Interim Report - Report No 334, June 2004

Case No 2046 (Colombia) - Complaint date: 17-AUG-99 - Closed

Allegations: Dismissals and disciplinary measures against officials of SINALTRABAVARIA for participating in a strike in the company; failure to comply with the collective agreement, refusal to deduct trade union dues, intimidation of workers to force them to sign a collective agreement and preventing the union from entering the premises to advise workers in that connection, the refusal to allow trade union leave and the dismissal of many officials and members of various branches and pressure to accept a voluntary retirement plan; the refusal to register the trade union organization USITAC, alleged by SINALTRABAVARIA and SINALTRAINBEC, dismissals, disciplinary measures and transfers for trying to establish this organization; mass dismissals due to the conversion of the Caja de Crédito Agrario into the Banco de Crédito Agrario and dismissal of trade union officials in disregard of their trade union immunity and failure to comply with the orders for reinstatement by the Caja de Crédito Agrario of some of these officials. A number of allegations presented by SINALTRABAVARIA, including denial of leave for trade union affairs, pressure on workers to resign from the union, disciplinary measures, requests to revoke trade union registration and the untimely closure of enterprises, among others

1. 321. The Committee last examined this case at its November 2003 meeting [see 332nd Report, paras. 426-457].
2. 322. SINALTRAINBEC sent new allegations in a communication dated 9 October 2003.
3. 323. The Government sent its observations in communications dated 24 December 2003, 22 January, 16 February and 1 March 2004.
4. 324. 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).
5. 325. In a communication dated 5 May 2004, SINALTRAINBEC sent new allegations concerning the facts which have already been denounced.

A. Previous examination of the case

1. 326. At its meeting in November 2003, when it examined allegations relating to acts of anti?union discrimination and persecution at a number of undertakings, the Committee made the following recommendations [see 332nd Report, para. 457]:
   • (a) With regard to the alleged dismissals and disciplinary measures against members of the National Union of Bavaria S.A. Workers (SINALTRABAVARIA) for having participated in the strike of 31 August 1999, the Committee expresses its firm hope that the Government will take all possible measures to ensure that all workers and trade union officials who were dismissed and disciplined as a result of this strike will, as soon as possible, have their cases dealt with in the labour courts, and requests the Government to keep it informed in this respect.
   • (b) With regard to the allegations presented by SINALTRABAVARIA concerning intimidation of workers to make them sign a collective agreement and preventing the union from entering the premises to advise workers in that connection, the Committee requests the Government to take the necessary steps to ensure that the trade union organization can negotiate freely and that workers are not intimidated into signing a collective agreement against their will and without the advice from the trade union organization to which they belong. The Committee requests the Government to keep it informed in this respect.
   • (c) With regard to non-compliance with the collective agreement by the Bavaria S.A. enterprise, which gave rise to resolutions Nos. 2553 and 2554 of 19 November 2002 in favour of the enterprise, the Committee requests the Government to keep it informed of the outcome of the appeals against these.
   • (d) With regard to the untimely closure of enterprises, the dismissal of many officers and members of various branches and pressure to accept a voluntary retirement scheme, the Committee requests the Government to carry out an investigation to determine whether the retirements were in effect voluntary or whether pressure was brought to bear on the workers, and to keep it informed in this respect.
   • (e) The Committee requests SINALTRABAVARIA to provide the list of trade union members to the enterprise so as to ensure that the deduction of trade union dues is carried out without delay.
   • (f) With regard to the complainant organization not attending hearings called by the Ministry of Labour, the Committee considers that whenever the complainant organizations abandon the administrative claims they have filed, the administrative authority should refrain from issuing resolutions in this respect. The Committee requests the Government to ensure that notification of hearings in the framework of the administrative proceedings in progress, take place expeditiously within the legal time limits.
   • (g) With regard to the mass dismissals due to the conversion of the Caja de Crédito Agrario into the Banco de Crédito Agrario, the Committee requests the Government to keep it informed of any legal action begun by the workers to obtain compensation for dismissal following the closure of the Caja de Crédito Agrario and expresses its firm hope that, as this is an issue of labour debt, these claims will be examined as quickly as possible.
