Definitive Report - Report No 236, November 1984

Case No 1140 (Colombia) - Complaint date: 07-JUN-82 - Closed

1. 133. The Committee examined this case at its meeting in May 1983, and submitted an interim report to the Governing Body [see 226th Report of the Committee, paras. 274 to 293, approved by the Governing Body at its 223rd Session (May-June 1983)]. The Government subsequently sent further observations in communications dated 19 September and 19 October 1983.
2. 134. Colombia has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 135. When the Committee examined this case at its meeting in May 1983, it made the following recommendations on the allegations pending (see 226th Report of the Committee, para. 293]:
2. The Committee requests the Government to indicate in what way the Colombian Tobacco Company penalised the trade union leaders referred to by the complainant and the grounds adduced therefore and whether the union leaders who were arrested for endangering the life and safety of persons in the vicinity of the barricades set up by the workers during the strike have been released and cleared of all charges.
3. The Committee requests the Government to indicate whether the three trade union leaders of Cerámicas del Valle Ltd., who were dismissed without reasonable grounds have been able to return to their former jobs and the grounds adduced for the dismissal of the other three trade union leaders.
4. The Committee requests the Government to indicate in what way Larco S.A. was penalised for conducting unwarranted collective dismissals and whether appropriate measures have been taken to reinstate all the workers who were dismissed for trade union reasons.
5. The Committee requests the Government to send its observations on the allegations to which it has not replied, namely: the penalising of three trade union leaders of the Colgas S.A. Group and the refusal of Tejicóndor to allow trade unionists and union leaders to enter the company's premises following the workers' strike in support of the list of grievances they had presented.
6. 136. With respect to the allegations concerning the Colombian Tobacco Company, the Government, in its communication of 19 September 1983, requested the International Labour Office to seek more precise information from the complainant organisation on the sanctions said to have been imposed on trade union leaders and on the identity of those leaders allegedly detained. The Government's request was transmitted to the complainant organisation and the Committee recalled the substance of this request at all its meetings as from November 1983.
7. The complainant organisation did not supply any information or comments whatsoever on this matter.
8. B. The Government's reply
9. 137. In its communications of 19 September and 19 October 1983, the Government states that under an order of 8 July 1982, the authorities imposed a fine of 10,000 pesos on the company Cerámicas del Valle Ltd., as it was proven that this company had not requested authorisation from the Labour Magistrate to dismiss eight members of the union executive committee. The Cali High Court ordered the reinstatement of five of these members, but they were dismissed once again at a later date (one of them on justifiable grounds and the others without reasonable grounds, but with compensation). The trial' Of the other three trade union leaders is still under way. The Government points out that the trade union organisation in the company is functioning normally and that a collective agreement has recently been signed.
10. 138. The Government also states that under an order of 11 March 1983, the authorities imposed a fine of 10,000 pesos on the Larco S.A. company for having conducted an illegal collective dismissal. Amongst the workers forced to leave the undertaking, 21 workers were dismissed without just cause. The Government points out that the undertaking lodged the appropriate appeals against the order imposing the fine.
11. 139. Furthermore, the Government states that on 7 October 1982, a statement was signed by the executives of the trade union organisation SINTRATEXTIL and the legal representative of Tejicóndor in the presence of the Seventh Inspector of the Collective Relations Section of the Department of Labour and Social Security of Antioquia, in which the company undertakes not to prevent trade union leaders from entering the premises and to advise workers sitting on disciplinary committees.
12. 140. Finally, with respect to the undertaking "Colombiana de Gas S.A." (Colgas), the Government states that an order of 24 June 1982 (which the Government encloses as an annex) ruled that collective labour stoppages which occurred on 30 April and 26 May 1982 were illegal means of putting pressure on the undertaking, as its activity is considered of public service and collective bargaining was being duly conducted. In particular, the grounds upon which the ruling is based are as follows:
13. ... although a list of grievances was undoubtedly being discussed in the aforementioned undertaking, within the parameters laid down by the law, the fact also remains that when this happens in an undertaking whose activity is considered to be of public service, its workers may not be involved in collective labour disputes or declare a strike; if no solution to their differences can be found at the direct settlement or conciliation stages, they must be submitted to compulsory arbitration, as laid down in section 34 of Decree 2351 of 1965 ...
14. ... the total legal ban imposed on strike action in public services is sufficient legal grounds to declare illegal the collective work stoppages conducted by the workers in the undertaking "Colombians de Gas S.A.".

