Report in which the committee requests to be kept informed of development - Report No 355, November 2009

Case No 2600 (Colombia) - Complaint date: 06-SEP-07 - Closed

Allegations: The National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-Metals and Related Industries (SINTRAIME), the Single Confederation of Workers of Colombia (CUT) and the World Federation of Trade Unions (WFTU) allege the dismissal, on 28 July 2007, of two trade union leaders of SINTRAIME, by a metallurgical enterprise, and the use by that enterprise, to carry out regular production activities, of temporary workers who neither enjoy the right to unionize nor are covered by the collective agreement. It is also alleged that: pressure was put upon the workers of another enterprise which resulted in the non-renewal of the contracts of 18 workers; a wage increase provided for under the collective agreement was withheld in the case of those workers who had joined the trade union after 1 June 2007; two trade union leaders were dismissed and the enterprise used temporary workers to carry out regular production activities

1. 465. The Committee last examined this case at its November 2008 meeting, and on that occasion presented a report to the Governing Body [see 351st Report, approved by the Governing Body at its 303rd Session].
2. 466. The Government sent its observations in a communication dated 16 March 2009.
3. 467. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 468. In its previous examination of the case in November 2008, the Committee made the following recommendations [see 351st Report, para. 574]:
   • (a) As regards the allegations relating to the dismissal, on 28 July 2007, of two SINTRAIME trade union leaders, Mr Efrey Garay Escobar and Mr Hernando Huertas Hernández, the Committee requests the Government to keep it informed of the outcome of the pending judicial proceedings.
   • (b) As regards the allegations relating to the use of temporary workers, provided through a labour contractor to carry on the normal production activities of the enterprise, who do not enjoy the right of association and are not covered by the existing collective agreement, the Committee requests the Government to take the necessary steps to guarantee the right to associate and to bargain collectively of the temporary workers and to keep it informed as to the final outcome of the ongoing administrative inquiry.
   • (c) As regards the allegations relating to the enterprise CMA regarding pressure put on fixed-term workers belonging to SINTRAIME which resulted in the non-renewal of the contracts of 18 workers, the withholding of a wage increase provided for under the collective agreement in the case of workers who had joined the trade union after 1 June 2007, the dismissal of the trade union leaders Mr Pedro Jamel Ávila and Mr Eduardo Cuéllar for demanding the same increase, and the use of temporary workers provided through a labour contractor to carry on the regular production activities of the enterprise, the Committee urges the Government to send its observations in this regard without delay.

B. The Government’s reply

1. 469. In its communication of 16 March 2009, the Government sent the following observations.
2. 470. As regards recommendation (a), regarding the dismissal of Mr Luis Hernando Huertas, the Government states that the Fifth Labour Court of the Bogotá Circuit has heard testimony from witnesses.
3. 471. As regards the dismissal of Mr Efrey Garay Escobar, the Twelfth Labour Court of the Bogotá Circuit gave a ruling vindicating the enterprise Munal. According to the ruling, Mr Garay did not have the status of union official, and the allegation that rights pertaining to freedom of association were violated is therefore without foundation.
4. 472. As regards recommendation (b), concerning the use of temporary workers who are supplied through a labour contractor to carry on the normal production activities of the enterprise and do not enjoy the right of association, the Government indicates that under the terms of article 70 and following sections of Act No. 50 of 1990, the use of such temporary employment agencies is allowed. It is these companies that directly contract with the workers concerned; thus, there is no relationship between the worker and the main contractor (in this case the Munal enterprise), and the workers can exercise their right to freedom of association in relation to their employer (the temporary recruitment agency). Lastly, the Government states that, in view of the trade union’s decision to abandon its legal action, the inquiry launched by the Cundinamarca Territorial Directorate has been shelved.
5. 473. With regard to recommendation (c), concerning allegations of pressure put on fixed-term workers belonging to SINTRAIME, which resulted in the non-renewal of the contracts of 18 workers, the withholding of a wage increase provided for under a collective agreement, and the use of temporary workers, the Government states that the Caldas Territorial Directorate launched an administrative inquiry resulting in Resolution No. 6 of 2008, which fined the enterprise Compañía Manufacturera ANDINA SA. An appeal was lodged against that ruling, and the Territorial Directorate of Caldas modified the fine. The Government provides a copy of the decisions of the Directorate.
6. 474. The company in question was also fined for refusing to engage in negotiations, and the Government supplies a copy of the decision in question.
7. 475. As regards the judicial proceedings initiated by Messrs Pedro Jamel Ávila and Eduardo Cuéllar, the Government requests the trade unions concerned to provide more information with a view to ascertaining the current status of the proceedings, given that the Ministry of Social Protection is not competent to decide whether or not dismissals of workers are justified, this being a matter for the judicial authority.

