Report in which the committee requests to be kept informed of development - Report No 381, March 2017

Case No 3061 (Colombia) - Complaint date: 02-DEC-13 - Follow-up

Allegations: The complainant alleges, first, that a number of companies do not recognize their workers’ right to join and be represented by SINALTRAINAL during collective bargaining and, secondly, that the leaders and members of that organization are being targeted by numerous acts of retaliation, including the filing of criminal complaints and anti-union dismissals

1. 255. The complaint is contained in communications of 2 December 2013, 22 June 2014 and 18 June 2015, presented by the National Union of Agri-Food Industry Workers (SINALTRAINAL).
2. 256. The Government sent its observations in communications of 12 September 2014, 18 December 2014, 26 October 2015 and 16 May 2016.
3. 257. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 258. In a communication of 2 December 2013, the complainant denounces, first, several violations of trade union and collective bargaining rights by the company Transportadora Colombia SA TCC (hereinafter “the transport company”). In this connection, the complainant contends, in particular, that: (i) on 6 March 2013 SINALTRAINAL submitted a list of demands to the transport company; (ii) in accordance with current legislation, the union, on being faced with the transport company’s refusal to enter into talks, lodged a complaint with the Ministry of Labour asking it to order the company to enter into talks; and (iii) to date, the Ministry has not taken a stance and there has been no negotiation regarding the list of demands.
2. 259. The trade union organization also alleges that: (i) the transport company dismissed Mr Rafael Rozo on 21 March 2013 in an attempt to prevent other workers from joining the union – the case is still pending before the courts; (ii) the transport company breached labour law by refusing to deduct union dues payable to SINALTRAINAL; (iii) in order to exert pressure on SINALTRAINAL members, the transport company refused to discontinue the deduction of union dues payable to the National Union of Freight and Passenger Transport Workers (SINTRACAP), despite the fact that resignations from that trade union had been duly notified; (iv) Mr Alexander Escalante Ortiz’s participation in the hearing held at the Ministry of Labour on 6 June 2013 concerning the transport company’s refusal to bargain collectively was deemed by the company to be absence from work; (v) the company removed SINALTRAINAL’s placards concerning the collective dispute; (vi) on 14 January 2014, the transport company submitted a request for labour arbitration (ordinary procedure) seeking to have SINALTRAINAL’s by-laws, legal personality and membership declared unlawful; and (vii) on 25 April 2014, the Second Civil Court in the Facatativá Circuit recognized the legality of SINALTRAINAL’s by-laws, but declared the transport company workers’ membership of the trade union to be unlawful. A ruling on this case is awaited from a court of second instance.
3. 260. The complainant further denounces several violations of trade union and collective bargaining rights committed by the Cauca Valley Family Compensation Fund, COMFAMILIAR ANDI (COMFANDI, hereinafter “the Fund”). In this connection, the complainant specifically holds that: (i) on 22 October 2012, SINALTRAINAL presented the Fund with a list of demands which the Fund rejected on 29 October 2013; (ii) in accordance with current legislation, the union, on being faced with the Fund’s refusal to enter into talks, lodged a complaint with the Ministry of Labour asking the latter to order the Fund to enter into talks and to fine it; (iii) by decisions of 10 September 2013 and 24 October 2013, the Ministry of Labour refused to order the Fund to enter into negotiations or to impose a fine on it. The Ministry argued that, since the Fund had initiated judicial proceedings, it was incumbent upon the courts to rule on the case; (iv) the Fund submitted a request for labour arbitration (ordinary procedure) seeking to have SINALTRAINAL’s legal personality rescinded on the grounds that it had admitted the Fund’s employees as members and that that membership had been declared unlawful; and (v) the Fund refused to deduct union dues payable to SINALTRAINAL, for which it was punished by a Ministry of Labour decision of 14 June 2011.
4. 261. The organization also alleges that, by way of retaliation and in order to dissuade any more of its employees from joining SINALTRAINAL, the Fund dismissed the following workers: (i) Mr Gustavo Serna Labrada was dismissed on 26 June 2009 after 37 years’ service – this being the same date on which the employer was notified that the worker had joined the trade union; (ii) Mr Walter Antonio Ramírez Tobar, a member of the SINALTRAINAL Complaints Committee – a fact of which the company was notified on 9 December 2009 – was dismissed on 14 December 2009 after spurning an offer of financial reward for the signature of a document terminating his employment contract by mutual agreement. Since he held trade union immunity, his reinstatement was ordered by courts of first and second instance (the case was heard by the Cali High Court on 29 February 2012), but the decision was not implemented; (iii) Mr Oscar Mezu Lasso was dismissed on 14 December 2009, five days after the company had been notified that he had joined SINALTRAINAL and three days after he had refused to resign (the worker’s lawsuit seeking judicial protection was unsuccessful); (iv) Mr Wilson Fernández Victoria was forced to resign in exchange for compensation on 11 December 2009, two days after the company had been notified that he had joined SINALTRAINAL; (v) Ms Claudia Perdomo, a member of the SINALTRAINAL Complaints Committee, was dismissed on 18 January 2011 although she held trade union immunity – in view of the uncertain outcome of judicial proceedings, the worker accepted the company’s out-of-court financial settlement; (vi) Ms Martha Guaza was dismissed on 18 May 2010, three weeks after the company had been notified that she was a member of the SINALTRAINAL Complaints Committee – the Fund succeeded in persuading the worker to drop her lawsuit in exchange for a purported settlement agreement; (vii) Mr Javier Hidalgo Concha was dismissed on 31 October 2012, less than one month after he had been appointed a member of the committee negotiating the list of demands presented by SINALTRAINAL – the courts of first and second instance ordered the worker’s reinstatement; (viii) Mr Luis Eduardo Castillo was dismissed on 31 October 2012, nine days after the company had been notified that he was a member of the committee negotiating the trade union’s list of demands – the court of second instance, the Cali Criminal Court, ordered the worker’s reinstatement and called on the company to desist from anti-union dismissals; and (ix) Mr Jesús Henry Calvache was dismissed on 18 January 2012, two months after he had joined SINALTRAINAL – a ruling is awaited from a court of first instance.
