the union; and (ii) just because unions disagree with decisions taken by the enterprise does not make them violations of freedom of association.
7. 105. The Government then provides its own additional observations. It reaffirms that there is a clear lack of factual and legal basis for the complainants’ claims, that the dismissals decided by the enterprise were applied to both unionized and non-unionized workers and that, should a situation of anti-union dismissal arise, the enterprise must comply with ILO Conventions, domestic legislation and national jurisprudence.
8. 106. Regarding the allegations of illegal labour intermediation, the Government indicates that, on 25 January 2019, in Decision No. 152, the Ministry of Labour cleared the enterprise of any such conduct, meaning that on this point there are no grounds for complaint in an issue that has already been resolved. The Government adds that, although this is a matter for the enterprise and its partners, the article of the Bogota development plan providing for the sale of some of the enterprise’s shares was revoked by the administrative courts. The Government concludes that, of the 2,713 workers employed by the enterprise, SINTRATELEFONOS has approximately 1,790 members, which, together with the collective agreements signed by the enterprise with this organization, demonstrates that there was no violation of ILO Conventions on freedom of association.
9. 107. By a third communication dated 29 April 2022, the Government provides additional observations from the enterprise. After reaffirming that it respects freedom of association and collective bargaining, the enterprise states that: (i) the number of unionized workers within the enterprise remains stable; (ii) it currently maintains good relations with SINTRATELEFONOS, highlighting the signing, on 22 April 2021, of a new collective labour agreement, in force until 31 December 2023, an agreement that is being fully complied with; and (iii) the enterprise meets once a week with the trade union to jointly define solutions and/or improvement actions regarding any concerns that SINTRATELEFONOS may express. The enterprise finally adds that on 10 September 2019, the then candidate for Mayor of Bogotá (and currently Mayor of the city), Ms Claudia López, signed a programme agreement with SINTRATELEFONOS in order to protect the enterprise as a public entity and ensure compliance with the collective labour agreement, an agreement that the enterprise has been implementing as appropriate.
10. 108. The Government then reiterates that the elements provided in its previous communications demonstrate that Conventions Nos 87 and 98 have not been violated. It adds that the new information provided by the enterprise shows that relations between the enterprise and the trade union organization have improved substantially and that they have managed to sign a new collective bargaining agreement, valid until 31 December 2023.

C. The Committee’s conclusions

1. 109. The Committee notes that the present case concerns allegations of a series of anti-union acts by an enterprise in the telecommunications sector. The Committee notes that the complainants specifically allege: (i) the dismissal of 75 workers, primarily union members, between 2013 and 2016 and the dismissal of another group of unionized workers on 23 June 2016; (ii) a judicial complaint filed by the enterprise against the complaints committee of SINTRATELEFONOS alleging the unlawful nature of a work stoppage carried out in November 2013; (iii) a series of violations of the existing collective agreement aimed at weakening the SINTRATELEFONOS trade union organization; and (iv) bad faith on the part of the enterprise in negotiations on the list of demands submitted by the union on 24 June 2016. The Committee notes that, for their part, the enterprise and the Government deny the existence of anti-union acts by the enterprise, underlining in particular the high number of unionized workers in the enterprise and the signing of new collective agreements with SINTRATELEFONOS for the periods 2018–20 and 2021–23.
2. 110. Regarding the complaint of anti-union dismissals within the enterprise, the Committee notes that the complainants allege that: (i) the enterprise carried out the mass dismissals of workers (75), mostly unionized, between 2013 and 2016, including SINTRATELEFONOS’ adviser, Mr Fernando Alberto Osma Pachón; (ii) these dismissals are based on false claims about the high payroll cost; and (iii) around 20 more workers were dismissed on 23 June 2016, the day on which the union was holding its general assembly to adopt the submission of its list of demands.
