Case Study Finds Labor Action Plan ineffective, worker abuse continues
Washington, DC — The Communications Workers of America today released "As Goes Avianca: How One Company Represents the Problems and Challenges of the Colombia Free Trade Agreement & the Action Plan on Labor Rights." The case study outlines the challenges that go unaddressed by the proposed agreement's Labor Action Plan by looking at the actions of the Colombian-based airline as they relate to it.
Avianca has to great lengths to prevent new employees from joining unions, including forcing them to sign into a voluntary benefits plan, or PBV, that prohibits union membership — before they are permitted to sign employment contracts. Further, new non-union employees are awarded health and nutritional stipends that union members at the airline are not eligible for.
American and Colombian workers should be alarmed, with American carriers like Spirit Airlines already pursuing a plan to expand service to Colombia, and use that nation and its weak labor laws as part of a hub to expand service to South American destinations. Real meaningful reform is critical, and the Avianca example raises larger questions about Colombia's continued hostility to worker protections and basic rights, as well as questions about the enforceability of the Action Plan.
"CWA will continue its work with telephone workers, public workers, journalists, flight attendants and others who are fighting for employee status and a voice in their workplaces. The fact is, despite the Action Plan, the situation in Colombia has not changed, and therefore, should not be rewarded with a Free Trade Agreement," said George Kohl, CWA Senior Director.
As Goes Avianca:
How One Company Represents the Problems and Challenges of the Colombia Free Trade Agreement & the Action Plan on Labor Rights
The State of Play
On Tuesday, October 4, 2011 the Colombia Free Trade Agreement (FTA) was sent to Congress by the White House for consideration. In large part due to concerns over Colombia's treatment of workers and hostility toward labor organizing, the U.S. has delayed action on the Colombia FTA to date.
In April 2011, the White House announced a Labor Action Plan that, in the White House's view, "will lead to greatly enhanced labor rights in Colombia and clear the way for the U.S.-Colombia Trade Agreement to move forward to Congress." The Action Plan includes metrics and goals related to persistent problems regarding Colombia's hostility toward unions and lack of standards for workers' basic rights.
The Action Plan indicates that it focuses on "Preventing Violence and Prosecuting the Perpetrators;" "Protecting Workers' Rights;" and "Labor Provisions in the U.S.-Colombia Trade Promotion Agreement." While these are the right topic areas to address given Colombia's persistent problems on each of these fronts, there remain real concerns about how the plan will be implemented, enforced and whether it will ultimately be effective.
An analysis by the AFL-CIO of Colombian progress on the metrics and goals laid out by the Labor Action Plan found that:
"After more than five months of implementation, Colombia has failed to deliver real change to workers and left many of its commitments unfulfilled. Even in those cases in which Colombia has met its commitments—for example to propose new budgets or promulgate new rules—Colombia's implementation of reforms has been incomplete and ineffective. As a result, workers who wish to better their lives by forming a union and bargaining collectively continue to be the victims of threats and violent acts including murder. Moreover, Colombian law continues to provide broad avenues to deny workers the ability to exercise their most basic rights."
Judging from early action, and based on the events at Avianca we have little to no confidence that the Labor Action Plan in its current form will bring about the desperately needed changes to Colombia. Overall:
- The long-term record of the Colombian government does not instill confidence.
- The ability of workers to organize remains severely restricted.
- Colombia remains the most dangerous country in the world to be a trade unionist.
- The early actions regarding fidelity to the Action Plan are not positive or reassuring.
- There is no enforcement mechanism.
- Murders and violence against labor activists continues.
The myriad problems of Colombia — in its treatment of workers and unwillingness to meet real benchmarks regarding labor protections — are manifested through the example of Avianca. Colombian employers actively avoid labor laws, entrench the country's anti-union climate, and are primed to circumvent Action Plan goals. Through their example, Avianca provides a reminder of why progress on the Action Plan is needed before moving forward on the trade agreement.