5. 262. In two communications of 22 June 2014, the complainant denounces the use of the judiciary by various companies as a strategy for outlawing SINALTRAINAL and thereby obstructing the exercise of freedom of association. After again referring to the lawsuits brought by the two companies mentioned in its first communication of 2 December 2013, the complainant briefly states that: (i) Industria Nacional de Gaseosas SA, a bottling company (hereinafter, the beverage company) submitted a request for labour arbitration (ordinary procedure) seeking to have the Villavicencio branch of SINALTRAINAL declared illegal. This case is on the docket of the 32nd Court of the Bogotá DC circuit; and (ii) the companies Dromayor del Llano SA and Dromayor Bogotá SAS (hereinafter, the medical distribution companies) asked the courts to revoke the union registration of the Villavicencio branch of SINALTRAINAL. This request was rejected by the courts of first and second instance in decisions of 27 September and 22 November 2012.
6. 263. The complainant further alleges that: (i) the company FL Colombia SA (hereinafter, the first service provider) which provides services for multinational companies in the agri-food sector, also submitted a request for labour arbitration (ordinary procedure) in which it sought to have SINALTRAINAL’s by-laws and the company workers’ membership of the trade union declared unlawful; (ii) this application to the courts was made after the company had rejected the list of demands which the trade union had submitted to it on 27 May 2013 and after a complaint had been lodged by the trade union with the labour administration on 11 June 2013 asking the latter to order the company to negotiate; and (iii) the company’s anti-union campaign culminated in workers cancelling their trade union membership, as a result of which the company withdrew its complaint of 12 February 2014 and the Ministry of Labour did not issue a decision on the trade union’s complaint.
7. 264. In addition, the complainant maintains that, on 27 March 2012, SINALTRAINAL submitted a list of demands to the company Proservis Temporales SAS (hereinafter “the temporary service provider”) which provides bottling plants with services and that: (i) having met with a negative reply from the company, on 23 April 2012 the trade union lodged a complaint with the labour administration in which it asked the latter to order the company to negotiate; (ii) the Ministry of Labour did not protect the workers’ rights and the company based its refusal on the assertion that its workers could not join SINALTRAINAL; (iii) thereafter all the company’s employees working in Bucaramanga and Barrancabermeja who were members of SINALTRAINAL were dismissed; and (iv) on 13 September 2012, the Ministry of Labour notified SINALTRAINAL that the company had lodged a complaint against the trade union accusing it of breaching the provisions of labour law.
8. 265. The complainant also contends that the company Eficacia SA (hereinafter, the second service provider) which provides services for bottling plants: (i) applied to the courts to have SINALTRAINAL’s by-laws and the company workers’ membership of the trade union declared unlawful; (ii) the lawsuit came after the trade union had submitted a list of demands to the company; (iii) the company refused to discuss the list; and (iv) on 4 June 2014, it dismissed Ms Nora Ayde Velásquez Guzmán, a worker belonging to the trade union, who had received serious threats of physical assault prior to her dismissal.
9. 266. Furthermore, the complainant alleges that the company Amcor Rigid Plastics de Colombia SA (hereinafter, the plastics company) which operates a bottling plant in Medellín, applied to the courts to have SINALTRAINAL’s by-laws and the company workers’ membership of the trade union declared unlawful after the trade union had presented the company with a list of demands which it refused to discuss.
10. 267. The complainant also contends that the company Sodexo SA (hereinafter, the third service provider) a company providing services for bottling plants, has refused to negotiate with SINALTRAINAL since 2010. It was not until January 2014 that an arbitration tribunal issued an arbitral award against which an appeal has been filed with the Supreme Court. The complainant adds that, throughout that period of time, the company promoted its own collective agreement signed with non-union workers and managed to ensure that the tribunal’s arbitral award was based on the few rights contained in that agreement and not on SINALTRAINAL’s list of demands. It also states that the company dismissed, in a discriminatory manner, the workers Luis Manuel Martínez Sotelo, Blanca Elena Bustos, Mariola Molina González, Agripina Pérez Pérez, Mario Augusto Pinto Jiménez and Carmen Cotera Monerroza and that the courts refused to order their reinstatement in decisions of 6 August and 22 September 2010.
11. 268. Moreover the complainant holds that: (i) the company Distraves SAS (hereinafter “the poultry company”) brought criminal proceedings against SINALTRAINAL and a number of workers for the allegedly fraudulent registration of workers as members of the trade union; (ii) the complaint was filed after the company had refused to discuss the list of demands submitted by the trade union on 31 July 2013, which was also the date on which a number of company workers joined the trade union; (iii) as from that date, the company unleashed a systematic campaign of harassment directed against trade union members; (iv) as part of this campaign, Leonardo Plata Mendoza, Estewinson Pico Calderón, Alberto Sánchez Castro and Jiovanny Sánchez Buitrago were dismissed without a valid reason on 7 August 2013; and (v) on 12 August 2013, Norberto Rueda Barragán, a member of the committee negotiating the list of demands, was also dismissed.
12. 269. The complainant alleges that the administrative authorities to which SINALTRAINAL had turned in order to denounce the aforementioned acts of anti-union discrimination endorsed those practices, but without requiring the union to pay the penalties or compensation which some judicial authorities had ordered in decisions devoid of any legal validity and which completely failed to protect freedom of association. The complainant adds that, although Colombian legislation makes provision for some remedies for breaches of freedom of association, the process of obtaining the remedies is expensive, slow and ineffective and, what is more, the authorities implement these remedies only in part in an opaque manner.
