Report in which the committee requests to be kept informed of development - Report No 322, June 2000

Case No 1964 (Colombia) - Complaint date: 15-APR-98 - Closed

Allegations: Anti-union interference and discrimination, acts of intimidation, and non-compliance with the terms of the collective agreement

1. 69. The Committee last examined this case at its November 1999 meeting, when it submitted an interim report to the Governing Body (see 319th Report, paras. 157-169, approved by the Governing Body at its 276th sitting, March 1999).
2. 70. The Government sent its observations in communications dated 9 March and 9 May 2000.
3. 71. Colombia has ratified 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. 72. At its November 1999 meeting, the Committee made the following recommendations on the allegations that were still pending with respect to anti-union interference and discrimination and the non-compliance with some terms of a collective agreement by the CONALVIDRIOS S.A. Company (see 319th Report, para. 169).
   • (a) the Committee requests the Government to ensure that a thorough investigation is carried out into each of the allegations presented by the complainant (except for those concerning economic benefits and trade union membership dues) and to inform it in this respect without delay;
   • (b) the Committee requests the Government to send its observations on the recent new allegations contained in the complainant's communication of 2 October 1999.
2. 73. The pending allegations, as submitted by the complainant organization (SINTRAVIDRICOL), and the allegations submitted in their communication of 2 October 1999 are as follows:
   • -- after hiring a former official of the Ministry of Labour (Regional Director of Labour and Social Security of Cundinamarca) as Human Resources Director on 4 September 1994, the CONALVIDRIOS enterprise embarked on an anti-union policy, failing to recognize the participation of the union in the joint committees (on labour relations, occupational health, sports and catering) established in the collective agreement; the Ministry of Labour was informed accordingly;
   • -- the enterprise has embarked on an anti-union policy of reducing the union's membership, granting those who resign from the union privileges such as loans, promotions and bonuses, which is further aggravated by the fact that some of these, such as leave and housing loans, are statutory benefits for which provision is made in the collective agreement; as a result of this policy, approximately 200 members have resigned from the union; the intention is to turn the trade union into a minority organization, which under Colombian law would result in the loss of substantial guarantees, especially in terms of power to represent the workers vis-à-vis the employer; the Ministry of Labour was informed accordingly;
   • -- the Ministry of Labour issued Decisions Nos. 0072 and 0073 of 18 January 1995 revoking previous administrative decisions registering the executive committees of the trade union. The revocation of these decisions was inappropriate and the representatives of the trade union had not been duly notified of it. Once these administrative decisions had been issued, the CONALVIDRIOS S.A. enterprise proceeded to dismiss six trade union officers, followed by 14 other trade union leaders. The person who instigated these dismissals and the above-mentioned decisions was the enterprise's Human Resources Director (a former official of the Ministry of Labour), who used all the powers vested in him, while the Ministry of Labour failed to deal impartially with the complaints concerning these matters;
   • -- the enterprise stopped granting trade union leave for which provision had been made in the collective agreement;
   • -- when the trade union convenes assemblies, the enterprise invents games, parties, sports and other activities, and members who speak at a meeting are dismissed the next day; members live in constant fear of losing their jobs; human rights are clearly being violated; trade union officers cannot speak to their fellow workers, and if they do they are transferred to another workstation or shift; the authorities and the Colombian judiciary have done nothing about this;
   • -- the enterprise confiscates from the workers bulletins distributed by the trade union, thus infringing freedom of expression; on one occasion when trade union officers came to the entrance of the enterprise in order to distribute the information bulletin, the security guards set the dogs on them, threatening their lives;
   • -- the enterprise brought criminal charges against the chairperson and the secretary of the national executive of the trade union for libel and slander but was unable to prove its accusations. To date, the union has brought over 100 legal actions (lawsuits, ordinary claims and special claims for trade union immunity and a criminal suit, which is currently being investigated by the Public Prosecutor's Office No. 68 of Santafé de Bogotá). According to the complainant, the labour courts and the labour administration authorities have been informed of all these facts, without any appropriate action being taken by the Ministry of Labour;
   • -- the enterprise also brought criminal charges against seven officers of the Soacha local executive committee of the trade union for alleged procedural fraud, false impersonation and falsifying documents. The trade union brought criminal charges against four managers of the enterprise for trade union persecution (section 272 of the Penal Code);
   • -- finally, the complainant attaches a copy of a judgement of the Supreme Court of Justice dated 21 January 1997, in which it is acknowledged that the CONALVIDRIOS S.A. enterprise exerted pressure on the workers in order to obtain their withdrawal from the trade union and ordered the enterprise "to refrain in future from acts aimed at preparing or processing withdrawal of trade union membership or any conduct aimed at obtaining the withdrawal of workers from membership of the enterprise trade union".
   • -- in the enterprises of the Santa Domingo Group, it has proved impossible to elect a full executive board because the workers are frightened that the company will dismiss them the very next day (there are several instances of proceedings being initiated in defence of trade union immunity where the courts have ruled in favour of the persons dismissed and yet they were again dismissed a few days later on false charges);
   • -- the National Assembly of Delegates was held from 20-26 September 1999 and six permits were requested well in advance, as required by agreement; however, the company only granted three and as a result the Buga section was not able to participate;
   • -- the Buga section has been unable to elect its executive board for over three years, as the workers are too afraid to be candidates.