   • (h) As regards the dismissal of trade union officers due to failure to recognize their trade union immunity and failure to comply with the orders for reinstatement of some of those officers by the Caja de Crédito Agrario, taking into account that the legal rulings ordered reinstatement and according to the Government this is impossible, the Committee requests the Government to take steps to find a solution that can be agreed upon by the administration and the trade union officers in question, which might consist of compensation. The Committee requests the Government to keep it informed in this respect.
   • (i) The Committee requests the Government to take steps to ensure that USITAC, SINALTRAINBEC and UNITAS are registered in the trade union registry without delay as soon as the legal requirements are complied with and to keep it informed in this respect.
   • (j) With regard to the dismissals of trade union officers and members who enjoyed trade union immunity in their capacity as founders and other trade union members as a result of the creation of USITAC, the Committee requests the Government to take the necessary steps to ensure that an investigation in this regard is carried out and, if it is confirmed that these dismissals occurred as a result of anti-union discrimination, that it immediately ensure the reinstatement of the workers affected and, if the reinstatement is not possible, that they be fully compensated. The Committee requests the Government to keep it informed in this respect.
   • (k) As regards the closing of the Colenvases plant, which led to the dismissal of 42 workers, and of seven trade union leaders in violation of their trade union preferential rights, and in violation of the labour ministry resolution authorizing said closing provided that clauses 14 and 51 of the collective agreement were applied, the Committee requests the Government to provide a copy of the relevant court decisions as soon as they are issued.
   • (l) With regard to allegations relating to administrative disciplinary measures imposed on the workers of SINALTRABAVARIA, the Committee requests the Government to take measures for the holding of an independent investigation to determine whether the internal work rules have been applied uniformly to all workers regardless of whether or not the workers are unionized, and to keep it informed in this respect.
   • (m) With regard to the allegations relating to dismissals presented by SINALTRAINBEC and the allegations of anti-union discrimination presented by SINALTRABAVARIA: disciplinary measures against workers and pressure on them to resign from their trade unions; denial of trade union leave and access of trade union officials belonging to SINALTRABAVARIA to workplaces; delay on the part of the Ministry of Labour to carry out labour inspections to confirm anti-union activity in the enterprise and in the registration of new executive committees; hiring by the enterprise, as a labour cooperative of workers that it had dismissed. The Committee requests the Government to send its observations without delay so that it may examine the case in full possession of the facts.

B. New allegations

1. 327. In its communication of 9 October 2003, the Colombian Union of Beverage Industry Workers (SINALTRAINBEC) states that dismissals of its members are continuing, as well as efforts to put pressure on workers to leave the union. It adds that given the refusal to grant trade union leave that had been requested, an application for protection of constitutional rights (tutela) was brought before the judges of Itagüi on 5 June 2003. This included a request to be treated on an equal footing with the union SINTRACERVUNION, with the same trade union leave as provided for in the collective agreement. Mr. William de Jesús Puerta Cano is subject to criminal prosecution for having initiated these proceedings. In a recent communication, SINALTRAINBEC sent new allegations concerning the facts which have already been denounced.
2. 328. At the same time, as regards the dismissal of Jaime Romero, for whom the Committee had called for reinstatement or full compensation, the complainant states that he initiated tutela proceedings before the Supreme Court in October 2002 because he had not been reinstated; the application was turned down by Ruling No. 138 of November 2002.

C. The Government’s reply

1. 329. In its observations of 24 December 2003, 22 January, 16 February and 1 March 2004, the Government sent the following observations.
2. 330. Item (a) of the recommendations: As regards the allegations of dismissals and disciplinary measures against members of SINALTRABAVARIA for taking part in a work stoppage at the undertaking on 31 August 1999, the Government indicates that the proceedings that have been initiated are at the preliminary stage of hearing evidence and a copy of the rulings will be provided when they are issued. More specifically, as regards the case brought by Alfonso Maigual Valdés and José Luis Salazar, Labour Court 16 of the Bogotá Circuit conducted a hearing on 24 November 2003 at which the judicial review requested by the parties was begun and a date of 24 March 2004 was set for the continuation. With regard to Luis Alfredo Quintero Velásquez, the 9th Labour Court of the Bogotá Circuit declared the preliminary (evidence) stage closed on 10 November 2003, and a date of 2 April 2004 was set for hearing the Court’s ruling.