3. 111. The Committee notes that, for their part, the enterprise and the Government state that: (i) the dismissals are the result of changes made in the enterprise’s workforce for reasons of competitiveness and efficiency and have affected both unionized and non-unionized workers; (ii) given that the enterprise’s workforce is largely unionized, the dismissals have indeed affected most unionized workers without this being an anti-union policy of the enterprise, an allegation that is not supported by any factual evidence; and (iii) all the dismissals carried out have been in accordance with the applicable provisions of legislation and the relevant clauses of the collective agreement. The Committee notes that the enterprise and the Government also add that Mr Pachón’s dismissal was preceded by a judicial authorization to lift his trade union immunity. Regarding the dismissals carried out on 23 June 2016, the day of a SINTRATELEFONOS general assembly, the Committee notes that the enterprise and the Government state further that: (i) the enterprise authorized the holding of the general assembly in question, about which it had been informed on 20 June 2016; (ii) the labour inspectorate found no evidence of any violation of freedom of association concerning the situation of four of the above-mentioned workers who had refused to leave their jobs; and (iii) the labour courts also failed to note any irregularities or evidence of any violation of freedom of association concerning eight workers who contested their dismissals before the courts.
4. 112. The Committee recalls that it is not called upon to pronounce upon the question of the breaking of a contract of employment by dismissal except in cases in which the provisions on dismissal imply anti-union discrimination [see Compilation of Decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1085]. Regarding 75 dismissals that took place between 2013 and 2016, the Committee notes that the complainants do not provide details on the circumstantial facts and, beyond the general assertion that the dismissals in question had reportedly primarily affected unionized workers, they do not provide any additional information on their alleged anti-union nature or on the legal action that might have been brought in this regard. The Committee also takes note of the enterprise’s and the Government’s assertion that the dismissals were motivated by the need to maintain the enterprise’s competitiveness and that the fact that most unionized workers were affected does not indicate the existence of any anti-union policy, but merely reflects the fact that the enterprise’s workforce is largely unionized. In light of the above, the Committee finds that it does not have any evidence to reach a conclusion on the possible anti-union nature of the 75 dismissals in question.
5. 113. Regarding Mr Pachón’s dismissal, SINTRATELEFONOS’ adviser, the Committee notes the Government’s indication that his dismissal was preceded by a judicial authorization. The Committee also notes that it appears from the annexes provided by the parties that this judicial authorization was upheld by a second-instance ruling on 24 April 2015.
6. 114. As for the dismissals of a group of unionized workers on 23 June 2016, the day on which a SINTRATELEFONOS general assembly was being held, the Committee, while noting that the allegations of the complainants refer to a number of affected workers ranging from 19 to 25 workers, notes the Government’s indication that the labour inspectorate found that there was no violation of freedom of association concerning the situation of four of the above-mentioned workers who had refused to leave their jobs, and that the dismissals of eight workers who contested the termination of their employment contracts before the courts were not deemed to be anti-union acts by the labour courts. Noting that it has no information on any appeals lodged by other workers who were subject to these dismissals, the Committee trusts that any legal action that may have been brought by workers affiliated to SINTRATELEFONOS in connection with their dismissals has been considered in accordance with freedom of association.
7. 115. With regard to a work stoppage carried out on 7 and 21 November 2013 and the judicial complaint filed by the enterprise against the complaints committee of SINTRATELEFONOS, the Committee, while noting the absence of reply from the Government in this regard, notes that a publicly available ruling of the Labour Chamber of the Supreme Court of 7 March 2018 (Ruling No. SL1447-2018) upheld a first-instance ruling that had held that it was not appropriate to declare unlawful this collective work stoppage. The Committee takes due note of this ruling and will not pursue the examination of this allegation.
