Report in which the committee requests to be kept informed of development - Report No 356, March 2010

Case No 2565 (Colombia) - Complaint date: 15-FEB-07 - Closed

Allegations: (1) Declaration of loss of enforceability (validity) of the decisions providing for the founding document, executive board and by-laws of the National Trade Union of Workers of Omnitempus Ltda (SINTRAOMNITEMPUS) to be entered in the trade union register, and subsequent dismissal of all of its officers and 80 per cent of its members; (2) refusal of the administrative authority to enter the Trade Union of Workers of the Silvania Lighting International Enterprise (SINTRAESLI) in the register of trade unions; (3) refusal of the administrative authority to register María Gilma Barahona Roa as national controller (fiscal) of the National Unitary Trade Union of Official Workers and Public Servants of the State (SINUTSERES), and her subsequent dismissal along with other union officers and over 20 officials of the National Local Road Fund (in the process of being liquidated), in which Ms Barahona Roa was employed; and (4) refusal of the administrative authority to register the executive committee of SINUTSERES’ Soacha Cundinamarca Colombia branch

1. 600. The Committee last examined this case at its meeting in May–June 2009 [see 354th Report of the Committee on Freedom of Association, approved by the Governing Body at its 305th Session (June 2009), paras 441–484].
2. 601. The Government sent new observations in a communication dated 1 October 2009.
3. 602. 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), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 603. In its previous examination of this case at its May–June 2009 meeting, the Committee made the following recommendations [see 354th Report, para. 484]:
   • (a) As regards the declaration of loss of enforceability (validity) of the decisions entering in the trade union register, the founding document, executive board and by-laws of SINTRAOMNITEMPUS, the Committee requests the Government, in accordance with Constitutional Court Rulings Nos C-465 of 14 May and C-695 of 9 July 2008, to provisionally reinstate the dismissed officers and members of the trade union, and provisionally register SINTRAOMNITEMPUS pending a final decision by the administrative court on both the refusal to register the trade union and the subsequent dismissal of the officers and members of the trade union. The Committee requests the Government to keep it informed in this regard.
   • (b) As regards the allegations of the refusal by the administrative authority to register SINTRAESLI and the subsequent dismissal of the founding members of the trade union, the Committee requests the Government to take the necessary measures to ensure that an investigation is carried out without delay into these allegations and, should they be found to be true, to take appropriate steps to reinstate the workers dismissed for having attempted to form a trade union, with back pay and compensation constituting sufficiently dissuasive sanctions, and to proceed with the registration of the SINTRAESLI trade union. The Committee requests the Government to keep it informed in this regard, as well as on the challenges filed against the rejection of the tutela actions initiated by the trade union.
   • (c) The Committee requests the Government to send its observations on the allegations made by SINUTSERES concerning the administrative authorities’ disregard for the Committee’s recommendations on the registration of Ms Barahona Roa as controller and the subsequent dismissal of Ms Barahona Roa and other union officers, as well as other officials of the National Local Road Fund, and their refusal to register the executive committee of the Soacha Cundinamarca Colombia branch of the same trade union.

B. The Government’s reply

1. 604. In its communication dated 1 October 2009, the Government sent the following observations.
2. 605. With regard to point (a) of the recommendations, concerning the request for the dismissed officers and members of SINTRAOMNITEMPUS to be reinstated, the Government states that appropriate legal proceedings have to be initiated with the ordinary labour court.
3. 606. With regard to SINTRAOMNITEMPUS’ registration, the Government states that the trade union can initiate the relevant proceedings through the Ministry of Social Protection. As to the decision whereby the organization’s registration was declared to be unenforceable, the Government states that it will be guided by the decision of the administrative disputes body which rules on the legality of the steps taken by the Ministry of Social Protection.
4. 607. With regard to paragraph (b) of the recommendations, concerning the administrative authority’s refusal to register SINTRAESLI and the subsequent dismissal of its founding members, the Government states that it has asked the Cundinamarca Regional Directorate of the Ministry of Social Protection to look into the labour administration inquiry. As to the challenges filed against the rejection of the tutela actions initiated by SINTRAESLI, the Government suggests that the trade union inform it of the present status of the proceedings initiated through the administrative disputes body to have the decision denying its registration revoked, so that it can send its observations on the subject.
5. 608. With regard to the reference in paragraph (c) of the recommendations to the allegations made by SINUTSERES concerning the administrative authorities’ disregard of the Committee’s recommendations with respect to the refusal to register Ms Barahona Roa as controller, her subsequent dismissal along with two other union officers (Ms Olga Mercedes Suárez Galvis and Ms Yolanda Montilla), as well as other officials of the National Local Road Fund, and the refusal to register the executive committee of SINUTSERES’ Soacha Cundinamarca Colombia branch, the Government states that the International Cooperation and Relations Office has sought clarification in this regard from the Cundinamarca Regional Directorate of the Ministry of Social Protection.

