Effect given to the recommendations of the committee and the Governing Body - Report No 338, November 2005

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

Effect given to the recommendations of the Committee and the Governing Body

1. 91. The Committee last examined this case in March 2005 [see 336th Report, paras. 285-326]. At that time, the Committee formulated the following recommendations:
   • (a) With regard to the alleged dismissing and sanctioning of workers belonging to SINALTRABAVARIA for participating in a strike at the company on 31 August 1999, the Committee recalls that justice delayed is justice denied and requests the Government to take the necessary measures to expedite the judicial procedure under way and to continue to keep it informed of the results of the actions and proceedings brought.
   • (b) With regard to 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 take the measures necessary to ensure, bearing in mind the time elapsed, that the procedures still to be completed for payment of salaries and benefits to the remaining workers are finalized quickly, and to keep it informed in this regard.
   • (c) With regard to the refusal to register the trade union organizations USITAC, SINALTRABET and UNITAS on grounds of legal flaws, the Committee recalls that, although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations and requests the Government to take measures to ensure that, as soon as the minimum requirements are fulfilled, the authorities proceed with registration of the trade unions USITAC, SINALTRABET and UNITAS.
   • (d) With regard to the actions taken by the enterprise in order to suspend 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 inform it as to whether the union officials have been finally dismissed and to give the reasons for such action being taken.
   • (e) With regard to the alleged subsequent dismissal without cause of SINALTRAINBEC officials and founders of the Trade Union of Workers in the Beverages and Foodstuffs Industry (USTIBEA), who also include William de Jesús Puerta Cano, together with Luis Fernando Viana Pariño, Edgar Darío Castrillón Munera and Alberto de Jesús Bedoya Ríos, on the grounds of serious disciplinary offences, the Committee requests the Government to take measures to ensure that an independent investigation is carried out to establish whether these dismissals took place following suspension of trade union immunity, and bearing in mind that, according to the information supplied by the Government, workers can only be reinstated once they have begun the appropriate legal action, to keep it informed of any legal action begun or cases brought with this aim. The Committee recalls that, if the competent authorities determine that the dismissals were of an anti-union nature, the unionists in question should be reinstated in their posts.
   • (f) As regards the legal impossibility to form industry unions grouping workers of various types of industry, the Committee recalls that, in conformity with Article 2 of Convention No. 87, workers have the right to form organizations of their own choosing and consequently it is for workers to determine the union structure they desire.
   • (g) With regard to the dismissal of members of the complainant organization SINALTRAINBEC, and the early retirement schemes adopted by the company and accepted by some members, the Committee requests the Government to keep it informed of any legal proceedings brought in respect of these measures.
   • (h) With regard to the closure of the COLENVASES plant, leading to the dismissal of 42 workers and seven union officials without trade union immunity being suspended and without complying with the Ministry of Labour’s resolution which authorized the closure but ordered the prior application of clauses 14 and 51 of the collective agreement in force, the Committee again requests the Government to keep it informed of the results of the legal proceedings brought by SINALTRABAVARIA before the administrative judicial authorities concerning resolutions Nos. 2169, 2627 and 2938 and to send a copy of the decisions made.
   • (i) With regard to the allegations presented by SINTRABAVARIA concerning pressure on workers to resign from the trade union, the Committee requests the Government to take measures to guarantee the full application of the principle that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities.
   • (j) With regard to the allegations presented by SINTRABAVARIA concerning the denial of trade union leave, the Committee requests the Government to ensure respect in future for the principles contained in Paragraph 10 of the Workers’ Representatives Recommendation, 1971 (No. 143), and to indicate whether proceedings have been brought against the company in this respect and, if so, whether the outcome was in favour of the employer.
2. 92. In a communication dated 11 May 2005, the Single Confederation of Workers of Colombia (CUT), in connection with the allegations presented by the Trade Union of Workers of the National Coffee Growers Federation of Colombia and Almacenes Generales de Deposito de Café S.A. (SINTRAFEC), states that the ordinary check-off of union dues is still not been made for workers who are not members of SINTRAFEC but benefit from the collective agreement concluded. According to the complainant, regardless of the Committee’s recommendations following earlier examination of the case requesting the Government to carry out an investigation, no information on the subject has as yet been received. The complainant adds that several workers have been dismissed, whose names appear in an appended list, including Alba Lucia Riós Mora, José Horacio Rivera Posada and Jaime Enrique Angulo, who were dismissed on the same day that notification was given that they had joined the trade union, and Luz Adriana Marquez Velasquez and Carlos Odilio Perala Ospina were dismissed eight days after joining. In addition, the National Coffee Federation regularly uses the associated labour cooperatives to replace workers on indefinite contracts, despite the fact that this is banned in the collective labour agreement.