3. 331. Item (b) of the recommendations: With regard to the allegations presented by SINALTRABAVARIA concerning intimidation of workers to make them sign a collective labour pact and preventing the union from entering the premises to advise workers in that connection, the Committee states that the workers in question have recourse to the appropriate judicial body which has the power to resolve disputes on points of law. The Government adds that since there is no agreement between the parties, an arbitration tribunal was convened and gave a ruling on 14 November 2003; the trade union appealed against this ruling. Furthermore, in accordance with labour legislation currently in force, collective labour pacts are concluded with non-unionized workers, so that any participation by a trade union must be within its own organization. The collective agreement is an individual agreement which cannot be used specifically to benefit trade union members, under the terms of section 481 of the Substantive Labour Code which was replaced with section 69 of Act No. 50 of 1990.
4. 332. Item (c) of the recommendations: With regard to non-compliance with the collective agreement by the Bavaria S.A. enterprise, which gave rise to resolutions Nos. 2553 and 2554 of 19 November 2002 in favour of the enterprise, subject to pending appeals, the Government states that these appeals were turned down on the grounds that they had been lodged outside the legal deadlines, under the terms of an order of 6 December 2002.
5. 333. Item (d) of the recommendations: With regard to the untimely closure of enterprises, the dismissal of many trade union officers and members of various branches and pressure to accept a voluntary retirement scheme, the Government states that resolution No. 015 of 10 January 2003 issued by the Inspection and Oversight Group of the Cundinamarca Territorial Directorate states that "... most of the sites are functioning, albeit with workers from temporary service enterprises, ... the enterprise terminated the employment contracts of its workers by mutual agreement, which led to the conclusion of conciliation agreements under the auspices of the inspection departments of this Ministry and the relevant Chamber of Commerce. Similarly, examination of the conciliation agreements concluded under the auspices of the Chamber of Commerce and municipal labour inspectorates involved in the complaint and appended to the enterprise investigation file shows that the parties entered into an agreement freely and voluntarily with the authorities competent to effect conciliation in accordance with Act No. 446 of 1998 (section 77), as amended by Act No. 640 of 2001 ..."; and "on the other hand, as noted by the different departments of this Ministry, the enterprise concerned is functioning at a number of plants where there has been no repeated indication that workers, by agreement with the employer, have terminated their employment contracts, and it is therefore concluded that the material submitted in evidence in the present investigation does not support the allegation of untimely closure made by SINALTRABAVARIA".
6. 334. Items (g) and (h) of the recommendations: With regard to the mass dismissals due to the conversion of the Caja de Crédito Agrario into the Banco de Crédito Agrario, and the failure to comply with orders for the reinstatement of certain trade union officers at SINTRACREDITARIO, in connection with which the Committee had requested the Government to take steps to find a solution that could be agreed upon by the administration and the trade union officers in question, which might consist of compensation, the Government maintains that some decisions upholding trade union immunity went against the enterprise and ordered reinstatement, but, given that the Caja de Crédito Agrario is in liquidation, and could not therefore comply with the reinstatement order, conciliation was obtained with a group of workers who wished to do so and a resolution was adopted for workers who did not agree to conciliation based on the judgement of the Council of State according to which: "the entity affected by the court ruling shall issue an administrative act setting out the reasons that make it impossible to implement the reinstatement order, such as the absence of any jobs on the payroll at the same or higher category for the ex-worker concerned, in the light of the functions he or she carried out and the nature of his or her current duties ..."; and "If reinstatement is impossible, the individual right of the applicant shall be safeguarded by acknowledgement of the arrears of wages owed from the time at which the post was abolished until the notification of the administrative act setting out the reasons why reinstatement is impossible."
7. 335. Item (i) of the recommendations: With regard to registration of USITAC, SINALTRAINBEC and UNITAS, which according to the Government was refused owing to legal flaws and regarding which the Committee requested the Government to carry out registration without delay as soon as the legal requirements were complied with, the Government refers to information sent previously, in which it had questioned whether the trade union organization’s real intention was to defend trade union rights, as opposed to their own jobs, disregarding the law and the union’s social objectives. As regards the registration of USITAC, the Government states again that by resolution No. 00027 of 15 January 2003, the Labour, Employment and Social Security Group of the Atlantic Territorial Department refused registration on grounds of failure to comply with constitutional requirements. The trade union once again applied for registration of its founding charter, executive board and by-laws, which was refused by resolution No. 000272 of 28 February 2003 on grounds that the existing administrative avenues were exhausted, which was confirmed by resolution No. 0602 of 30 April 2003.