13. 270. The complainant also adds that bringing criminal charges against SINALTRAINAL leaders constitutes an anti-union strategy which has been deployed for many years by bottling plants in Colombia and which is still continuing. In this connection, the complainant makes particular mention of: (i) criminal charges filed by a bottling plant in Medellín against the SINALTRAINAL leaders Helconides Londoño Restrepo, Duban Antinio Mejia, Jhon Jairo Tamayo Nieto, Juan David Florez Contreras, Carlos Alsonso Yepes Gil, Rafael Aderlis Castro and Jaime Alonso Cañas Montoya for allegedly illegal acts committed at a rally on 21 August 2013, and another complaint lodged with the Ministry of Labour alleging abuse of the right of freedom of association on grounds of alleged damage to the company’s business premises on that date; (ii) criminal charges against the trade union for the publication, in September 2013, of a text satirizing the multinational’s acts of anti union harassment; (iii) the criminal charges brought against the SINALTRAINAL leaders Luis Fernando Miranda Velázquez, Fabian Adolfo Ortiz Burbano, Alirio Nuñez García, Lizarso Serrano Hernández, Orlando Enrique Ciacedo Orozco, Miguel Enrique Pua Orellano, Paulo Cesar Valencia Guerrero, Cristóbal Ramón Gómez López, Enrique José Arévalo De Oro, Luis Carlos Cerpa Jinete, Carlos Alberto Prado Trujillo and Limberto Antonio Carranza Vanegas; and (iv) the pressure and fear generated among workers belonging to SINALTRAINAL by the latter wave of criminal charges, which obliged the trade union to accept conciliation at a hearing on 25 July 2013 in order to put an end to the proceedings.
14. 271. The complainant then briefly refers to the criminal charges brought by the company Drummond Limited against workers belonging to SINALTRAINAL for damage allegedly caused by a protest held on 18 and 19 June 2013 at the entrance to a mine in the town of El Paso in the Department of César.
15. 272. By a communication of 18 March 2015, the complainant submitted further allegations regarding the abovementioned poultry company. The complainant specifically states that: (i) on 17 February 2015, a group of SINALTRAINAL members went to the company’s premises to ask for a negotiated settlement of the list of demands which the trade union had submitted to the company; (ii) the company, as planned at a meeting held on 28 January 2015, encouraged non-unionized employees to leave their workstations and to stage a violent counter-protest, even going so far as to form a group of workers wielding clubs and machetes; (iii) Mr Javier Correa Suárez, the President of SINALTRAINAL, Mr Juan Carlos Galvis, legal adviser to the trade union’s National Executive Board (both of whom benefit from precautionary measures granted by the Inter-American Commission on Human Rights) and Mr Nelson Pérez Tirado, convenor of the Bucaramanga branch of the trade union, received verbal death threats; (iv) Javier Fernández Ortiz Franco and Oscar Palomino, company workers belonging to SINALTRAINAL, were physically assaulted; (v) the situation forced SINALTRAINAL members to call the police who managed to rescue Mr Fernández Ortiz Franco, who had been prevented from leaving the building; (vi) Mr Fernández Ortiz Franco was hospitalized for more than two weeks in a psychiatric hospital as a result of these events; (vii) SINALTRAINAL lodged a complaint with the Prosecutor’s Office on 18 February 2015, in which it referred to two communications of 10 November 2014 and 4 February 2015 requesting the Ombudsperson to issue early warnings in respect of SINALTRAINAL members in the company; and (viii) on 18 February 2015, representatives of the trade union and the company met the mediator of the Committee for the Handling of Conflicts referred to the ILO (CETCOIT) and agreed to hold a meeting in an attempt to improve worker–employer relations, but to date the company has not found a possible date for the meeting. The complainant adds that the abovementioned acts were premeditated by the company’s management to goad SINALTRAINAL members, since it had made it clear that it was bent on breaking up the trade union organization by dismissing its members.

B. The Government’s reply

1. 273. In a communication of 12 September 2014, the Government submitted its observations regarding the allegations concerning the transport company in which it forwarded, first, the company’s reply stating that: (i) the fact that some company workers have joined SINALTRAINAL results in the existence of two industrial trade unions in the company, the National Union of Freight and Passenger Transport Workers (SINTRACAP) and SINALTRAINAL; (ii) this doubling of trade unions is reflected in the simultaneous membership of some workers in both unions and, above all, in the parallel promotion of two lists of demands; (iii) the parallel existence of two negotiating processes in one company is contrary to the principle of unity of agreement introduced by Decree No. 089 of 2014; (iv) the company initiated legal action seeking the setting aside of the revised SINALTRAINAL by-laws and, consequently, to have the company workers’ membership of the trade union declared unlawful, since the company does not form part of the food industry; (v) notwithstanding the foregoing, the company did not refuse to discuss the list of demands presented by SINALTRAINAL, as is demonstrated by the agreement signed on 28 January 2014, which ushered in the direct settlement phase; (vi) a decision of a first instance court of 25 April 2014, which accepted the company’s arguments, found that the transport company workers’ membership of SINALTRAINAL was unlawful. The Bogotá High Court’s decision on the trade union’s appeal is awaited; and (vii) the trade union dispute between SINTRACAP and SINALTRAINAL, in which the company has taken care not to interfere in any way, underscores the need fully to apply Decree No. 089 of 2014 in order to ensure that the principle of unity of negotiation and of agreement is applied in practice.
