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

Case No 2239 (Colombia) - Complaint date: 21-NOV-02 - Closed

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

1. 134. The Committee last examined this case, relating to the collective dismissal of workers and their replacement by labour cooperatives whose workers do not enjoy the right to trade union membership, anti-union dismissal of workers and the signing of a collective accord with negative consequences for trade union members at its March 2005 meeting [see 336th Report, paras. 327-359]. On that occasion, the Committee made the following recommendations:
   • (a) Regarding the dismissal of more than 100 workers belonging to SINALTRADIHITEXCO from Tejicondor, and the subsequent contracting of workers through associated labour cooperatives, who, according to the complainants, do not enjoy the rights to freedom of association and collective bargaining, the Committee deeply regrets this situation and considers that such workers should enjoy the right to join or form trade unions in order to defend their interests. It requests the Government to take the appropriate steps to guarantee full respect for freedom of association. The Committee reminds the Government that the technical assistance of the Office is at its disposal.
   • (b) With regard to the allegations made by SINALTRADIHITEXCO concerning the dismissal of Mr. Carlos Mario Cadavid and the suspension of union official Mr. José Angel López, bearing in mind the discrepancies between the allegations made by the complainant and the information supplied by the Government, the Committee urges the Government to take the appropriate measures without delay to ensure that the appeals lodged are resolved and to keep it informed of the results of the appeals and of any other legal action which may be brought in this regard.
   • (c) With regard to the serious allegations presented by the WFTU concerning the forced signing of a collective accord (pacto colectivo) with member and non-member workers at GM Colomotores, which implied the automatic resignation of a high percentage of workers from the National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-metals and Related Industries (SINTRAIME), the Committee requests the Government to take the necessary measures to ensure that workers are not pressured into accepting against their will a collective accord which implies resignation from a trade union and to keep it informed of the result of the investigation launched by the regional directorate of Cundinamarca in this regard.
   • (d) With regard to the allegations concerning the murder of Mr. Luis Alberto Toro Colorado, a member of the national executive committee of SINALTRADIHITEXCO, the Committee requests the Government to keep it informed of the result of the investigation launched.
   • (e) With regard to the new allegations made by SINALTRADIHITEXCO concerning the unilateral annulment by Tejicondor S.A. which merged with Fabricato S.A. of a collective agreement signed by Fabricato S.A., the refusal to grant trade union leave or to convene the Arbitration Tribunal requested by the complainant in June 2003, on which administrative resolutions were issued which left the parties free to have recourse to the ordinary courts, the Committee recalls that agreements should be binding on the parties and that, in accordance with Paragraph 10 of the Workers’ Representatives Recommendation, 1971 (No. 143), workers’ representatives should be afforded the necessary time for carrying out their representation functions and that, while workers’ representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld. The Committee urges the Government to ensure respect for these principles and requests the Government to keep it informed of any legal action taken in this respect.
2. 135. In its communication received in March and May 2005, the National Union of Workers in the Weaving, Textiles and Clothing Industry (SINALTRADIHITEXCO) supplies additional information to that considered during previous examination of the case, concerning the merger between Fabricato and Tejicondor and the unilateral decision adopted by the company to apply to all workers a collective agreement signed at Fabricato by the SINDELHATO trade union prior to the merger, despite the fact that according to the complainant, the collective agreement signed in Tejicondor with SINALTRADIHITEXCO had been in place longer and afforded greater benefits to workers. The trade union adds that in March 2003, Fabricato Tejicondor increased Tejicondor workers’ wages on the condition that they resigned from SINALTRADIHITEXCO, being subsequently obliged to join SINDELHATO, the primary trade union at Fabricato, although this union attracted the membership of only half the combined workforce of the two merged companies. The complainant states that SINDELHATO has now presented a new list of demands and that the company has threatened not to renew the contracts of those workers who are members of SINALTRADIHITEXCO. For this reason, the remaining workers resigned from SINALTRADIHITEXCO and joined SINDELHATO.