8. 116. Regarding a number of alleged violations of the collective agreement by the enterprise aimed at weakening SINTRATELEFONOS (outsourcing of work, overcrowding of workers engaged in the enterprise’s new project and encouraging workers to join the enterprise’s benefit plan to the detriment of the collective agreement), the Committee notes that the enterprise and the Government state that: (i) the allegations in question are without basis in fact; (ii) as is clear from the relevant decisions of the labour administration, the outsourcing of work by the enterprise complies with existing legislation; (iii) the concentration of numerous workers in one area of the enterprise has only been temporary and due to the launch of the enterprise’s FTTH project; (iv) the collective agreement signed with the majority union SINTRATELEFONOS is for general application in the enterprise, which has no collective agreement signed with non-unionized workers, so it is false to claim that non-unionized workers would enjoy better benefits than those covered by the collective agreement; (v) the absence of any anti-union policy in the enterprise is reflected in the fact that most of the enterprise’s workers belong to SINTRATELEFONOS and in the signing of collective agreements with that union; and (vi) in the context of an improvement of their relationships, the enterprise and SINTRATELEFONOS are now meeting regularly to find solutions to any concerns that the union may express. The Committee takes due note of this information, as well as of the generic nature of most of the above allegations. With regard to the alleged promotion of the enterprise’s benefit plan to the detriment of the collective agreement, the Committee notes that the annexes provided by the parties contain a ruling dated 19 December 2016 (0162-00) ruling that the enterprise should extend the benefit of days off at Christmas contained in the benefit plan to unionized workers. In light of the above, the Committee trusts that the Government will continue to take the necessary steps to continue ensuring full respect for freedom of association in the enterprise and that the parties, which have a long history of signing collective agreements, will continue to engage in dialogue and collective bargaining to resolve any potential disputes.
9. 117. Concerning the allegations of bad faith on the part of the enterprise, the Committee notes that it is clear from the information provided by the complainants, the enterprise and the Government that: (i) the union submitted a list of demands on 24 June 2016 for the renewal of the existing collective agreement; (ii) the enterprise, pursuant to article 479 of the Labour Code and within 60 days prior to expiry of the agreement, on 30 June 2016 denounced several articles of the existing agreement and requested that its denunciation of those articles be taken into consideration as a basis for the negotiation of the new agreement; (iii) after a long series of meetings to determine the basis of negotiations, the parties initiated the direct settlement phase on 21 November 2017; and (iv) on 7 March 2018, the parties succeeded in signing a new collective agreement for the period 2018–20. The Committee recalls that it has deemed that the opportunity which employers have, according to the legislation, of presenting proposals for the purposes of collective bargaining – provided these proposals are merely to serve as a basis for the voluntary negotiation to which Convention No. 98 refers – cannot be considered as a violation of the principles applicable in this matter [see Compilation, para. 1321]. The Committee notes that the enterprise, in accordance with existing legislation, denounced some aspects of the collective agreement a few months before the end of the period of validity of the agreement and requested that its denunciation of these articles be taken into consideration in the negotiation of the new agreement following the submission of the union’s list of demands. The Committee also notes that the negotiation process culminated in the signing of a new collective agreement for the period 2018–20. In light of the above and noting that the negotiating dynamics described above are not contrary to the bilateral nature of free and voluntary collective bargaining, the Committee will not pursue the examination of this allegation. Noting further that, subsequent to the events examined in this complaint, the enterprise and SINTRATELEFONOS signed a new collective agreement for the period 2021–23, the Committee trusts that the parties will continue to rely on dialogue and collective bargaining to determine conditions of employment within the enterprise.

The Committee’s recommendations

1. 118. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that any legal action that may have been brought by workers affiliated to SINTRATELEFONOS who have been dismissed has been considered in accordance with freedom of association.
   • (b) The Committee trusts that the Government will continue to take the necessary steps to continue ensuring full respect for freedom of association in the enterprise and that the parties will continue to rely on dialogue and collective bargaining to determine conditions of employment within the enterprise and to resolve any potential disputes.
   • (c) The Committee considers that this case does not call for further examination and is closed.