3. 93. In a communication dated 8 June 2005, the National Trade Union of Workers in the Industry for the Production, Manufacture and Processing of Food and Dairy Products (SINALTRAPROAL) reports that the Council of State rejected the trade union’s complaint against the Ministry of Labour and Social Security’s resolution refusing to register the members elected to the Board of SINTRANOEL and also to register the change of status whereby the company-based union SINTRANOEL became an industry union (SINALTRAPROAL), both dated 23 May 1999, refusing furthermore to register the new members of the SINTRANOEL Board approved by the assembly on 6 June 1999. According to the Council of State, following the division of the company Industrias Alimenticias Noel to form two separate companies: Compania Galletas Noel S.A. and Industrias Alimenticias Noel S.A., workers in the employ of one of the companies could not sit on the board of the trade union of the other company and that there were no grounds for changing the company trade union organization into an industry organization because this occurred after the company had been divided into two separate companies.
4. 94. In its communication dated 12 August 2005, the Government states that, in regard to the alleged dismissals and sanctions against workers belonging to SINALTRABAVARIA for participating in a stoppage in the company on 31 August 1999, the cases in question are still before the labour court. To date, the Bavaria company has been found guilty of dismissal without cause, but it is not obliged to reinstate or pay either a retirement benefit or compensation to Mr. Luis Alfredo Quintero Velasquez; it was ordered to pay compensation to Mr. Alfonso Maigal Valdez and Mr. José Luis Salazar, on 4 February 2005. The Government adds that both the company and the workers have appealed, and these cases are currently ongoing.
5. 95. In regard to the dismissal of trade union officers of the Caja de Credito Agrario, in disregard of trade union immunity and in contravention of the rulings ordering the reinstatement of a number of these officers, the Government states that, of the total 34 court cases, 18 have been completed (13 acquittals and five convictions) and the remaining 16 are ongoing. In the cases culminating in convictions, the Caja de Credito Agrario in Liquidation has issued an administrative notice stating that it is physically and legally unable to effect reinstatement, and ordering the liquidation and payment of wages and benefits in arrears from the time the posts were abolished until the notification of the act stating that reinstatement was not possible.
6. 96. As regards the refusal to register the trade union organizations USITAC, SINALTRABET and UNITAS, the Government states that all the administrative remedies initiated by the trade union organizations have been exhausted and that judicial remedies are available but that, to date, no judicial proceedings have been initiated.
7. 97. As regards the actions taken by the enterprise to suspend the trade union immunity of William de Jésus Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Government states that the enterprise has withdrawn its application for suspension of trade union immunity for Messrs. Puerta, Rodas and Ruiz in light of the fact that they never had trade union immunity since the South Itagui directorate to which they belonged failed to meet the minimum qualifying requirements. The Government adds that their dismissals were justified by their refusal to attend training sessions. The Government further states that, with regard to Mr. Puerta Cano, the Superior Court of Medellín ruled that he did not qualify for trade union immunity; the cases of Messrs. Rodas and Ruiz are still before the ordinary court.
8. 98. In regard to the alleged subsequent dismissal without cause of SINALTRAINBEC officials and of founders of the Trade Union of Workers of the Beverages and Foodstuffs Industry (USTIBEA), including William de Jésus Puerta Cano, together with Luis Fernando Viana Patiño, Edgar Dario Castrillón Munera and Alberto de Jésus Bedoya Riós, on the grounds of serious disciplinary offences, the Government states that the Ministry for Social Protection does not have competence to initiate investigations into dismissals without cause, since this can only be performed by a judge. The Government states that it is up to workers to initiate proceedings for dismissal without cause and undertakes to inform the Committee of any legal proceedings that are initiated in this connection.
9. 99. As regards the contention that it is not legally possible to establish industry unions composed of members in the employ of different types of industries, as in the case of SINALTRAINBEC and USTIBEA, which have been refused registration, the Government states that this decision is based on public health and sanitary considerations in that this trade union organization would include workers from the food and alcoholic beverages industries, and denies that the decision is motivated in any way by anti-union discrimination policy.
