Labor Disputes: Collective Bargaining and Conflict Resolution
Collective Labor Disputes
The collective of work emerges from a community of workers, either in the form of a continuing legal organization (union) or without legal organization, standing in front of one or more employers, provided that the conflict will play an interest.
The conflict may be legal or financial. It is legal when the dispute between workers and the employer concerns the existence, scope, or interpretation of a legal rule. These conflicts are decided by a labor judge.
The conflict is economic when the controversy is generated between workers and the employer on the establishment or modification of working conditions. These conflicts are resolved in accordance with established procedures in the conduct of national labor.
Initiating Collective Bargaining
The first stage of economic collective action starts with the submission of a statement of requests from workers to the employer (a working paper presented to the employer in which they make requests concerning working conditions). Workers’ unions and private companies’ official labor unions can submit lists of demands. They can also submit lists of demands for public employees’ unions.
Non-unionized workers (official or private) may submit a list of demands if the company does not have a union that brings together more than a third of the company’s workers. The statement must be presented to the employer within two (2) months following approval of the assembly, which in turn appoints negotiators for the statement.
Conversations are initiated, and accordingly, the union negotiators present the list of demands to the employer, who is obliged to receive them within 24 hours after the presentation of the document. In any case, the initiation of talks cannot be delayed by more than five (5) business days after the submission of the statement. An employer who refuses or evades starting discussions within the period specified by the authorities shall be punished by a fine of five to ten times the legal monthly minimum wage for the SENA.
Direct Settlement and Agreements
Once the previous phase is complete, after the employer accepts the statement, the stage of direct settlement begins, where the employer and employees formally start talks to meet negotiators from each of the parties. This stage lasts twenty calendar days, extendable by mutual agreement of the parties for twenty additional calendar days. If an agreement is reached at this stage, a collective agreement is signed, according to those who have submitted a statement of conditions. If partial agreements are reached, a document on the partial agreements is signed.
Following the period of direct settlement without a full agreement, workers may choose to declare a strike or submit their differences to a court decision through arbitration.
Strike or Arbitration
The strike or request for arbitration shall be decided within ten working days following the termination of the direct settlement stage, by secret ballot, by an absolute majority of the workers’ union or trade unions representing more than half of the employees of the company. When the union or unions do not represent more than half of the workers in the company, the decision is taken by an absolute majority of the company’s workers.
If a strike is chosen, there may be only two working days for its statement and no more than ten working days. This period is called prehuelga.
The Strike
According to Article 429 of the Labor Code, a strike is a collective suspension, temporary and peaceful, of labor performed by workers in an establishment or company for economic and professional purposes proposed to employers and previous legal work. Similarly, Article 56 of the Constitution”guarantees the right to strike except in essential public services defined by the legislature. Services are defined as essential public activity of the central bank (Banco de la República), household public services, social security services, the services of companies transporting by land, sea, and air, telecommunications companies, and the activities of exploitation, refining, and transportation of all derivatives.
Duration of Strike
When the strike has reached sixty calendar days without the parties finding means of resolving the conflict, the Ministry of Social Welfare may order that the dispute be referred to the decision of an arbitration tribunal, in which case workers will be required to resume work within a maximum term of three working days from notification of the decision which the court convenes arbitration.
Special Note (Act 48 of 1968)
If a strike, by virtue of its nature or magnitude, seriously affects the interests of the national economy as a whole, the President of the Republic may at any time order the cessation of the strike and that the differences that resulted from it be subjected to the decision of an arbitration tribunal. But the President cannot decide without the prior approval of the labor chamber of the Supreme Court.
Arbitration
Arbitration is a way of resolving disputes, whether because the law demands it or because the workers so determined. The arbitration is done by a committee made up of three members appointed as follows: one by the company, another by the workers, and the third appointed jointly by these two arbitrators. Without this agreement, the third arbitrator shall be appointed by the Ministry of Social Protection.
The arbitral award or decision is the decision handed down by the arbitration tribunal, which ends the conflict and has the character of a collective agreement, and its validity cannot exceed two years.