Report in which the committee requests to be kept informed of development - Report No 382, June 2017

Case No 3131 (Colombia) - Complaint date: 09-APR-15 - Follow-up

Allegations: The complainant organizations allege anti-union behaviour by a coalmining company and lack of proper protection from the labour inspectorate

1. 251. The complaint is contained in communications dated 9 and 14 April 2015 from the Confederation of Colombian Workers (CTC) and the Workers’ Trade Union of Colombia Coal Company (SINTRACOAL).
2. 252. The Government sent its observations in a communication dated 30 November 2015.
3. 253. 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 complainants’ allegations

1. 254. The complainants state that SINTRACOAL is a first-level trade union organization founded on 24 June 2013, with 135 affiliated members among the 450 workers employed by Colombia Coal Company (“the mining company”), which is a coalmining concern.
2. 255. The complainants state as a matter of complaint that, since the union’s foundation, the employer has shown systematic anti-union behaviour which they have brought to the attention of the competent authorities through two administrative complaints and one urgent request for assistance. However, the authorities have failed to honour their legal obligation to investigate and sanction the mining company. The complainants affirm that SINTRACOAL: (i) sent an urgent request for assistance on 10 March 2014 to the Deputy Minister for Labour Relations, claiming anti-union discrimination against union members and leaders in the form of degradation of working conditions, disciplinary sanctions, refusal to deduct contributions, failure to comply with the collective agreement, and the employer’s refusal to pay salary on grounds of participation in union information meetings. According to the complainants, that request has never been considered; (ii) on 13 March 2014, submitted an initial administrative complaint denouncing redundancies, anti-union acts, systematic persecution, harassment and undermining of union leaders, and refusal by the mining company to deduct union contributions for all workers as a standard benefit; and (iii) on 25 March 2015, submitted a second administrative complaint denouncing failure to comply with the collective agreement, non-observance of industrial safety rules, and disciplinary sanctions against union leaders and members. The union mentions in particular the situations of the following persons who were each punished with an eight-day suspension: (1) Mr Julio César Cortés Guegue, trade union officer at SINTRACOAL, whose punishment for showing lack of respect to a line manager was revoked on 25 January 2014 by Municipal Court No. 49 on grounds of violations of due process, with the mining company ordered to pay the salary it had declined to pay during the punishment; (2) Mr Serafín Balguera Santos, vice-president of SINTRACOAL, punished on 17 October 2014 for arriving at work with a blood alcohol level of 0.026 per cent and who is now awaiting the court’s decision for protection of constitutional rights; and (3) Mr Miguel Ángel Pinilla Gómez, punished on 11 September 2014 for having spoken to a media outlet about irregularities at the mining company.
3. 256. The complainants also state that, in response to various anti-union acts by the mining company, SINTRACOAL decided to hold eight days of protests at the coalmines in July 2014, and that: (i) the protests were short-term and peaceful; (ii) its actions enabled SINTRACOAL to make initial approaches, through the president of the CTC, to the mining company’s management to set up a panel for negotiation and dialogue with the workers; (iii) the dialogue settled the labour dispute; and (iv) the management of the mining company made an oral commitment not to take any action in reprisal for the protests.
4. 257. The complainants allege that, in violation of what had been agreed at the negotiating table, the mining company took three reprisal measures aimed at silencing the union: (i) it initiated “special proceedings to define as suspension or strike”, heard in the first instance by the Higher Court of Cundinamarca, which ruled that the standstill caused by the protests was unlawful. The union appealed against those proceedings, questioning the judiciary for having failed to take due account of the testimony of the CTC president or the background to the case; (ii) it filed criminal complaints against the leadership of SINTRACOAL for its participation in the workers’ protests; and (iii) it submitted an application to the Ministry of Labour for temporary suspension of work at certain coalmines, seeking thereby to suspend the employment contracts of 228 workers. The complainants allege that the mines affected by the closure application were those where membership of SINTRACOAL was highest, which showed a disregard for union members.
5. 258. The complainants also state that: (i) faced with this situation, SINTRACOAL decided to bring the labour dispute before the Committee for the Settlement of Disputes before the ILO (CETCOIT); (ii) the mining company showed no desire for conciliation and the union rejected a proposal by the company that the union withdraw its two administrative complaints in exchange for the company withdrawing its criminal complaints, while the company’s proceedings in the labour courts to have the strike declared unlawful would continue; and (iii) the offer was rejected.
6. 259. The complainants state that the union held a peaceful march in Bogotá to protest against: (i) increasing threats by the mining company arising from its application to close coalmines temporarily; (ii) the apathy of the Ministry of Labour, specifically the Labour Inspector in Ubaté; and (iii) the persistent anti-union behaviour of the mining company’s management. The march, authorized by the Government Secretariat, ended at the premises of the Ministry of Labour, where the complainants state that the union leaders were met by the Deputy Minister for Labour Relations, who undertook to ascertain the reasons for the delays to the complaints submitted by the union, and it was agreed to submit a fresh administrative complaint to the labour inspectorate in Ubaté (Cundinamarca).
7. 260. The complainants assert, finally, that: (i) the labour authority did not act equitably in failing to address in a timely and effective manner a systematic attack by the mining company against the union, despite various requests for assistance made by SINTRACOAL; and (ii) likewise, the judicial authorities have disregarded their claims, whereas the proceedings initiated by the mining company have already been processed by the courts.