B. The Government's reply

1. 74. In its communication dated 9 March 2000, the Government states that on 2 November 1999 the Ministry of Labour and Social Security ordered an administrative investigation into SINTRAVIDRICOL's allegations, including those contained in the communication of 2 October 1999. The demands on which the administrative inquiry was conducted, as requested by the interested parties, are as follows:
   • -- dismissal of several trade union officials in 1995, 1996, 1997 and 1998;
   • -- refusal to grant some requests for trade union leave;
   • -- refusal to allow members to seek assistance in the event of disciplinary procedures;
   • -- since 1994, refusal by the company to recognize or allow the functioning of certain committees provided for in the collective agreement to help resolve problems with the workers;
   • -- refusal to allow information to be distributed among members;
   • -- hindering the possibility for trade union officials to move around within the factories;
   • -- refusal by the administration of CONALVIDRIOS S.A. to accept trade union officials as representatives of the union's members;
   • -- loss of employment without the trade union members receiving the compensation stipulated in the agreement and by law.
2. 75. The Government adds that the investigation has been carried out to verify the allegations of the complainant organization, bearing in mind that it has abandoned its original complaint only as regards the aspects relating to economic assistance and the payment of trade union dues. The special Inspection, Monitoring and Control Unit inquired into the following allegations:
   • -- the enterprise has allegedly embarked on an anti-union policy of reducing the union's membership, granting those who resign from the union privileges such as loans, promotions and bonuses, which is further aggravated by the fact that some of these, such as leave and housing loans, are provided for in the collective agreement. As a result of this policy, approximately 200 members have resigned from the union;
   • -- dismissal of trade union officials following a complaint submitted by the union's executive board that was resolved by Decisions Nos. 0072 and 0073 of 18 January 1995;
   • -- when the trade union convenes assemblies, the enterprise invents games, parties, sports and other activities, and members who speak at a meeting are dismissed the next day;
   • -- in a judgement of the Supreme Court of Justice dated 21 January 1997, the enterprise was ordered "to refrain in future from acts aimed at preparing or processing withdrawal of trade union membership or any conduct aimed at obtaining the withdrawal of workers from membership of the enterprise trade union".
3. 76. In its communication of 9 May 2000, the Government states that the Ministry of Labour and Social Security mandated the Dinamarca Local Division to carry out the respective labour administrative inquiries related to the allegations about which the SINTRAVIDRICOL had pursued in its complaint. It was decided, through Ministerial Resolution No. 0661 of 3 May 2000, not to take any administrative measure against CONALVIDRIOS, for the following reasons: (a) the regular labour jurisdictions are the ones which have jurisdiction to decide whether workers were dismissed for just cause; (b) the complainants have not submitted evidence to support their allegations as regards the refusals of trade union leave, the recognition of trade union organizations, the non-functioning of some committees provided for in the collective agreement, the obstacles to proper industrial relations and the violations of the right to associate. The complainants are still within the prescribed time limits to file revision or appeal proceedings should they so wish.
4. 77. The Government specifies that SINTRAVIDRICOL has several options in defending its rights if it believes that they are in danger of being undermined: it can bring its case before the ordinary labour courts or before the penal courts in respect of the violation of freedom of association, or it can appeal for the courts' protection if its fundamental rights have been violated by CONALVIDRIOS.

