The Colombian Ministry of Work (Ministry) supervises the relationship between unions and employers. The Ministry recently imposed large fines on two companies for refusing to initiate the direct negotiation process with unions in accordance with Colombian Labor Law.
According to Colombian Labor Code, during the stage of direct negotiation, Union members have the right to present a petition sheet containing the economic and legal claims that will be the grounds of the negotiation. The employer, or its representative is required to initiate direct conversations with the Union delegates within 24 hours of receiving a petition sheet from a union. Colombian law states that the breach of this requirement on the part of a company leads to economic sanctions that can be between five to ten minimum monthly statutory salaries for each day of delay in beginning negotiations.
In the first case, an aviation industry company (Tampa Cargo S.A.) refused to initiate the direct negotiation process with the Colombian Association of Civil Aviators (“ACDAC”), claiming that the Union did not fulfill the requirement of denouncing the current Collective Bargaining Agreement between the company and another union when filing the petition sheet. The Ministry of Work fined Tampa Cargo the highest amount possible (COL 5.895.000) for each day that the direct negotiation process was not begun between the Union and Tampa Cargo.
In the second case, the Ministry imposed sanctions against Clínica Campo Abierto Organización Sanitas Internacional S.A.S. with a fine of COL 5.000.000 for each day of delay in the initiation of the direct negotiation process with the company’s Union. In this case, Clínica Campo refused to initiate conversations alleging that the legal requirements for creating the Union had not been met, therefore making the Union illegal. Clínica Campo argued that as an illegal union, the union did not have the right to initiate a formal negotiation process.
In both cases, the Ministry considered that the companies acted against the association and collective negotiation rights by ignoring the terms established by the law to initiate conversations with a Union during the stage of direct negotiation. The Ministry of Work did not accept the reasons alleged by the companies to refuse to initiate the direct negotiation process. The Ministry considered that not observing the terms established by the law to initiate conversations with a Union without a just cause was a violation of the association and collective negotiation rights.
Particularly, in the case of Tampa Cargo S.A. the Ministry considered that it is completely legal to have more than one Collective Bargaining Agreement and plural number of unions in one company, and in consequence, each union has autonomy to negotiate with the employer. In this sense, it is not necessary for a union to denounce the Collective Bargaining Agreement of other unions within the company in order to file the list of petitions. Additionally, the Ministry stated that unionized employees will receive the benefits of the Collective Bargaining Agreement they freely choose and which best suits their economic interest.
Regarding Clínica Campo and the possible breaches of the company’s Union, the Ministry held that the company’s Union was legitimately created and, in consequence, the arguments alleged by the company had no grounds and cannot limit the collective negotiation right.
The decisions in Tampa Cargo and Clínica Campo are very important as they represent highest fines imposed companies by the Ministry related to possible breaches during the collective negotiation of a petition sheet. The precedents in Tampa Cargo and Clínica Campo guarantee the respect for the constitutional right to the collective negotiation, and also the respect of the collective labor law; and establish a considerable precedent for future cases. The message of the Ministry of Work is clear: employers must initiate the direct negotiation process with the union (regardless of its legal nature) once the petition sheet is filled.