3. 136. In its communications dated 24 February (received on 17 March), 13 June and 12 August 2005, the Government states that with regard to the dismissal of more than 100 workers belonging to SINALTRADIHITEXCO from Tejicondor, and the subsequent contracting of workers through associated labour cooperatives, who, according to the allegations, do not enjoy the rights to freedom of association and collective bargaining, because of the nature of cooperatives, in which the dependent relationship characteristic of a contract of employment and essential for the establishment of a trade union does not exist, workers who belong to a cooperative may not establish or join a trade union.
4. 137. With regard to allegations concerning the unilateral annulment by Tejicondor of the signed collective agreement following the merger of this company with Fabricato, the Government states that the convention signed between Tejicondor and SINALTRADIHITEXCO was valid until 31 July 2003, and that it was observed until that date. From then on, the agreement signed by Fabricato and SINDELHATO became applicable to all workers from the merged Fabricato-Tejicondor company. This agreement applied between 5 April 2002 and 4 April 2005. The Government adds that the majority trade union is SINDELHATO, representing 56 per cent of company workers, whilst SINALTRADIHITEXCO represents only 17 per cent.
5. 138. With regard to the request by SINALTRADIHITEXCO to convene an arbitration tribunal, the Government states that this request was refused on the grounds of failure to comply with article 444 of the Substantive Labour Code with respect to the time limit for the direct settlement stage between the parties.
6. 139. With regard to the allegations made by SINALTRADIHITEXCO concerning the dismissal of Mr. Carlos Mario Cadavid and the suspension of the union official, Mr. José Angel López, the Government states that the appeals lodged by the complainant and the company, against the resolution issued by the Territorial Directorate of Antioquia of the Ministry of Social Protection ruling that it was not competent to examine the dismissal of Mr. Cadavid and the suspension of Mr. López, were quashed through resolutions Nos. 2354, dated 17 September 2004, and 3461, dated 22 December 2004. The Government adds that the parties have the option to bring legal proceedings before the labour courts.
7. 140. With regard to the serious allegations presented by the WFTU concerning the forced signing of a collective accord (pacto colectivo) with member and non-member workers at GM Colomotores, which implied the automatic resignation of a high percentage of workers from the National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-metals and Related Industries (SINTRAIME), the Government states that current legislation allows companies to enter into collective accords (pactos colectivos) unless a trade union exists representing more than one-third of the workers at a company, in which case the company in question is not permitted to enter into collective accords. The Government underlines the fact that in this case, SINTRAIME does not represent more than one-third of the workers.
8. 141. The Government adds that in 2003, those workers who were not members of a trade union lodged a list of demands, since they were not covered by the collective agreement concluded with the company (the Government encloses 600 declarations from workers who entered into the collective accord, stating that they did so of their own free will). The workers entering into the collective accord were not members of a trade union. By virtue of this accord, a committee was formed comprising two workers who had entered into the accord and two company representatives tasked with approving or rejecting membership of workers, union members or otherwise. With regard to the allegations concerning automatic resignation from the trade union by those members who had entered into the collective accord, the Government points out that this procedure is not possible, either under current legislation or in practice.
9. 142. The Government states that the trade union brought legal proceedings before the labour courts, requesting the annulment of the collective accord, which are currently being heard by the Third Labour Court of the Bogotá Circuit. Furthermore, the Government states that the Regional Directorate of Cundinamarca conducted an administrative labour investigation into possible irregularities within GM Colomotores and resolved not to take measures through resolution No. 4570 dated 23 November 2004. Appeals were launched against this resolution. The first was quashed and the second is being heard.
10. 143. With regard to the allegations concerning the murder of Mr. Luis Alberto Toro Colorado, a member of the national executive committee of SINALTRADIHITEXCO, the Government states that the Attorney-General’s office began an investigation assigned to the public prosecutor of the Bello district and that, according to the attestation dating from March 2005, the perpetrators of the act have yet to be identified.