C. The Committee’s conclusions

1. 476. With regard to recommendation (a) concerning the dismissal, on 28 July 2007, of two SINTRAIME trade union leaders, Mr Efrey Garay Escobar and Mr Hernando Huertas Hernández, the Committee takes note of the Government’s information according to which in the case of Mr Efrey Garay Escobar, the 12th Labour Court of the Circuit vindicated the company Munal on the grounds that Mr Efrey Garay Escobar was not a trade union official. As regards the dismissal of Mr Hernando Huertas Hernández, the Committee notes that, according to the Government, the proceedings are still at the stage of receiving evidence, and requests the Government to keep it informed in this regard.
2. 477. As regards recommendation (b) concerning the use of temporary workers who do not enjoy freedom of association and are not covered by the collective agreement in force, the Committee notes the Government’s information according to which: under the terms of article 70 and following sections of Act No. 50 of 1990, hiring workers through temporary employment agencies is legal; it is these agencies that directly hire the workers, who have no relationship with the main contractor company; and the workers can assert their rights of freedom of association with regard to their employer (the agency). The Committee also notes that according to the Government, the trade union organization withdrew from the administrative inquiry initiated by the Cundinamarca Territorial Directorate. In this respect, the Committee requests the Government to ensure compliance with the principles in Article 2 of Convention No. 87, according to which all workers without distinction whatsoever shall have the right to establish and join organizations of their choosing, including SINTRAIME, whether they are employed on a permanent basis, for a fixed-term or temporary workers, and should have the right to negotiate collectively.
3. 478. As regards recommendation (c) concerning the allegations of pressure put on fixed-term workers belonging to SINTRAIME at the enterprise Compañía Manufacturera ANDINA SA, which resulted in the non-renewal of the contracts of 18 workers, the withholding of a wage increase provided for under a collective agreement from workers who had joined after 1 June 2007, the dismissal of trade union officials Pedro Jamel Ávila and Eduardo Cuéllar for demanding the same increase, and the use of temporary agency-supplied workers to carry on the normal production activities of the company, the Committee notes the Government’s information that the Caldas Territorial Directorate launched an administrative inquiry that led to Resolution No. 6 of 2008, fining the company the sum of 30 times the monthly minimum wage for violation of labour and social rights, plus an additional sum of 40 times the legal minimum wage, the fines being subsequently reduced by the Territorial Director to a single fine of 60 times the minimum wage. The Committee also notes that the company was fined for refusal to negotiate, and the Government supplies a copy of this ruling.
4. 479. As regards the allegations concerning the judicial proceedings initiated in response to the dismissal of trade union leaders Pedro Jamel Ávila and Eduardo Cuéllar for demanding the same pay increase, the Committee notes that the Government has requested more information from the trade union organizations in order to be able ascertain the current status of these proceedings, given that the Ministry of Social Protection is not competent to decide whether or not the dismissals were justified, this being a matter for the courts. The Committee requests the complainant organizations to provide the information sought by the Government, and requests the Government to keep it informed of the outcome of these proceedings.

The Committee's recommendations

1. 480. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of the final outcome of the judicial proceedings still pending regarding the dismissal, on 28 July 2007, of Mr Hernando Huertas Hernández.
   • (b) The Committee requests the complainant organizations to provide the Government with the additional information sought in relation to the judicial proceedings regarding the dismissal of Mr Pedro Jamel Ávila and Mr Eduardo Cuéllar, for demanding that the pay increase be applied to them, to enable the Government to carry out the necessary investigations, and requests the Government to keep it informed of the outcome of these proceedings.