2. 274. The Government then provides its own observations, in which it maintains that: (i) the complaint filed by SINALTRAINAL on 14 March 2014 against the transport company for its failure to deduct union dues is under consideration; (ii) the complaint filed by SINALTRAINAL on 4 April 2013 concerning the transport company’s refusal to negotiate was settled on 6 April 2014 through a decision which found that, in accordance with the law, the parties had held negotiations on the list of demands and, in the process, various documents had been signed relating to the course taken by and the methodology of the talks; (iii) since it has not been possible to arrive at a collective agreement, by law the next step is either to go to an arbitration tribunal or to stage a strike; (iv) as a result of Decree No. 089 of 2014, which was recently approved in order to facilitate and rationalize collective bargaining processes when several trade unions are involved, SINALTRAINAL and SINTRACAP will have to learn to coexist within the transport company; and (v) a decision is awaited on the appeal against the first court’s decision that the transport company workers’ membership of SINALTRAINAL was unlawful as the company did not belong to the food sector.
3. 275. In the Government’s communication of 26 October 2015, the transport company adds that the decision of the court of first instance that its workers’ membership of SINATRAINAL was unlawful became final through a ruling of the High Court of Labour of Cundinamarca in January 2015. The company contends that, pending the high court ruling, it met all its obligations towards SINALTRAINAL and that relations between the company and the union have now ended.
4. 276. In a communication of 18 December 2014, the Government states that, following a meeting on 10 November 2014 at the Ministry of Labour, the complainant agreed to participate in CETCOIT meetings with the various companies mentioned in this complaint.
5. 277. In a communication of 26 October 2015, the Government first forwards the replies received from various companies mentioned by the complainant in this complaint. In this connection the Fund states that on 26 April 2013 it filed a special petition with the Eighth Labour Court of the Bogotá Circuit requesting it to find that the Fund workers’ membership of SINALTRAINAL was unlawful because the Fund did not belong to the agri-food sector. The Fund adds that it is at present deducting union dues from all workers belonging to SINALTRAINAL. The Fund then supplies information on the situation of various workers who, according to the union, had had their employment contracts terminated as an anti-union measure. In this connection, the Fund states that: (i) it reached a conciliation agreement with Mr Gustavo Serna Labrada, which ended the ordinary labour arbitration proceedings; (ii) after the courts had ordered the reinstatement of Mr Walter Antonio Ramírez Tobar, the Fund and the worker decided to end the employment relationship through a conciliation agreement approved by a labour inspector; (iii) Mr Oscar Mezu Lasso was dismissed on 11 December 2009 and the courts of both first and second instance refused to grant the worker the judicial protection for which he had applied; (iv) Mr Wilson Fernández Victoria resigned from his post on 14 December 2009 in return for a severance package, although he had not claimed one; (v) Ms Claudia Perdomo signed a conciliation agreement with the Fund which ended the employment relationship; (vi) Ms Martha Guaza signed a conciliation agreement with the Fund which ended the employment relationship; (vii) Mr Javier Hidalgo Concha was reinstated by a judicial protection order, but he retired on 15 October 2014; (viii) Mr Luis Eduardo Castillo is still working for the Fund; and (ix) Mr Jesús Henry Calvache was dismissed for a valid reason on 18 January 2013 and his application to the courts for reinstatement was refused by the courts of first and second instance.
6. 278. The Government then provides the reply of the beverage company which contends that: (i) it has signed a collective agreement with six trade union organizations including SINALTRAINAL; (ii) it maintains an open dialogue with the shop stewards of all the trade union organizations present in the company and it provides economic support for the 18 registered executive subcommittees, more than half of which are part of SINALTRAINAL; (iii) the legal proceedings to have the Villavicencio branch of SINALTRAINAL declared unlawful are based on the finding that most of its members do not work in the agri-food sector; (iv) as for the criminal complaint filed by the company in response to a text published by SINALTRAINAL in September 2013, a conciliation agreement closing the case was signed on 12 February 2015 in the presence of the Attorney General; (v) the complaint filed by the company with the Ministry of Labour on account of the material damage caused by a SINALTRAINAL rally in Medellín on 21 August 2013 is under consideration; (vi) an investigation is being held in relation to the criminal complaint filed by the company against various SINALTRAINAL leaders in connection with the aforementioned rally in August 2013; (vii) the other criminal proceedings mentioned by the complainant in fact gave rise to the signing of a conciliation agreement in July 2013. The company says that the other acts denounced by the complainant have already been examined in the context of Case No. 2595.
7. 279. The Government next provides the third service provider’s reply. The company considers, primarily, that its workers may not join SINALTRAINAL because it does not belong to the agri-food industry, although it does supply that industry with the services it requests as an independent contractor. However, in order to comply with the orders of the Ministry of Labour, the company embarked on talks regarding the list of demands presented by SINALTRAINAL. As no agreement could be reached, an arbitration tribunal was set up which issued a ruling which was challenged by the trade union before the Labour Chamber of the Supreme Court. The latter’s decision is awaited. Lastly, the company denies the accusations that it dismissed various workers in 2010 as anti-union action and it emphasizes that the courts rejected the appeals for protection which had been lodged in that respect.
8. 280. The Government then forwards the reply of the first service provider which states that, since it is a haulage company, it is not sufficient for SINALTRAINAL to widen its by-laws to enable company workers to join SINALTRAINAL, which is a trade union in the agri-food sector. The company adds that, with the trade union’s consent, it withdrew its request that the court declare such membership to be unlawful and that since the very small number of workers belonging to SINALTRAINAL had freely decided to resign from the trade union, there was no longer any reason for the company to bargain collectively with the union.
9. 281. The Government then supplies the reply of the temporary service provider which states that, since it is a temporary service provider and not an agri-food company, two of its workers’ membership of SINALTRAINAL is unlawful, which is the reason why the company has refused to discuss the list of demands presented by the trade union.