Avianca — A Lens to Look at the Larger Debate
Companies in Colombia go to extraordinary lengths to persecute those who are brave enough to seek to form a union. ACAV is the union representing flight attendants for Avianca (a major airline founded in Colombia) Avianca has exhibited a pattern of behavior that is damaging to workers and uncurbed by the Labor Action Plan.
Avianca also has a history of using pactos colectivos. In 1995, a Colombian court ruling determined that Avianca's pacto colectivo was a violation of Colombian law, and the ILO recommended in 2005 and reaffirmed in 2008 that Avianca should not implement the pacto in a manner that would undermine the position of trade unions and their bargaining power in accordance fundamental labor rights, and that it must not exert pressure on workers to sign it.
Avianca no longer uses pactos colectivos, but now uses a document called a "plan voluntario de beneficios" (voluntary benefits plan or PBV), and verbally instructs new employees to sign on to the plan before they are permitted to sign employment contracts. The plan prohibits union membership and provides higher benefits to workers covered under the PBV than to those who belong to the union. The most recent version of the PBV was created in 2010. It rewards non-union employees with stipends for health and nutrition that are not available to union members.
In 2011, ACAV members challenged the legality of the PBV in the tutela, a court commission that addresses violations of the constitution. ACAV's members divided into three groups to pursue their case. The first group won both its first case and a subsequent appeal, and Avianca paid the plaintiffs back-wages to compensate for the unpaid stipends. The second and third groups won their first cases, and Avianca paid the workers their back wages. However, on appeal, the judges for the second and third groups determined that the case should not have been addressed through the tutela but instead through the labor courts.
In May 2011, Avianca garnered the wages (illegal in Colombia, for any reason) of the plaintiffs in order to get back the back-wages it had paid them. Avianca has not changed the implementation or the content of the PBV. In May 2011, after the announcement of the Labor Action Plan, ACAV met with the chief labor inspector under the Ministry of Social Protection, who informed members that the case was outside to competency of the Ministry, and would thus have to be addressed through the courts. ACAV continues to pursue the case through the court system.
The Government's failure to address Avianca's tactics is a violation of its commitment to implement "a robust enforcement regime" with regard to collective pacts, and in particular, failure to enforce the Article 200 (enacted pursuant to the LAP) making it "a crime, subject to imprisonment, to use collective pacts to undermine the right to organize and bargain collectively by extending better conditions to non-union workers in such pacts."
Why It All Matters & The Bottom Line
In Colombia, just 100,000 workers out of 20 million have bargaining rights and 85% of working Colombians are misclassified as contractors and "cooperativos." These millions of workers don't have bargaining rights and also are denied health care benefits and retirement security because they don't have "employee status."
With American carriers like Spirit Airlines pursuing a plan to expand service to Colombia, and use that as a hub to expand service to South American destinations, pursuit of real meaningful reform is critical, and the Avianca example raises larger questions about Colombia's continued hostility to worker protections and basic rights, as well as questions about the enforceability of the Action Plan.
This is far from an abstract or inconsequential debate — from 2005 to 2009, 284 trade unionists were murdered in Colombia. Another 47 trade unionists were murdered in Colombia in 2009. In the last two decades, more than 2,700 Colombian trade unionists have been assassinated with a near total rate of impunity (approximately 96%). In 2011, at least seven more trade unionists have been killed.
Despite the overwhelming need for reform, public information shows that the Colombian government already has failed to meet the deadline on at least five of the steps outlined in the Action Plan. Additionally, the Office of the U.S. Trade Representative refused to share whether and how the Colombian government has met some of the other benchmarks outlined in the Plan.
Until Colombia adheres to and provides tangible progress on Action Plan goals and metrics, we fear the Plan is more rhetoric than reality. We should use this time and this opportunity to encourage true democratic reforms in Colombia before moving forward on the FTA. We must insist on real change, a timetable to measure progress and incorporate enforcement agreements into the implementation language.
Congress should not consider the Colombia FTA until there is demonstrable progress that Colombian workers can freely exercise their basic rights to organize and bargain collectively and that companies like Avianca adhere to making the Action Plan reality, and not just rhetoric.