The Colombian Supreme Court of Justice declared that the industry union named "Unión Sindical Obrera de la Industria del Petróleo" (USO for its name in Spanish) promoted an illegal collective ceases of activities.
A construction and engineering company (the "Company"), filed a judicial claim against the USO arguing that the participation of the industry union in collective ceases of activities that took place in Company facilities on January 16; March 14, 15, 16, 20; April 10, 12; and May 16, 17 and 22 of 2012 were illegal.
The Company argued that during those days, the USO promoted an unexpected interruption of the normal work activity in its facilities and that as a result, some employees, without the authorization of their superiors, ceased their normal work. The Company also claimed that employees, with the help of the USO, blocked the access to the Company's facilities with barricades, distributed leaflets with threatening or insulting messages, and performed acts of violence and vandalism. The Company also claimed that union leaders entered the facilities illegally in violation of security procedures.
The USO admitted that a group of employees of the Company was affiliated with the union, but claimed that it did not promote the collective cease of activities. The USO argued that it was not notified of the occurrence of events. The USO also stated that during the above-mentioned days, the representatives that entered the facilities of the Company, were duly-authorized to do so as facilitators in the negotiation process.
On November 15, 2012, the High Court of Cartagena declared that the collective cease of activities was not promoted by the USO. Based on the evidence presented during trial, the High Tribunal concluded that the actions which occurred could not be attributed to the USO. (despite the fact that the actions were not legal) The High Tribunal stated that according to precedent of the Colombian Supreme Court, in such cases it is necessary to prove a previous or upcoming agreement between the parties that decided to cease collectively the activities.
The Company filed an appeal motion against the first instance decision before the Supreme Court of Justice.
The Supreme Court of Justice revoked the first instance decision, and declared that the USO promoted the collective cease of activities. The Supreme Court, after discerning between the legal strike and the illegal collective cease of activities, stated that in this case it was clear that the USO promoted a collective cease of activities in the facilities of the Company which was violent, aggressive, did not observe applicable law and was, therefore illegal. The Supreme Court considered that a strike or a collective cease of activities (when legal) must be collective, temporary, peaceful, and must be seen in the context of a collective negotiation process. (except if the strike is in response to noncompliance of the employer with regard to its legal obligations) According to the Supreme Court, in such cases it is essential to analyze: (i) the legality and development of the suspension of activities and, (ii) the behavior of the employees and the corresponding union.
The percentage of unionized employees in Colombia is increasing, and the ruling of the Supreme Court sets an important precedent for future cases. The analysis made by the Supreme Court of Justice on the gathered evidence to conclude the participation of the USO in the collective ceases of activities and the considerations made regarding the development of a strike or a collective cease of activities (when legal), is clear evidence that unions in Colombia must pay close attention to the way in which protests take place.
The USO is trying to obtain, before the Supreme Court of Justice, the annulment of the above-mentioned ruling by means of the tutela petition ("acción de tutela" for its name in Spanish).