10. 282. Similarly, the second service provider holds that, as it is a business process outsourcing company and not an agri-food company, it was unlawful for one of its workers to join SINALTRAINAL. The company adds that it initiated legal action in that respect and that the labour court found that the union membership of Ms Nora Ayde Velásquez was null and void. This was the reason why the company refused to discuss the list of demands presented by the trade union in 2013.
11. 283. The plastics company likewise maintains that, since it is a company making plastic bottles and containers, and not an agri-food company, it was not lawful for two of its workers to join SINALTRAINAL and it is not therefore obliged to deduct union dues or discuss the list of demands presented by that trade union. Notwithstanding the foregoing, the company did not refuse to receive SINALTRAINAL representatives and it thus honoured its legal obligations. This is the reason why the Ministry of Labour closed the case brought by the trade union, in which it alleged that the company had refused to bargain collectively.
12. 284. The Government then submits its own observations on the complainant’s allegations. First, it forwards information supplied by various regional labour directorates indicating that: (i) proceedings against the Fund concerning the termination of employment contracts as a measure against the trade union were closed on 23 February 2015 on the grounds that that termination was unrelated to the workers’ trade union activities; (ii) the decision to close the case gave rise to an appeal from the trade union to have it reviewed; (iii) a decision of 9 May 2014 ordered the opening of disciplinary proceedings against the poultry company for refusing to negotiate; (iv) the complaint filed by SINALTRAINAL on 2 March 2015 for alleged acts undermining freedom of association is in the preliminary investigation phase; and (v) no administrative complaint has been received against one of the medical distribution companies.
13. 285. Secondly, the Government states that the common features of the individual cases concerning companies mentioned in the complaint are the alleged refusal of those companies to negotiate with SINALTRAINAL and the legal action taken by them to have their workers’ membership of SINALTRAINAL declared unlawful. The Government states in this respect that: (i) in accordance with the classification laid down in section 356 of the Labour Code, SINALTRAINAL is an industrial trade union. This is the reason why its members must work for companies belonging to the agri-food industry; (ii) although the Colombian legal order recognizes workers’ right to organize without interference from the employer or the State, trade unions must respect the law and democratic principles and they may not accept members engaging in activities other than those set forth in their by-laws; and (iii) the legal action taken by the abovementioned companies is therefore legitimate and does not violate the freedom of association. These companies consider that the acceptance by an industrial trade union of members working in companies which do not engage in the same economic activity is contrary to labour law. The purpose of the aforementioned legal action is to settle this controversy.
14. 286. The Government also contends, that despite the ongoing legal action to ascertain the lawfulness of company workers’ membership of the trade union, the abovementioned companies have not violated the right to collective bargaining. In this connection, the Government holds that: (i) the Fund dealt with the list of demands presented by SINALTRAINAL and is awaiting the convening of an arbitration tribunal; this being the reason why the Ministry of Labour refrained from punishing the company in an initial decision of 10 September 2013 and in its decision on the trade union’s appeal for review; (ii) the transport company engaged in a direct settlement procedure with SINALTRAINAL until the court decision that the workers’ membership of the trade union was unlawful became final, which ended the relationship between the company and the trade union; (iii) the beverage company has signed a collective agreement with SINALTRAINAL; (iv) the third service provider dealt with the list of demands presented by SINALTRAINAL and is now awaiting a decision on the trade union’s appeal seeking the setting aside of the arbitral award; (v) although the first service provider initially refused to negotiate on the grounds that its workers could not join SINALTRAINAL, the Ministry of Labour discontinued its examination of the case, because the workers resigned voluntarily from the trade union; (vi) on 17 September 2014, the Ministry of Labour ordered the closure of the complaint lodged by SINALTRAINAL against the plastics company concerning the refusal to hold talks during the direct settlement stage; (vii) the second service provider initiated judicial proceedings at the end of which the court found that the fact that one company worker was a member of SINALTRAINAL had no effect with regard to collective bargaining.
15. 287. The Government concludes its communication by stating that the authorities are paying attention to the complaints lodged by SINALTRAINAL and are adopting a stance on them. However, in the cases covered by this complaint there have been no violations of collective bargaining.
16. 288. By a communication of 16 May 2016, the Government provides its observations on the allegations concerning the poultry company and first forwards the company’s reply contending that: (i) the alleged systematic campaign to destroy SINALTRAINAL’s presence in the company is non-existent, quite simply because only five out of a total of over 1,000 company workers initially joined this trade union, which never had more than 12 members in the firm; (ii) most workers are not members of any trade union and are satisfied with benefits under the collective agreement which has been in force for more than 12 years and which was revised in December 2014; (iii) there have been no dismissals of SINALTRAINAL members because they were union members. The company dismissed Leonardo Plata Mendoza, Estewinson Pico Calderón, Alberto Sánchez Castro and Jiovanny Sánchez Buitrago before it was aware of their membership of SINALTRAINAL and the legal action taken by those workers to obtain reinstatement was to no avail, thus absolving the company; (iv) the complainant’s allegations regarding the events of 17 February 2015 are also incorrect, since participants in the union rally, most of them from outside the company, made insulting remarks about the company; (v) the complainant is also wrong in asserting that the company encouraged its workers to organize a spontaneous counter protest; (vi) the allegations concerning verbal and physical attacks on various SINALTRAINAL leaders and members are also incorrect; (vii) the company never refused to discuss SINALTRAINAL’s list of demands – it was the trade union which left the negotiating table; and (viii) as it has proved impossible to sign an agreement, the company is waiting for the trade union to inform it of any decision it might take to request the convening of an arbitration tribunal.