8. 336. Item (j) of the recommendations: With regard to the alleged persecution of 47 founder members of USITAC, in connection with which the Committee had asked the Government to take the necessary steps to ensure that an investigation in this regard would be carried out and, if it were confirmed that these dismissals occurred as a result of anti-union discrimination, to immediately ensure the reinstatement of the workers affected and, if the reinstatement was not possible, to ensure that full compensation was paid, the Government states that according to the enterprise, it had always respected the right of freedom of association and the dismissals in question had been a response to real and serious misconduct involving infringements of internal regulations and labour law. The enterprise had not sought the suspension of trade union immunity because in its view the organization in question had never existed. The Government also indicates that the Ministry of Social Protection is not competent to evaluate dismissals of workers with trade union immunity, as this involves value judgements; it is the labour courts that are competent in this area, and it is incumbent on the worker concerned to initiate legal proceedings.
9. 337. As regards the cases of William de Jesús Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the enterprise had sought a suspension of trade union immunity from the labour courts in view of the information submitted by the company according to which they had committed serious misconduct, in breach of their contracts of employment, internal regulations and labour law.
10. 338. As regards the refusal to allow trade union leave for USITAC officials, the enterprise indicates that there have not to its knowledge been any such requests from that organization. With regard to the seizure of trade union bulletins and the matter of trade union leave, the Government further states that the Ministry of Labour and Social Security gave a ruling in resolution No. 2817 in 2002.
11. 339. Item (l) of the recommendations: With regard to allegations relating to administrative disciplinary measures imposed on the workers of SINALTRABAVARIA, concerning which the Committee had requested the Government to take measures for the holding of an independent investigation to determine whether the internal work rules had been applied uniformly to all workers regardless of whether or not they were unionized, the Government states that the Ministry of Social Protection is not competent to launch investigations on the application of the disciplinary measures adopted by the company against non-unionized workers, because this would mean making value judgements for which labour judges alone are competent.
12. 340. Item (m) of the recommendations: With regard to allegations relating to dismissals presented by SINALTRAINBEC and the allegations of anti-union discrimination presented by SINALTRABAVARIA (pressure on workers to resign from the trade union; denial of trade union leave and access of trade union officials belonging to SINALTRABAVARIA to workplaces; delay on the part of the Ministry of Labour to carry out labour inspections to confirm anti-union activity in the enterprise and in the registration of new executive committees; hiring by the enterprise as a labour cooperative of workers that it had previously dismissed). With regard to the alleged harassment of SINALTRAINBEC members, the Ministry of Labour and Social Security in resolution No. 2817 of 2002 gave a final ruling on the alleged violation of freedom of association, taking into account the fact that resolutions Nos. 3467 of 31 December 2002 and 666 of 8 April 2003 had resolved the matter of appeal. The Attorney-General’s Office also carried out an investigation and dismissed the case on jurisdictional grounds. As regards the pressure put on members of SINALTRAINBEC to accept the retirement plan at CERVECERIA UNION S.A., the Ministry of Labour and Social Security stated in its resolution No. 3467 of 31 December 2002 that "as regards the early retirement plan which according to the trade union was intended to put an end to the sub-department, this office finds that it has not been shown that this was the case and that, according to information in the case file, the plan has been accepted by 73 workers at CERVECERIA UNION S.A. of whom about 16 were members of SINALTRAINBEC".
13. 341. As regards the most recent allegations made by SINALTRAINBEC, the Government states with regard to the dismissals that the employer may dismiss workers for valid reasons provided that these are duly proven and, where they are not, the worker is entitled to compensation. If the worker concerned believes that there was no valid reason, he can appeal to the ordinary labour courts before having recourse to international bodies.