C. The Committee's conclusions

1. 78. The Committee observes that the complainant organization in this case had alleged a number of acts of anti-union interference and discrimination by the management of CONALVIDRIOS S.A., as well as non-compliance by it of the terms of the collective agreement. In its previous examination of the case, the Committee requested the Government to order a thorough investigation into each of the allegations and to keep it informed of the findings.
2. 79. The Committee notes the Government's statements that the Ministry of Labour and Social Security has carried out an administrative inquiry into the allegations presented by SINTRAVIDRICOL, and that it was decided, through Ministerial Resolution No. 0661 of 3 May 2000, not to take any administrative measure against CONALVIDRIOS since the regular labour jurisdictions are the ones which have jurisdiction to decide whether workers were dismissed for just cause, and because the complainants have not submitted evidence to support their allegations as regards the refusals of trade union leave, the recognition of trade union organizations, the non-functioning of some committees provided for in the collective agreement, the obstacles to proper industrial relations and the violations of the right to associate. The complainants are still within the prescribed time limits to file revision or appeal proceedings should they so wish.
3. 80. The Committee emphasizes that the initial complaint was presented by the complainant in communications of April and May 1998 and deeply regrets that until very recently, for a period of two years during which it did not send sufficiently detailed information, the Government should have merely stated that it was up to the courts to make a decision on the dismissals of 20 trade unionists and that the complainants had not submitted evidence to substantiate their allegations. The Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of trade union leaders dismissed by an enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned (Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 748-749). That being so, the Committee stresses that the dismissed trade union leaders may launch the corresponding judicial proceedings and requests the Government to keep it informed of the results of any proceedings filed against Ministerial Resolution No. 0661 of 3 May 2000.
4. 81. Finally, the Committee observes that, according to the Government, the SINTRAVIDRICOL trade union has in this case the option of bringing its case before the ordinary courts or before the penal courts on the grounds that its freedom of association has been violated or of seeking the courts' protection if its fundamental rights have been violated by CONALVIDRIOS S.A. In these circumstances, observing that the complainant refers to more than 100 judicial proceedings with respect to trade union rights violations on which the courts have already ruled, the Committee requests the Government to inform it of any court decision that may be or has been handed down in connection with the allegations presented by the complainant.

The Committee's recommendations

1. 82. In the light of its foregoing conclusions, the Committee invited the Governing Body to approve the following recommendations:
   • (a) Deploring the fact that, in spite of the time that has passed since the complaint was initially lodged in April 1998, the Government had not sent sufficiently detailed information, and that it merely stated that it was up to the courts to make a decision on the dismissals of 20 trade unionists and that the complainants had not submitted evidence to substantiate their allegations, the Committee stresses that the dismissed trade union leaders may launch the corresponding judicial proceedings and requests the Government to keep it informed of the results of any proceedings filed against Ministerial Resolution No. 0661 of 3 May 2000.
   • (b) The Committee requests the Government to inform it of any court decision that may be or has been handed down in connection with the allegations presented by the complainant.