17. 289. The Government then supplies its own observations on the complainant’s allegations concerning the poultry company. The Government contends that: (i) the complainant furnishes no proof of the alleged anti-union dismissals and does not say whether they were challenged before the national authorities; (ii) the complainant supplies no evidence to show that resignations from SINALTRAINAL were brought about by pressure from the company; (iii) contrary to the complainant’s allegation, the company did not violate the right of collective bargaining. Since discussions between the company and the trade union failed to produce consent to sign a collective agreement, they can move on to the next stages prescribed by legislation in this case; and (iv) in this context, the complaint filed by the trade union with the Ministry of Labour concerning a refusal to negotiate received the due attention of the Ministry, as a result of which the parties were brought closer together and the direct settlement stage was recommenced.

C. The Committee’s conclusions

1. 290. The Committee notes that, in the present case, the complainant alleges, first, that several companies do not recognize their workers’ right to join and be represented by SINALTRAINAL during collective bargaining and that, secondly, the leaders and members of that organization are being targeted by numerous acts of retaliation, including the filing of criminal complaints and anti-union dismissals.
2. 291. With reference to the alleged refusal of some companies to allow their workers to join SINALTRAINAL, the Committee takes note of the fact that the complainant states that, in breach of the rights recognized in Conventions Nos 87 and 98, the transport company, the Fund, the plastics company, the temporary service provider, and the first and second service providers asked the courts to cancel SINALTRAINAL’s revised by-laws and to declare their respective workers’ membership of the trade union to be unlawful. The Committee likewise takes note of the fact that the complainant adds that some of the aforementioned companies refuse to deduct SINALTRAINAL members’ union dues. In addition, the Committee notes that the abovementioned companies and the Government contend that: (i) the abovementioned lawsuits are based on the finding that, under section 356 of the Labour Code, SINALTRAINAL is a trade union of the agri-food industry, whereas the activities of the plaintiffs lie outside that sector; (ii) the trade union’s new by-laws are inconsistent with the category established in the Labour Code, insofar as SINALTRAINAL purports to cover a multiplicity of branches of activity; (iii) the aforementioned lawsuits do not constitute an act denying freedom of association – their aim is rather to give effect to labour law; (iv) pending the outcome of current judicial proceedings, the companies are deducting SINALTRAINAL members’ union dues; and (v) decisions of courts of first instance (2014) and of second instance (January 2015) resting on section 356 of the Labour Code declared the transport company workers’ membership of SINALTRAINAL to be unlawful because that company was not part of the agri-food industry.
3. 292. From the information supplied in respect of the first allegation by the complainant, the companies in question and the Government, the Committee observes that the SINALTRAINAL amended its by-laws in 2011 with a view to widening its scope. The Committee notes that, after stating in article 1 of the trade union’s by-laws that SINALTRAINAL is a first-level industrial trade union, the amended version of article 2 broadens its scope, since it includes therein all complimentary activities or those related to the agri-food sector and explicitly mentions activities going beyond food production, such as the transport of food or water, restaurants and hotels, the supply of steam and water, the collection, purification and distribution of water, sewage and refuse disposal, sanitation, the manufacture of fibres, fabrics and textiles, the manufacture of knitwear and crocheted articles, garments, the preparation and dyeing of hides, the manufacture of leather articles, footwear and the like, etc.
4. 293. The Committee also notes that section 356 of the Labour Code classifies (first-level) workers’ unions as follows: (a) company unions if they consist of persons of various professions, trades or specialities who provide their services in one and the same company, establishment or institution; (b) industrial or sectoral unions if they consist of individuals who provide their services in various companies in the same industry or sector of economic activity; (c) occupational trade unions if they consist of individuals engaging in the same profession, trade or speciality; and (d) trade unions covering several trades only in cases where workers are not sufficiently numerous to organize in one of the other three categories. The Committee notes in this respect that, in Ruling C180/16, the Constitutional Court found that section 356 of the Labour Code did not infringe on the body of constitutional rules with respect to freedom of association.
5. 294. The Committee further notes that: (i) the judicial dispute over the lawfulness of SINALTRAINAL membership is set against a background of negotiation at the company, and not the industrial level; (ii) the complainant does not say how many members are concerned by the lawsuits, while some of the companies involved in this case mention a very small number of members; and (iii) the Committee has not been informed of the existence of an official classification of sectors of activity for the purposes of workers’ collective representation and collective bargaining (the annexes supplied by one of the companies refer only to the classification of industries and sectors of activities for the purposes of assessing occupational hazards).
6. 295. Lastly, the Committee notes that it has already considered a similar nexus of issues in respect of SINALTRAINAL in the context of Case No. 2595 and that, on that occasion: (i) it considered, first, that employees of temporary service providers who work in the agri-food sector should be entitled to become members of SINALTRAINAL if they so wish; and (ii) secondly, it requested the Ministry of Labour to examine the right of workers of the Acueducto Metropolitano de Bucaramanga to join SINALTRAINAL (Report No. 354, June 2009, paragraphs 584–585).
7. 296. In this connection, the Committee notes that, in the present case, some companies which take issue with SINALTRAINAL’s ability to accept its workers as members and to negotiate on their behalf are temporary service providers and service providers and that some of their employees do in fact work in companies in the agri-food sector. The Committee therefore again points out that, although the workers in those companies have no direct employment relationship with companies in the agri-food sector, when they do work in that sector, they may wish to become members of a trade union organization which represents the interests of workers in that sector. Moreover, the trade union organization that represents these workers should, as a corollary of the right of association, have the right to present lists of demands and to bargain collectively with companies in the sector on their behalf [see 349th Report of the Committee, Case No. 2556, para. 754, and 354th Report of the Committee, Case No. 2595, para. 584]. The Committee, noting with interest that the labour administration ordered one of these companies to discuss the list of demands submitted by SINALTRAINAL, trusts that full recognition will be given to the right of all employees of temporary service providers or service providers who work in the agri-food industry, if they so choose, to join SINALTRAINAL and, if SINALTRAINAL shows that it is sufficiently representative in the enterprise, to be represented by that organization during collective bargaining. The Committee requests the Government to keep it informed in this regard.
