Labor Information Agency- For Illegal Labor Outsourcing
(Translated by Eunice Gibson, CSN Volunteer Translator, Edited by Shanise Faust)
Source: Escuela Nacional Sindical- Medellín
-Affects Drummond, El Cerrejón, Marly Clinic, the Caribbean University Hospital the contractors Gecolsa and Dimantec, and the temporary agencies Ocupar and Konekta-
In “dribs and drabs” the Labor Ministry is penalizing the companies against which there have been complaints. In the last two years there were a total of 151,106 complaints of illegal labor outsourcing and 145 complaints for the imposition of labor agreements and benefit plans. The complaints were presented by the leaders of the Workers Central Union (CUT) and the Colombian Workers Federation (CTC) with help from the Worker Assistance Center (CAL). In addition, there was help from a training that was furnished to the unions by the Technical Counsel of the International Labor Organization (OIT).
As of now, of the complaints of illegal labor outsourcing, the Ministry has only resolved three with penalties against those responsible. The first was last June and the other two last month. They affect two hospitals and two coal mining multinationals, sectors that have been characterized by intensive labor mediation. They also affect the four companies that contracted the workers who were used in the illegal outsourcing.
They are: Marly Clinic and Ocupar Temporal SA, both of Bogotá. A fine of 3,185,259 pesos (about $1,007 USD) was imposed on each. The University Hospital for the Caribbean in Cartagena and Temporal Konekta (a temporary agency) was fined 68,945,000 pesos (about $21,801 USD) and 689,454,000 pesos (about $218,000 USD) respectively. Drummond and Carbones El Cerrejón and their contractors, Gecols and Dimantec, were each fined 2,069,000 pesos (about $654 USD) each.
The fines total more than 15 billion pesos (about $4.74 million USD). Under the law they must be paid to the National Education Service (SENA).
However, according to statements by the leaders of the unions that made the complaints, they expect that the companies that were penalized will use Decree No. 321 of 2015 that allows them to change the penalty into a formalized labor agreement for the workers that were affected by the outsourcing.
The Marly Clinic Case
The complaint against the Marly Clinic was filed by the Sintramarly union in April 2015, claiming that this medical clinic had been hiring temporary workers for 20 years to perform permanent activities that are part of the clinic’s mission. That is illegal. Inspectors from the Labor Ministry who investigated the case established the facts.
Eight hundred professionals, including physicians, nurses, nursing assistants, orderlies, etc., are employed by Ocupar Temporal SA, the temp business that furnishes the workers for the Marly Clinic.
They are professionals that carry out the same functions as the workers employed by the clinic, but their salaries and working conditions are precarious. Every six months, or every year at the most, their contracts are renewed. This leaves their employment unstable and without the opportunity to organize a union, which is precisely one of the objectives of subcontracting.
Attorney Angélica Palacio, Director of the Mobile Center for Worker Assistance in Bogotá, who has helped and accompanied the unions that filed the complaint, said that they have been working on conversations with the company to start a process of gradual formalization for the 800 outsourced professionals. If that is not done, the clinic will have to pay the fine of 3,185,259 pesos, the same as Ocupar Temporal SA.
CUT is helping with this process of formalization, along with the AFL-CIO Center for Solidarity and CAL Bogotá. The process should be complete within a year.
For its part, Sintramarly expects that once the workers are formalized they will join their labor organization and the company will respect that right, because in recent weeks the company has sent the workers letters urging them not to join. This is a union that has existed for 20 years, but it has never been able to gain more than 50 members, precisely because of the massive outsourcing by the Marly Clinic.
The Anthoc complaint
This complaint was filed by the Anthoc union in 2014, against the Caribbean University Hospital which is part of the public medical network in Cartagena, and against the Konekta Temporal company, which furnishes medical and paramedical personnel. CUT Bolivar and the Cartagena Worker Assistance Center supported this legal proceeding.
Just as with the Marly Clinic, the Ministry inspectors that carried out the investigation found that the nearly 400 physicians and paramedics that work in that hospital are subcontracted from the temporary employment company and that they have performed permanent and mission-related activities for ten years. Because of that, they ought to be formalized, and ought to be employed by the hospital.
That is why the Labor Ministry decided in favor of the union in this case and imposed fines on the hospital and on Konekta Temporal. The first is ordered to pay 68,945,400 pesos and the second was fined 689,454,000 pesos.
According to the Director of CAL Mobile, these fines are low, or not high enough to dissuade the hospital from continuing its policy of illegal subcontracting. The Ministry could fine them up to 5,000 minimum wages, but in this case only fined them 100 minimum wages in one case and 1,000 in the other.
The fines in the coal sector
As stated above, the mega-mining coal sector is one of the most outsourced in Colombia, and it is done illegally in some areas, as demonstrated by the Labor Ministry investigation. It found illegal practices of subcontracting for service and equipment maintenance at Drummond and at El Cerrejón Coal, resulting in fines of more than 2 billion pesos (about $632,000 USD), and the same for the contractors Gecolsa and Dimantec.
The complaints that originated the investigation were filed between 2013 and 2014 by the Metal-Mechanical Workers (Sintraime) and Coal Mine Workers (Sintracarbón) unions, with the help and support of CAL, the Solidarity Center, and the Justice and Liberty Corporation.
Sintraime complained that Drummond was illegally outsourcing to the Gecolsa Company that performed equipment maintenance service in the mining area at La Jagua de Ibirico in Cesar Province. And Sintracarbón filed a complaint against Carbones El Cerrejón for exactly the same reason.
The fact is that for six years both multinationals have hired Gecolsa company to do maintenance that they then subcontract to Dimantec Company, thus configuring double subcontracting. This is not only illegal, but it is also a detriment to the labor rights of the outsourced workers. According to Attorney Palacio, a maintenance assistant at the Drummond plant earns 1,600,000 pesos per month (about $505), while at Dimantec he only earns 860,000 pesos (about $272 USD) for doing the same work. And at El Cerrejón a technician at the plant earns 2 million pesos (about $632 USD) while a technician at Dimantec earns 800,000 pesos (about $260 USD).
It should be emphasized that for the same reason, through illegal worker mediation at Drummond, Sintraime filed a complaint with the Committee on Free Labor of the International Labor Organization and another with the government of Canada. Likewise, Sintracarbón has filed six more complaints for illegal outsourcing at other areas of the El Cerrejón complex. Workers there also expect favorable results.
Both unions are hoping that the procedure for formalization of the workers will begin soon in these four companies that have been penalized, unless they prefer just to pay the fine and keep on with their illegal outsourcing.
Published October 18, 2016