14. 342. With regard to the refusal to grant trade union leave, the Government states, that according to the company, some 80 per cent of such leave requested was granted. It adds that the Ministry of Labour and Social Security, in resolution No. 2817 of 18 November 2002, states that "this office considers that in general trade union leave, the associated payments and the length of leave or number of instances of leave are determined in collective labour agreements between the company and the majority trade union at the company, which would mean that any leave granted beyond what is provided for in the collective agreement must be consistent with the law, namely section 57(6) of the Substantive Labour Code, according to which such leave is not paid and is subject to certain other restrictions". As regards the constitutional protection (amparo) proceedings initiated by William Jesús Puerta Cano, the Government indicates that the application was turned down as inadmissible on the grounds that the judges competent in such cases cannot assume the functions of labour judges. With regard to the alleged intimidation by management to make workers leave the union, Attorney-General’s Office 121 in Itagüí found that "it is difficult to determine that the CERVECERÍA UNIÓN S.A. through its managers has had the policy of breaking up the union, especially as the relations between a company and a trade union are sometimes difficult by virtue of the inherent conflict of interests, but that does not mean that there were any violations of the guaranteed rights of association and assembly or that the relevant provisions were infringed, and it does not appear from the investigation that there was any agreement on the part of managers, that there should be any pressure on these employees to force them to leave the union. However, situations arose during the year in question in connection with economic difficulties that may have created a climate of disquiet and fear among workers, and this, and the anonymous posters that appeared without management approval, may have been the cause of the abandonment by SINALTRAINBEC members of the union in collective talks and the reason for workers leaving the union in large numbers, as well as the lack of interest on the part of managers in a trade union which posed no threat to the company since it did not play a major role".

D. The Committee’s conclusions

1. 343. The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprises concerned, on the questions at issue.
2. 344. Item (a) of the recommendations: As regards the allegations of dismissals and disciplinary measures against members of SINALTRABAVARIA for participating in a work stoppage at the enterprise on 31 August 1999, the Committee takes note of the Government’s information according to which the proceedings are at the preliminary (evidence) stage. Taking into account the considerable time that has elapsed since the alleged acts took place, the Committee firmly expects that the labour courts will give a ruling as soon as possible and requests the Government to keep it informed in this respect. The Committee recalls that justice delayed is justice denied.
3. 345. Item (b) of the recommendations: With regard to the allegations presented by SINALTRABAVARIA concerning intimidation of workers to make them sign a collective labour pact and preventing the union from entering the premises to advise workers in that connection, the Committee recalls that there are collective agreements between the company and the trade unions and notes that according to the Government, it cannot pronounce itself on legal disputes and that the trade union concerned can seek redress from the courts. The Committee also notes that according to the Government, legislation provides for conclusion of the collective agreement with non-unionized workers and, consequently, does not give rise to the participation of the trade union. The Committee recalls that according to the Collective Agreements Recommendation, 1951 (No. 91): "For the purpose of this Recommendation, the term "collective agreements" means all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more representative workers’ organisations, or, in the absence of such organisations, the representatives of the workers duly elected and authorised by them in accordance with national laws and regulations, on the other." The Committee emphasizes that the Recommendation stresses the role of workers’ organizations as one of the parties in collective bargaining. Direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 786]. For this reason, the Committee strongly requests the Government to ensure that no individual negotiations take place with workers to induce them to sign a collective labour pact that excludes the trade unions.
4. 346. Item (c) of the recommendations: With regard to the alleged non-compliance with the collective agreement by the Bavaria S.A. enterprise, the Committee notes the Government’s information concerning the rejection of appeals lodged by SINALTRABAVARIA against resolutions Nos. 2553 and 2554 of November 2002, which were favourable to the company, on the grounds that the appeals were lodged outside the legal deadlines. The Committee requests the Government to take steps to ensure that the enterprise complies with the collective agreements that it has signed.
5. 347. Item (d) of the recommendations: With regard to the allegations by SINALTRABAVARIA regarding the untimely closure of enterprises, the dismissal of many trade union officers and members of various branches and pressure so that they accept a voluntary retirement scheme, the Committee notes that according to resolution No. 015 of 10 January 2003 by the Cundinamarca Inspection and Oversight Group there were no such closures, and that the enterprises in question continued to operate with temporary workers. The Committee notes that according to the inspectorate, workers were not dismissed but signed conciliation agreements, the validity of which was not legally challenged. The Committee requests the Government to indicate whether the trade union has lodged any appeal against the resolution.