8. 297. With reference to the SINALTRAINAL membership of workers who do not work in the agri food sector and whose companies allege that, since the trade union’s new by-laws purport to cover diverse sectors of activity, they do not comply with the trade union classification established in section 356 of the Labour Code, the Committee invites the Government and the most representative social partners to analyse the consequences and impact of implementing section 356 of the Labour Code on workers’ effective access to freedom of association and on enhancing collective labour relations in the country. The Committee requests the Government to keep it informed in this regard. Noting also that decisions are awaited in most of the judicial proceedings initiated by various companies in connection with SINALTRAINAL’s by-laws, the Committee requests the Government to keep it informed of the outcome of these proceedings.
9. 298. With respect to the alleged denial by some of the abovementioned companies of SINALTRAINAL’s right to bargain collectively and the lack of action by the labour administration, the Committee takes note of the fact that the complainant alleges that: (i) the complaints that the admission of workers to SINALTRAINAL was unlawful were filed with courts immediately after the trade union had presented its respective lists of demands to the companies; (ii) the administrative complaints lodged by the trade union with the Ministry of Labour produced no effect, because they were either closed or rejected. The Committee also notes the concurring statements of the companies and the Government that: (i) in most cases, although the capacity of SINALTRAINAL to represent their workers is being challenged in court, the companies did not refuse to discuss the list of demands with the trade union, but the parties were unable to agree on signing a collective agreement – this being the reason why the trade union turned or is turning to an arbitration tribunal; and (ii) in other cases, negotiations ended since the links with SINALTRAINAL had disappeared because either the few members of SINALTRAINAL had resigned from the trade union or the courts had found that such membership was unlawful. The Committee likewise takes note of the Government’s statement regarding the importance of applying Decree No. 089 of 2014, the purpose of which is to facilitate and rationalize collective bargaining processes in situations involving several trade unions.
10. 299. Although it notes the Government’s submissions regarding the discussion of the lists of demands presented by SINALTRAINAL, the Committee recalls that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 935]. Noting that the complainant’s allegations and the replies of some of the companies concerned show that the discussion of SINALTRAINAL’s lists of demands took place against a tense background that was hardly conducive to the holding of fruitful negotiations, the Committee requests the Government to take whatever steps it can to encourage the companies and the complainant to improve the climate of dialogue and mutual respect. In this connection, the Committee recalls the meeting between the Ministry of Labour and the complainant on 10 November 2014, which led to the complainant agreeing to take part in CETCOIT meetings with the various companies mentioned in this complaint. The Committee requests the Government to keep it informed in this regard. The Committee, also noting that, in some of the companies concerned, various trade union organizations appear to have taken part alongside one another in the negotiations and to have presented parallel lists of demands, trusts that the implementation of Decree No. 089 of 2014, which seeks to facilitate and rationalize collective bargaining when several trade unions are involved, will help to expedite negotiations between SINALTRAINAL and the abovementioned companies in the future.
11. 300. With reference to the complainant’s accusation that some bottling companies in Colombia are deploying an anti-union strategy, which consists in filing numerous criminal complaints against SINALTRAINAL leaders in order to intimidate them, the Committee takes note of the fact that the beverage company states that two of the three criminal complaints filed against SINALTRAINAL leaders which are mentioned in the complaint led to the signature of conciliation agreements (one in July 2013, the other in February 2015) which resulted in the closure of criminal proceedings, while the complaint following the acts committed at a rally in 2013 is being investigated. While it takes note of this information, the Committee recalls that it already examined a similar situation in the context of Case No. 2595 and that it requested the Government to take whatever steps it could to encourage the company and the complainant to improve the climate for dialogue in the company’s various works, so that each side can carry out its functions properly and put aside hostilities, threats, insults and all other forms of violence. As this situation persists, it remains only for the Committee to reiterate its previous recommendation and, as stated above, once again to invite the companies concerned and the complainant to make the best possible use of existing opportunities for dialogue at the national level, in particular in the context of the CETCOIT.
12. 301. With reference to the complainant’s allegations concerning the premeditated assault of various SINALTRAINAL leaders and members on 17 February 2015 by the non-unionized workers of the poultry company, the Committee takes note of the company’s energetic denials and its statement that the trade union’s members engaged in insulting behaviour towards the company. As the complainant says that it has filed a criminal complaint in connection with the alleged acts, the Committee asks the Government to keep it informed of the handling of this case. The Committee also takes note of the fact that the company and the trade union met under the auspices of the CETCOIT on 18 February 2015 and that they signed an agreement in which they undertook to hold a series of meetings in an attempt to settle their differences out of court. Noting that the complainant contends that the company has not shown any interest in holding the planned meetings, the Committee encourages both parties to pursue the path of dialogue commenced before the CETCOIT.
13. 302. As for the allegations of numerous anti-union dismissals in some of the abovementioned companies, the Committee notes, first, that it has not received any comments on the alleged anti-union dismissal of Mr Rafael Rozo on 21 March 2013 by the transport company or on that of Ms Nora Ayde Velásquez, on 4 June 2014, by a service provider. The Committee therefore requests the Government to supply information on these cases.
14. 303. With reference to the alleged anti-union dismissals by the third service provider of six company workers belonging to SINALTRAINAL who brought lawsuits in an attempt to obtain their reinstatement, the Committee notes that these lawsuits were rejected by courts of first and second instance in 2010. Furthermore, the Committee takes note of the fact that the complainant does not provide the names of the workers allegedly dismissed. In the absence of this information, the Committee will not pursue the examination of this allegation.