C. The Committee’s conclusions

1. 609. The Committee notes the Government’s new observations.
2. 610. As regards paragraph (a) of the recommendations, concerning the declaration of loss of enforceability (validity) of the decisions providing for the founding document, executive board and by-laws of SINTRAOMNITEMPUS to be entered in the trade union register, and the subsequent dismissal of its officers and members, the Committee had requested the Government, as a provisional measure, to reinstate the dismissed officers and members of the trade union and to register SINTRAOMNITEMPUS, pending a final decision by the administrative disputes court. In its response, the Government states: (1) that, for the workers and executive committee members to be reinstated, appropriate legal proceedings have to be initiated with the ordinary labour court; (2) that, for an entry to be made in the trade union register, relevant proceedings must be initiated with the Ministry of Social Protection; and (3) that, in the case of the proceedings initiated through the administrative disputes body to have the decision invalidating the trade union’s registration revoked and to re-establish its right to register, the Government will abide by the decision of the disputes body, which determines the legality of steps taken by the Ministry of Social Protection. The Committee notes the Government’s statement and requests the Government to keep it informed of the final outcome of the trade union’s request currently lodged with the administrative disputes body to have the decision concerning its registration revoked, as well as of any action taken by the trade union with a view to its registration. The Committee draws the complainant organization’s attention to the Government’s statement that, to have its workers and executive committee members reinstated, appropriate legal proceedings have to be initiated with the ordinary labour court. The Committee invites the complainant to act accordingly if it so wishes.
3. 611. With regard to paragraph (b) of the recommendations, concerning the alleged refusal of the administrative authority to register SINTRAESLI and the subsequent dismissal of its founding members, the Committee notes the Government’s statement that it has asked the Cundinamarca Regional Directorate of the Ministry of Social Protection to look into the labour administration inquiry concerning the matter. The Committee expects that the inquiry into the refusal of the administrative authority to register SINTRAESLI, and into the subsequent dismissal of its founding members, will reach its conclusions without delay and that, should the allegations be found to be true, the dismissed workers will be duly reinstated and the wages owing to them duly paid. The Committee calls on the Government to keep it informed of developments in this respect. As regards the challenges filed against the rejection of the tutela actions initiated by the trade union with respect to its registration, the Committee requests the union to supply additional information on the status of those challenges so as to enable the Government to provide its observations in this regard, and to indicate whether it has submitted a new request to be registered.
4. 612. With regard to paragraph (c) of the recommendations, concerning SINUTSERES’ allegations that Ms Barahona Roa was denied registration as the union’s controller, that she was subsequently dismissed along with two other union officers (Ms Olga Mercedes Suárez Galvis and Ms Yolanda Montilla) and other officials of the National Local Road Fund, and that the executive committee of the union’s Soacha Cundinamarca Colombia branch was denied registration, the Committee notes the Government’s statement that it has asked the Cundinamarca Regional Directorate of the Ministry of Social Protection to look into the matter. The Committee regrets that, despite the time that has elapsed since its previous examination of the case in May–June 2009, the Government has not supplied any specific information on the allegations.
5. 613. Given this situation, the Committee wishes to recall that in its previous examination of the case it took note of the Constitutional Court Rulings Nos C-465 of 14 May and C-695 of 9 July 2008. Bearing in mind that these are general and mandatory rulings, to the effect that the registration of a change in the composition of an executive committee with the Ministry of Social Protection is strictly a matter of public information and does not entitle the Ministry to conduct a preliminary examination of its composition, the Committee calls on the Government to take the necessary steps for Ms Barahona Roa to be registered as the trade union’s controller and for its Sochoa branch’s executive committee likewise to be entered in the register. The Committee also calls on the Government to conduct an investigation without delay into the subsequent dismissal of Ms Barahona Roa along with two other union officers (Ms Olga Mercedes Suárez Galvis and Ms Yolanda Montilla) and other officials of the National Local Road Fund and to keep it informed of the outcome, together with the reasons adduced thereto.

The Committee's recommendations

1. 614. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the declaration of loss of enforceability (validity) of the decisions providing for the founding document, executive board and by-laws of SINTRAOMNITEMPUS to be entered in the trade union register, and the subsequent dismissal of its officers and members, the Committee requests the Government to keep it informed of the outcome of the trade union’s request currently lodged with the administrative disputes body to have the decision concerning its registration revoked, as well as of any action taken by the trade union with a view to its registration. The Committee draws the complainant organization’s attention to the Government’s statement that, to have its workers and executive committee members reinstated, it must initiate legal proceedings with the ordinary labour court and invites it to act accordingly if it so wishes.
   • (b) Concerning the alleged refusal of the administrative authority to register SINTRAESLI and the subsequent dismissal of its founding members, the Committee expects that the inquiry into the matter will reach its conclusions in the near future and that, should the allegations be found to be true, the dismissed workers will be duly reinstated and the wages owing to them duly paid. The Committee calls on the Government to keep it informed of developments in this respect. The Committee requests the union to supply additional information on the status of the challenges filed against the rejection of the tutela actions initiated by the trade union with respect to its registration so as to enable the Government to provide its observations in this regard, and to indicate whether it has submitted a new request to be registered.
   • (c) With regard to SINUTSERES’ allegations that Ms Barahona Roa was denied registration as the union’s controller, that she was subsequently dismissed along with two other union officers (Ms Olga Mercedes Suárez Galvis and Ms Yolanda Montilla) and other officials of the National Local Road Fund, and that the executive committee of the union’s Soacha Cundinamarca Colombia branch was denied registration, the Committee calls on the Government, in keeping with the recent Constitutional Court Rulings Nos C-465 of 14 May and C-695 of 9 July 2008 (to the effect that the registration of a change in the composition of an executive committee with the Ministry of Social Protection is strictly a matter of public information and does not entitle the Ministry to conduct a preliminary examination of its composition), to have Ms Barahona Roa registered as the trade union’s controller and its Soacha branch’s executive committee likewise entered in the register, to take steps to have an investigation conducted without delay into the subsequent dismissal of Ms Barahona Roa along with two other union officers (Ms Olga Mercedes Suárez Galvis and Ms Yolanda Montilla) and other officials of the National Local Road Fund, and to keep it informed of the outcome, together with the reasons adduced thereto.