6. 348. Item (h) of the recommendations: As regards the dismissal of trade union officers of the Caja de Crédito Agrario, in disregard of trade union immunity and in contravention of the rulings ordering the reinstatement of a number of these officers, the Committee notes that according to the Government, in view of the impossibility of reinstating the workers owing to the fact that the Caja de Crédito Agrario is in liquidation, conciliation procedures have been carried out with some of the workers, while for those who did not accept conciliation a resolution was adopted based on the Council of State decision according to which the entity concerned must give the reasons why reinstatement is not possible in the form of an administrative act and, in view of the impossibility of reinstatement, applicants’ individual rights shall be safeguarded by acknowledgement of arrears of wages and other benefits owed from the time the posts were abolished until the notification of an administrative act setting out the reasons why reinstatement is not possible. The Committee requests the Government to indicate whether wages and other benefits owed to workers have been paid in accordance with the resolution in question and if this is not the case, to ensure immediate payment.
7. 349. Item (i) of the recommendations: As regards the refusal to register the trade union organizations USITAC, SINALTRAINBEC and UNITAS, on the grounds according to the Government of legal flaws, the Committee notes that the Government refers to previous observations in which it stated its reservations regarding the unions’ intentions at the time they were established and wonders if in reality the purpose was not to secure job stability. The Committee emphasizes that the question of the unions’ intentions at the time of the establishment of USITAC, SINALTRAINBEC and UNITAS is a matter for the unions, not the Government. The Committee recalls that Article 2 of Convention No. 87, ratified by Colombia, states that "workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation". That right involves two possibilities: either to join an existing organization, or to create a new one that is independent of existing organizations. In these conditions, the Committee once again urges the Government to ensure that the authorities register USITAC, SINALTRAINBEC and UNITAS and to keep it informed in this regard.
8. 350. Item (j) of the recommendations: With regard to the dismissals of trade union officers and members who enjoyed trade union immunity in their capacity as union founders and of other trade union members as a result of the creation of USITAC, the Committee notes that according to the Government, the Ministry of Social Protection is not competent to examine dismissals of workers with trade union immunity, as this pertains to the labour courts and it is the workers concerned who must initiate legal proceedings. The Committee requests the Government to ensure an adequate and speedy functioning of the legal procedures. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom, and that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct [Digest, op. cit., paras. 724 and 727]. The Committee notes that this protection is reflected in Colombia in the "trade union immunity" which makes it impossible for an employer to dismiss a trade union officer without a valid reason reviewed by a labour court judge (sections 405 ff. of the Substantive Labour Code). Under these circumstances and given that that Colombian law (section 406a of the Code) gives special protection to founders of a trade union organization, the Committee requests the Government to indicate whether the enterprise sought judicial authorization before the dismissal and, if not, to indicate whether the trade union officers concerned have lodged the corresponding appeals and what was the outcome.
9. 351. As regards the allegations concerning officers of SINALTRAINBEC, William de Jesús Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Committee notes the Government’s information according to which the enterprise sought the suspension of trade union immunity from the labour court on the grounds of serious misconduct. The Committee requests the Government to keep it informed of the outcome of these actions.
10. 352. As regards the allegations regarding the dismissals of members of the complainant organization, the refusal to grant trade union leave to officers of USITAC and the seizure of trade union information bulletins by SINALTRAINBEC, the Committee notes that, in its last communication, SINALTRAINBEC refers to new allegations of the same kind. The Committee notes the Government’s information according to which the enterprise can dismiss workers if appropriate compensation is paid and that workers who object may apply to the labour courts. The Committee recalls that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities [Digest, op. cit., para. 707]. The Committee requests the Government to take measures to adapt its legislation and legal procedures in line with Conventions Nos. 87 and 98. The Committee requests the Government to indicate whether the workers have lodged appeals before the courts against the decisions to dismiss them.