11. 144. Regarding the dismissal of more than 100 workers belonging to SINALTRADIHITEXCO from Tejicondor and the subsequent contracting of workers through associated labour cooperatives who do not enjoy the rights to freedom of association and collective bargaining, the Committee notes that once again, the Government states that because of the nature of cooperatives, in which the dependent relationship characteristic of a contract of employment and essential for the establishment of a trade union does not exist, workers who belong to a cooperative may not establish or join a trade union. The Committee once again reiterates in general terms that under Article 2 of Convention No. 87, ratified by Colombia, workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing. At the same time, recalling the Promotion of Cooperatives Recommendation, 2002 (No. 193), which calls on governments to ensure that cooperatives are not set up or used for non-compliance with labour law or used to establish disguised employment relationships, the Committee recalls that “although … cooperatives represent one particular way of organizing production methods, the Committee cannot cease consideration of the special situation of workers with regard to cooperatives, in particular as concerns the protection of their labour interests … and considers that such workers should enjoy the right to join or form trade unions in order to defend those interests”. The Committee requests the Government to take all of these principles into account and reminds the Government that the technical assistance of the Office is at its disposal.
12. 145. With regard to the allegations concerning the unilateral annulment by Tejicondor of the signed collective agreement following the merger with Fabricato, the Committee takes note of the information provided by the Government according to which the agreement signed by workers from Tejicondor was applied to these workers until its expiry date, after which the collective agreement signed between Fabricato and SINDELHATO, currently covering 56 per cent of workers in the company, was extended to them. With regard to the alleged pressure exerted on SINALTRADIHITEXCO members to resign from the trade union and the threat not to renew the contracts of those workers who are members of SINALTRADIHITEXCO, the Committee notes that the Government does not supply any observations relating to this question. The Committee requests the Government to take steps to conduct an investigation in order to determine the true facts, and to guarantee to those workers who are members of SINALTRADIHITEXCO their trade union rights without prejudicial consequences for their employment contracts.
13. 146. With regard to the allegations made by SINALTRADIHITEXCO concerning the dismissal of Mr. Carlos Mario Cadavid and the suspension of the union official Mr José Angel López, the Committee takes note of the fact that the administrative appeals being heard were quashed and that the parties have the option to bring legal proceedings before the administrative dispute courts.
14. 147. With regard to the allegations presented by the WFTU concerning the forced signing of a collective accord (pacto colectivo) with member and non-member workers at GM Colomotores, which implied the automatic resignation of a high percentage of National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-metals and Related Industries (SINTRAIME), the Committee takes note of the information provided by the Government according to which no forced signing took place (the Committee takes note of the statements made by workers to the effect that signing of the collective accord was done on a voluntary basis); that SINTRAIME does not cover more than one-third of workers and that as a result, the company can enter into a collective accord with non-trade union members and that the automatic resignation alleged by the complainant is not possible in Colombia, either under current legislation or in practice. At the same time, the Committee notes that the appeal lodged against the resolution of the Territorial Directorate of Cundinamarca concerning its lack of competence regarding the suspected irregularities at GM Colomotores is still being considered. Nevertheless, the Committee recalls “that the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98, and that the collective accords should not be used to undermine the position of the trade unions” [see 324th Report, Case No. 1973, 325th Report, Case No. 2068 and 332nd Report, Case No. 2046 (Colombia)]. The Committee requests the Government to keep it informed of the final outcome of the appeal that has been lodged.
15. 148. With regard to the allegations concerning the murder of Mr. Luis Alberto Toro Colorado, a member of the national executive committee of SINALTRADIHITEXCO, the Committee takes note of the ongoing investigation by the Attorney-General’s office assigned to the public prosecutor of the Bello district and requests the Government to continue doing all within its power to establish the identity of the murderers so that they may be duly punished, and to keep it informed of any developments related to the case.