C. The Committee's conclusions

1. 141. With respect to the allegations concerning the Colombian Tobacco Company, the Committee notes that the complainant organisation has not submitted any information or made any comment whatsoever in 42 answer to the request for more precise details on these allegations transmitted to it by the International Labour Office and by the Committee itself at all its meetings since November 1983. In these circumstances, in view of the lack of interest shown by the complainant with respect to these allegations, the Committee will not continue its examination of these allegations.
2. 142. With respect to the problem existing in the Tejicóndor undertaking, the Committee notes that, according to the Government, a representative from this undertaking and leaders of the trade union organisation signed a statement in the presence of the Labour Inspectorate and that the undertaking agrees not to prevent the access of trade union leaders to the premises.
3. 143. With respect to the allegations concerning the massive dismissal of workers in the Larco S.A. undertaking, with a view to eliminating the trade union organisation [see 226th Report, para. 276] and concerning the dismissal of trade union leaders in Cerámicas del Valle Ltd., the Committee notes that the administrative authorities imposed a fine of 10,000 pesos on each undertaking for not having requested the necessary authorisation to do so. The Committee also notes that the Government made no comment on the alleged anti-trade union intentions behind the collective dismissals in the Larco S.A. undertaking and that it stated that five of the union leaders of the undertaking Cerámicas del Valle Ltd., after being reinstated by a court order, were subsequently dismissed again. Although the Committee does not have at its disposal sufficient information on these allegations, it wishes to point out that the financial sanctions imposed by the administrative authorities do not appear to be sufficiently severe to dissuade any possible anti-trade union discrimination that might arise. In these circumstances, taking into account the time which has elapsed since the alleged facts occurred, the Committee would merely draw the Government's attention to the fact that no person should be dismissed or be subject to other prejudicial measures in relation to his employment for belonging to a trade union or carrying out legal trade union activities [see, for example, 233rd Report, Cases Nos. 1183 and 1205 (Chile), para. 500]. The Committee requests the Government to take measures to punish effectively acts of anti-trade union discrimination.
4. 144. Finally, with respect to the alleged sanctions imposed on three trade union leaders in the Colgas S.A. undertaking, the Committee notes that the Government did not refer to them but merely' pointed out that there had been a collective labour stoppage in this undertaking (declared illegal by the administrative authorities) which had been used as a means of pressure whilst collective bargaining was being duly carried out. The Committee also notes that the activities of Colgas S.A. (Compañía Colombiana de Gas S.A.) are considered to be a public service in which no strikes may be declared and any differences which might arise during collective bargaining must, if no solution is found at the direct settlement or conciliation stages, be submitted to compulsory arbitration. In this respect, the Committee recalls that the substitution by legislative means of compulsory arbitration for the right to strike as a means of resolving labour disputes could only be justified in respect of essential services in the strict sense of the term (those services whose interruption would endanger the life, personal safety or health of the whole or part of the population); apart from such cases, it would be contrary to the right of workers' organisations to organise their activities and formulate their programmes, as laid down in Article 3 of Convention No. 87 [see, for example, 226th Report, Case No. 1140 (Colombia), para. 288]. In the present case, as the Committee is not convinced that the services provided by the Colgas S.A. undertaking fall within this concept of essential services, and given the short duration of the strikes called by these workers, the Committee considers that the workers in this undertaking were exercising their legitimate rights in calling strikes of limited duration. In these circumstances, it requests the Government to take measures so that the right to strike of workers in the Colgas S.A. undertaking is recognised.

The Committee's recommendations

1. 145. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions.
   • (a) The Committee draws the Government's attention to the fact that no person should be dismissed or be subject to other prejudicial measures in respect of his employment for belonging to a trade union or carrying out legal trade union activities. The Committee requests the Government to take measures so as to effectively punish acts of anti-trade union discrimination.
   • (b) The Committee recalls that the substitution by legislative means of compulsory arbitration for the right to strike as a means of resolving labour disputes could only be justified in respect of essential services in the strict sense of the term (those services whose interruption would endanger the life, personal safety or health of the whole or part of the population); apart from such cases, it would be contrary to the right of workers' organisations to organise their activities and formulate their programmes, as laid down in Article 3 of Convention No. 87. In the present case, as the Committee is not convinced that the services provided by the undertaking Colgas S.A. fall within this concept of essential services, and given the short duration of the strikes called by these workers, it considers that the workers in this undertaking were exercising their legitimate rights in calling strikes of limited duration. In these circumstances, the Committee requests the Government to take measures so that the right to strike of workers in the Colgas S.A. undertaking is recognised.