11. 353. As regards the matter of trade union leave, the Committee notes the Government’s information that according to the enterprise, 80 per cent of such leave requested has been granted, by agreement with the majority union SINTRACERVUNION, and that the applicable legislation does not provide that trade union leave beyond that agreed in the collective agreement with the majority union should be paid. The Committee notes that the Ministry of Labour and Social Security has adopted Decision No. 2817 in this regard based on the same criterion. Under these circumstances the Committee requests the Government to invite the enterprise to enter into contact with both trade unions for the purpose of examining the possibility of granting trade union leave to the minority union SINALTRAINBEC, to allow it to exercise its trade union functions.
12. 354. Item (k) of the recommendations: As regards the closure of the COLENVASES plant, which led to the dismissal of 42 workers and seven trade union leaders without lifting their trade union immunity and in violation of the labour ministry resolution authorizing the closure provided that clauses 14 and 51 of the collective agreement in force were applied, the Committee recalls that in its previous examination of the case it had indicated that resolutions Nos. 2169, 2627 and 2938 regarding this matter had been appealed against by SINALTRABAVARIA before the administrative courts. The Committee recalls that justice delayed is justice denied. The Committee once again urges the Government to forward the court rulings as soon as they are handed down.
13. 355. Item (l) of the recommendations: With regard to allegations relating to disciplinary measures imposed on the workers of SINALTRABAVARIA, concerning which the Committee had requested the Government to take measures for the holding of an independent investigation to determine whether the internal statute had been applied uniformly to all workers, the Committee notes that according to the Government, the Ministry of Social Protection is not competent to initiate investigations into the effective application of disciplinary measures by the enterprise, since this involves value judgements. The Committee recalls that in its previous examination of the case, it had confined itself to requesting an investigation to ascertain whether the internal statute had been applied consistently to all workers so that the Committee could formulate its conclusions in this respect. The Committee emphasizes that it did not request that disciplinary measures be applied, or that disputed points be defined or rights stated, contrary to what appears to have been the interpretation of the Ministry of Social Protection. Under these circumstances, the Committee once again requests the Government to carry out an investigation to establish the facts and, in the light of the investigation’s conclusions, to indicate the avenues of legal redress available to the union to safeguard its rights, and to take measures to adapt its legislation and legal procedures in line with Conventions Nos. 87 and 98.
14. 356. Item (m) of the recommendations: With regard to the allegations relating to dismissals presented by SINALTRAINBEC through a system of early retirement the purpose of which was to eliminate the union, the Committee notes that according to the Government, the Ministry of Labour and Social Security in its resolutions Nos. 2817 and 3467 of 2002 decided that there was not sufficient evidence that the dismissals and the early retirement plan had anti-union objectives, and that some 73 workers, of whom only 16 were members of the union, joined the plan. The Committee requests the complainant organization to provide further information in this regard.
15. 357. With regard to allegations of anti-union discrimination presented by SINALTRABAVARIA (pressure on workers to resign from the trade union, denial of trade union leave, delay on the part of the Ministry of Labour in carrying out inspections to confirm anti-union activity in the enterprise and in the registration of new executive committees, and hiring by the enterprise as a labour cooperative, of workers that it had previously dismissed), the Committee notes that the Government has sent no observations in this respect, and once again requests it to do so without delay.
16. 358. As regards Mr. Romero, the Committee notes that according to the allegations presented by SINALTRAINBEC in its last communication, Mr. Romero has initiated constitutional protection (tutela) proceedings against the Government for its failure to implement the Committee’s recommendation that it take steps without delay to reinstate him, or, if that is impossible, to compensate him in full. The Committee notes that the Government has sent no observations on this matter, and requests it to indicate whether Mr. Romero has promptly received full compensation.
17. 359. The Committee takes note of the recent communication by SINALTRAINBEC which contains new allegations and requests the Government to send its observations in this respect.

The Committee's recommendations

1. 360. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations.
   • (a) The Committee requests the Government to solicit information from the employers’ organizations concerned with a view to having at its disposal their views, as well as those of the enterprises concerned, on the question at issue.
   • (b) With regard to the alleged dismissals and disciplinary measures against members of SINALTRABAVARIA for participating in a work stoppage at the enterprise on 31 August 1999, taking into account the time that has passed since the events occurred, the Committee firmly hopes that the labour courts will give a ruling as soon as possible, and requests the Government to keep it informed in this respect.