10. 100. As regards the dismissals of workers belonging to the complainant organization SINALTRAINBEC, and the early retirement schemes adopted by the company and which were taken up by some members, the Government states that no legal proceedings have as yet been initiated.
11. 101. As regards the closure of the COLENVASES plant, leading to the dismissal of 42 employees and seven trade union leaders without suspending their trade union immunity and without complying with the Ministry of Labour’s resolution authorizing the closure but ordering prior compliance with clauses 14 and 51 of the collective agreement in force, the Government states that a verdict is awaited from the Administrative Dispute Tribunal and that the Committee will be informed as soon as it is handed down. The Government adds that the Ministry of Labour and Social Security issued resolution No. 2169 on 7 September 1999 ordering the company to comply with clauses 7 and 14, but that the subsequent resolution No. 2627 omits the word “prior”. These resolutions were confirmed by resolution No. 2938 of 20 December 1999.
12. 102. As regards the allegations presented by SINALTRABAVARIA concerning the pressure on workers to resign from the trade union, the Government states that no company has at any time brought pressure to bear on workers to relinquish trade union membership.
13. 103. As regards allegations presented by SINALTRABAVARIA concerning the denial of trade union leave, in connection with which the Committee requests information from the Government as to whether proceedings had been brought against the company in this connection and, if so, whether the outcome was in favour of the employer, the Government states that the employer has not been found guilty of denying trade union leave.
14. 104. With regard to the alleged dismissing and sanctioning of workers belonging to SINALTRABAVARIA for participating in a strike at the company on 31 August 1999, the Committee takes note of the decisions adopted to date, and further notes that the appeals launched both by the workers and by the company are ongoing. The Committee affirms that dismissing workers in connection with a legitimate strike constitutes grave discrimination in employment for exercising lawful trade union activity, contrary to Convention No. 98 [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 591] and requests the Government to continue to take the necessary measures to expedite the ongoing judicial proceedings and to keep it informed of the outcome of the proceedings and remedies initiated.
15. 105. With regard to the dismissal of trade union officers at the Caja de Credito 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 the Government states that of the total 34 court cases, 18 have been completed (13 acquittals and five convictions) and the remaining 16 are ongoing. In the cases culminating in convictions, the Caja de Credito Agrario in Liquidation has issued an administrative notice stating that it is physically and legally unable to effect reinstatement, and ordering the liquidation and payment of wages and benefits in arrears from the time the posts were abolished until the notification of the act stating that reinstatement was not possible. The Committee requests the Government to keep it informed of the outcome of the 16 remaining cases.
16. 106. As regards the refusal to register the trade union organizations USITAC, SINALTRABET and UNITAS, the Government states that all the administrative remedies initiated by the trade union organizations have been exhausted and that judicial remedies are available but that, to date, no judicial proceedings have been initiated. The Committee again reminds the Government that Convention No 87, Article 2, ratified by Colombia, provides that “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization.”, and that “although the founders of trade unions should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations” [see Digest, op. cit., para. 248]. Consequently, the Committee requests the Government to guarantee compliance with these principles and to take measures to ensure that as soon as the minimum legal requirements are met, the authorities indeed proceed to enrol the trade union organizations USITAC, SINALTRABET and UNITAS on the trade union register.
17. 107. As regards the actions taken by the enterprise to suspend the trade union immunity of William de Jésus Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Committee notes that, with regard to Mr. Puerta Cano, the Superior Court of Medellín ruled that he did not qualify for trade union immunity; the cases of Messrs. Rodas and Ruiz are still before the ordinary court. The Committee requests the Government to keep it informed of the final outcome of these remedies.
18. 108. In regard to the alleged subsequent dismissal without cause of SINALTRAINBEC officials and of founders of the Trade Union of Workers of the Beverages and Foodstuffs Industry (USTIBEA), including William de Jésus Puerta Cano, together with Luis Fernando Viana Patiño, Edgar Dario Castrillón Munera and Alberto de Jésus Bedoya Riós, on the grounds of serious disciplinary offences, the Committee notes that the Government has stated that the Ministry for Social Protection does not have competence to initiate investigations, and this can only be performed by a judge, and that it will forward information on any remedies initiated by the workers involved. In the context of the protection of rights of trade union officers with immunity under national legislation (articles 485 and following of the Substantive Labour Code on supervision and monitoring), the Committee is of the view that the administrative authorities hold particular investigative powers, potentially culminating in sanctions, without prejudice to the right of the parties involved to initiate the relevant judicial remedies. This is not a question of declaring individual rights or settling disputes, but of carrying out an investigation into events in order to prevent any infringement of legal provisions (in this specific case, the dismissal of a trade union officer with trade union immunity in the absence of any corresponding judicial authorization) and to punish potential offenders, thereby allowing the parties to apply to the judicial authorities. In these circumstances, the Committee renews its request to the Government to carry out an investigation into this matter and to keep it informed.