15. 304. With reference to the alleged nine anti-union dismissals of SINALTRAINAL leaders and members by the abovementioned Fund between 2009 and 2012 a few days after they became members and were appointed trade union leaders, the Committee notes, first, that the company contends that: (i) one of these workers remained in the Fund’s employ; (ii) three workers were not dismissed but terminated their employment relationship with the company by mutual agreement; (iii) a conciliation agreement ending judicial proceedings was signed with one of the workers; (iv) the courts rejected the application for reinstatement filed by two workers; (v) one worker, whose reinstatement was ordered by the court, retired on 15 October 2014; and (vi) another worker whose reinstatement was ordered by the court signed a conciliation agreement ending his employment relationship with the company. Secondly, the Committee notes that the Government states that the complaint filed by the trade union regarding the anti-union nature of the dismissals was closed on 23 February 2015 on the grounds that the dismissals were unrelated to the workers’ trade union activities. At the same time, the Committee observes that the rulings handed down by the complainant show that the two abovementioned court orders of reinstatement were based on the finding that the dismissals constituted anti-union measures and, more specifically, the second instance ruling of the 22nd Criminal Court in the Cali Circuit of 30 January 2013, ordering the reinstatement of Javier Hidalgo Concha, called upon the company to desist from committing anti-union acts and established that other workers belonging to SINALTRAINAL had been dismissed during the same period a few days after the dismissal considered by the court.
16. 305. With reference to the alleged anti-union dismissal of various workers by the abovementioned poultry company, the Committee takes note of the fact that, in its reply, the company holds that Leonardo Plata Mendoza, Estewinson Pico Calderón, Alberto Sánchez Castro and Jiovanny Sánchez Buitrago were dismissed before the company knew that they were members of the trade union and that Norberto Rueda Barragán was dismissed for the valid reason that he had not honoured his obligations under the company’s rules and regulations. At the same time, the Committee sees that the rulings handed down in respect of the complainant show that: (i) Norberto Rueda Barragán, a member of the committee negotiating the list of demands, was reinstated by rulings of courts of first and second instance (of 29 November 2013 and 31 January 2014, respectively), which found that his dismissal constituted an anti-union measure and which called on the company to desist from anti-union acts; (ii) the court of first instance hearing the application for protection decided on 7 October 2013 that the anti-trade union nature of the dismissal of Leonardo Plata Mendoza, Alberto Sánchez Castro and Jiovanny Sánchez Buitrago was proven. However, on 19 November 2013 the court of second instance overturned that ruling and declared the application for legal protection inadmissible because there were doubts surrounding the anti-union reasons behind the dismissals, which should be clarified in proceedings before an ordinary labour court, and found that the possible violation of freedom of association and loss of employment did not constitute imminent, irreparable injury such as to justify action for the protection of a constitutional right.
17. 306. In addition to each of the complaints of anti-union dismissal, the Committee also noted the complainant’s general allegations regarding the alleged slowness, inefficiency and fragmentation of national mechanisms affording protection against anti-union discrimination. The Committee observes that such allegations are frequent in the numerous complaints recently filed with the Committee by Colombian trade union organizations and that, on various occasions, the Committee has requested the Government to take the necessary measures to expedite the resolution of complaints of anti-union discrimination (see Case No. 2946, 374th Report, March 2015, paragraph 251, and Case No. 2960, 374th Report, March 2015, paragraph 267).
18. 307. In light of the foregoing and taking account of the fact that the Government is responsible for preventing all acts of anti-union discrimination and must ensure that complaints of anti union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest, op. cit., para. 817] the Committee invites the Government, in consultation with the most representative social partners, to embark upon a joint examination of national mechanisms affording protection against anti-union discrimination with a view to taking such measures as may prove necessary to guarantee adequate protection in this respect. The Committee requests the Government to keep it informed in this regard and reminds it that it may request ILO technical assistance, if it so wishes.

The Committee’s recommendations

1. 308. In view of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that full recognition will be given to the right of all employees of temporary service providers or service providers who work in the agri-food industry, if they so choose, to join SINALTRAINAL and, if SINALTRAINAL shows that it is sufficiently representative in the enterprise, to be represented by this organization during collective bargaining processes. The Committee requests the Government to keep it informed in this regard.
   • (b) The Committee invites the Government and the most representative social partners to analyse the conditions and impact of implementing section 356 of the Labour Code on the effective access to workers to freedom of association and the enhancement of collective labour relations in the country. The Committee requests the Government to keep it informed in this regard.
   • (c) The Committee requests the Government to keep it informed of the outcome of judicial proceedings regarding the lawfulness of SINALTRAINAL’s by laws and various companies’ workers’ membership of this trade union.
   • (d) The Committee requests the Government to keep it informed of the handling of the various criminal complaints related to this case and filed either by companies or by the complainant.
   • (e) The Committee requests the Government to take whatever measures it can to encourage the companies and the complainant to improve the climate of dialogue and mutual respect and invites the companies concerned and the complainant to make the best possible use of existing opportunities for dialogue at the national level, in particular in the context of the CETCOIT.
   • (f) The Committee requests the Government to supply information on the alleged anti-union dismissals of Mr Rafael Rozo and Ms Nora Ayde Velásquez.
   • (g) The Committee invites the Government, in consultation with the most representative social partners, to embark upon a joint examination of national mechanisms affording protection against anti-union discrimination with a view to taking such measures as may prove necessary to guarantee adequate protection in this respect. The Committee requests the Government to keep it informed in this regard and reminds it that it may request ILO technical assistance, if it so wishes.