   • (c) With regard to the allegations concerning intimidation of workers to make them sign a collective agreement and preventing SINALTRABAVARIA from entering the premises to advise workers in that connection, the Committee strongly requests the Government to ensure that no individual negotiations take place with workers to induce them to sign a collective labour pact that excludes the trade unions.
   • (d) With regard to the alleged non-compliance with the collective agreement by the BAVARIA S.A. enterprise, the Committee requests the Government to take steps to ensure that the enterprise complies with the collective agreements that it has signed.
   • (e) As regards the allegations concerning the untimely closure of enterprises, the dismissal of many trade union officers and members of various branches, and pressure so that they accept a voluntary retirement scheme, in respect of which the Cundinamarca Inspection and Oversight Group decided in a resolution that the workers were not dismissed but signed conciliation agreements, and that there were no untimely closures of enterprises, the Committee requests the Government to indicate whether the trade union concerned has lodged any appeal against the resolution.
   • (f) As regards the dismissal of trade union officers at the Caja de Crédito Agrario, in disregard of trade union immunity and in contravention of the rulings ordering the reinstatement of a number of these officers, with regard to which the Council of State considered in a resolution that the individual rights of the applicants were safeguarded by acknowledgement of the arrears of wages owed from the time the posts were abolished until the notification of an administrative act setting out the reasons why reinstatement was not possible, the Committee requests the Government to indicate whether wages and other benefits owed to workers have been paid in accordance with the resolution in question, and if this is not the case, to ensure immediate payment.
   • (g) As regards the refusal to register the trade union organizations USITAC, SINALTRAINBEC and UNITAS on grounds of legal flaws, the Committee once again urges the Government to register USITAC, SINALTRAINBEC and UNITAS and to keep it informed in this regard.
   • (h) As regards the alleged dismissals of trade union officers and members who enjoyed trade union immunity in their capacity as union founders and of other trade union members as a result of the creation of USITAC, the Committee requests the Government to guarantee the rapid and adequate functioning of legal procedures and to indicate whether the enterprise sought judicial authorization before the dismissal and, if not, to indicate whether the trade union officers concerned have lodged the corresponding appeals and what was the outcome.
   • (i) With regard to the actions taken by the enterprise sought in the suspension of the trade union immunity of William de Jesús Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Committee requests the Government to keep it informed of the outcome of these actions.
   • (j) As regards the allegations concerning the dismissal of members of the complainant organization, the refusal to grant trade union leave to USITAC officers and the seizure of trade union information bulletins, the Committee requests the Government to take measures to adapt its legislation and legal procedures in line with Conventions Nos. 87 and 98. The Committee requests the Government to indicate whether the workers have lodged appeals against the decisions to dismiss them, and to invite the enterprise to engage in negotiations with SINTRACERVUNION and SINALTRAINBEC for the purpose of examining the possibility of granting trade union leave to the minority union SINALTRAINBEC to allow it to exercise its trade union functions.
   • (k) As regards the closure of the COLENVASES plant, the Committee once again urges the Government to forward the court rulings as soon as they are handed down.
   • (l) With regard to the allegations concerning disciplinary measures against members of SINALTRABAVARIA, the Committee once again requests the Government to carry out an investigation to establish the facts and, in the light of the investigation’s conclusions, to indicate the avenues of legal redress available to the trade union to safeguard its rights, and to take measures to adapt its legislation and legal procedures in line with Conventions Nos. 87 and 98.
   • (m) With regard to the allegations concerning anti-union discrimination presented by SINALTRABAVARIA (pressure on workers to resign from the trade union, denial of trade union leave, delay on the part of the Ministry of Labour in carrying out inspections to confirm anti-union activities in the enterprise and in the registration of new executive committees, and the hiring by the enterprise as a labour cooperative of workers that it had previously dismissed), the Committee once again requests the Government to send its observations in this respect without delay.
   • (n) With regard to allegations relating to dismissals presented by SINALTRAINBEC through a system of early retirement, the Committee requests the complainant organization to provide further information in this regard.
   • (o) With regard to the failure to implement the Committee’s recommendation for the reinstatement of or payment of full compensation to Mr. Romero, the Committee requests the Government to send its observations in this respect and to indicate whether Mr. Romero has promptly received full compensation.
   • (p) The Committee takes note of the recent communication by SINALTRAINBEC and requests the Government to send its observations in this respect.