19. 109. As regards the contention that it is not legally possible to establish industry unions composed of members in the employ of different types of industries, as in the case of SINALTRAINBEC and USTIBE, which have been refused registration, the Committee notes that, according to the Government, this decision is based on public health and sanitary considerations in that this trade union organization would include workers from the food and alcoholic beverages industries, and denies that the decision is motivated in any way by anti-union discrimination policy. The Committee refers once more to Convention No 87, Article 2, which embodies the right of workers to establish organizations of their own choosing and requests the Government to take the measures necessary to ensure that this principle is fully enforced.
20. 110. As regards the dismissals of workers belonging to the complainant organization SINALTRAINBEC, and the early retirement schemes adopted by the company and which were taken up by some members, the Committee takes note of the Government’s information that no legal proceedings have as yet been initiated.
21. 111. As regards the closure of the COLENVASES plant, leading to the dismissal of 42 employees and seven trade union leaders without suspending their trade union immunity and without complying with the Ministry of Labour’s resolution authorizing the closure but ordering prior compliance with clauses 14 and 51 of the collective agreement in force, the Committee takes note that the Government states that a verdict is awaited from the Administrative Dispute Tribunal, and that the Committee will be informed as soon as it is handed down.
22. 112. As regards the allegations presented by SINALTRABAVARIA concerning the pressure on workers to resign from the trade union, the Committee takes note that, according to the Government, no company has at any time brought pressure to bear on workers to relinquish trade union membership. The Committee requests the Government to take the measures necessary to carry out an investigation into the matter within the company and to keep it informed.
23. 113. As regards allegations presented by SINALTRABAVARIA concerning the denial of trade union leave, the Committee takes note that the Government states that the employer has not been found guilty of denying trade union leave.
24. 114. As regards the allegations presented by the Single Confederation of Workers of Colombia (CUT), in connection with the allegations that the ordinary discount of the union dues has still not been made by the National Federation of Coffee Growers of Colombia for workers who are not members of the Trade Union of Workers of the National Federation of Coffee Growers of Colombia and Almacenes Generales de Deposito de Café S.A. (SINTRAFEC) but who benefit from the collective employment agreement concluded, regardless of the Committe’s recommendations following earlier examination of the case [see 322nd and 324th Reports, paras. 139 and 353, respectively] requesting the Government to carry out an investigation; the dismissal of several workers on account of their trade union membership; and the use of labour cooperatives to replace workers on indefinite contracts, despite the fact that this is banned in the collective labour agreement, the Committee regrets that the Government has failed to forward its comments. The Committee requests the Government to take the necessary steps promptly to ensure that the discount for union dues for benefits under the agreement is effected for non-union members in the National Federation of Coffee Growers of Colombia, for SINFRATEC, and to carry out an investigation into the dismissal of several workers on account of their trade union membership; and the use of labour cooperatives to replace workers on indefinite contracts, despite the fact that this is banned in the collective labour agreement and to keep it informed on these matters.
25. 115. In regard to the allegations presented by the National Trade Union of Workers in the Industry for the Production, Manufacture and Processing of Food and Dairy Products (SINALTRAPROAL) regarding the refusal to register the members elected to the board of SINTRANOEL and also to register the change of status whereby the company-based union SINTRANOEL became an industry union (SINALTRAPROAL), and the refusal furthermore to register the new members of the SINTRANOEL board following the division of the company Industrias Alimenticias Noel to form two separate companies: Compania Galletas Noel S.A. and Industrias Alimenticias Noel S.A., on the grounds that, according to the Council of State, workers in the employ of one of the companies could not sit on the board of the trade union of the other company and that there were no grounds for changing the company trade union organization into an industry organization because this had occurred after the company had been divided into two separate companies, the Committee regrets that the Government has failed to forward its observations. The Committee repeats its request to the Government to take measures to ensure full application of Convention No. 87, Article 2, in keeping with the abovementioned principles.