B. The Government’s reply

1. 261. In a communication dated 30 November 2015, the Government communicated its observations and those of the mining company. The company states that, contrary to the statements by the union: (i) the company has no plant to cook coal in the town of Ubaté (Cundinamarca); (ii) the actual number of union members is less than the number stated by the complainants, while the number of workers contracted to the company is greater; and (iii) the commitments supposedly undertaken at the negotiating table as a result of the protests, as referred to by the union in its complaint, did not take place.
2. 262. Concerning the union’s complaints of its alleged anti-union activities, the mining company states that: (i) it has never carried out anti-union acts; (ii) it has complied strictly with its commitments under the collective agreement signed on 25 October 2013; (iii) the union in fact submitted complaints to the labour inspectorate of which the mining company was informed; (iv) the mining company has always appeared before the competent authorities when requested; and (v) deductions of union contributions have been implemented in accordance with the law.
3. 263. Concerning the protests mentioned in the complaint, the mining company states that: (i) it understands the complainants to be referring to the stoppage that SINTRACOAL organized in July 2014 which was declared unlawful by the judicial authorities; (ii) the protests were not short-lived and peaceful, rather the company’s operations were halted completely by unionized and non-unionized workers, to such an extent that the entrance gates to the mines in the towns of Guachetá and Cucunbá were chained up, preventing those who wished to do so from working; (iii) the protests lasted 14 days, and not eight as stated by the complainant organizations; (iv) as a consequence of the blockade of operations, the mining company sustained an income loss of 196,122,164 Colombian pesos, which added to the losses it had been suffering since 2012; (v) SINTRACOAL is a minority union and, under the provisions of article 444 of the Substantive Labour Code (CST) it should have obtained, prior to the blockade of operations, a majority vote in favour from the mining company’s workers; (vi) SINTRACOAL blocked access to the mining company hastily, without calling on the Labour Ministry to verify voting held among the union’s members to decide whether to declare a strike; and (vii) the union warned from the start of the protest that it would not be responsible for any damage caused to machinery, since the stoppage being sought was total.
4. 264. The mining company also states that: (i) the application to halt some coalmines temporarily was made solely for economic reasons and the Ministry of Labour, by Resolution No. 1042 of 11 June 2015, rejected it, a decision against which the mining company has since appealed; (ii) it has appeared three times before the CETCOIT to propose settlement formulas including the withdrawal of criminal complaints, of the application for the complete stoppage of activities and of the application for partial suspension of activities, but the union did not put on the table any options for stopping the actions already under way; (iii) the company has no knowledge of the peaceful march in Bogotá mentioned by the complainants; (iv) the Ministry of Labour and the Colombian justice system have found that SINTRACOAL is making unfounded claims, that its representatives are behaving improperly, that its president has no respect for its leaders and vice-president, who was the subject of disciplinary proceedings after giving positive breathalyser readings; and (v) both the judiciary and the Executive, through the Ministry of Labour, have acted promptly in settling the complaints relating to this case, as demonstrated by the first instance judgments concerning both the unlawful nature of the shutdown of operations and the application for temporary closure submitted to the Ministry of Labour.
5. 265. The Government emphasizes that the Ministry of Labour has duly addressed the various applications and actions initiated by SINTRACOAL. In this regard the Government states specifically that: (i) the first administrative complaint filed on 15 April 2014 concerning alleged anti-union persecution gave rise to a process of sanctions for which the statement of objections is still being drafted; (ii) the second administrative complaint filed on 26 March 2015 concerning alleged anti-union persecution is still at the preliminary investigation stage; and (iii) concerning the application for temporary suspension of operations presented by the mining company, a written record exists which documents the opportunity offered to the union to state its positions freely and voluntarily.
6. 266. Concerning the protests which triggered the finding of unlawfulness in respect of the suspension or strike promoted by SINTRACOAL, the Government underscores that: (i) the right to strike is enshrined in article 25 of the Constitution of Colombia; (ii) the right to strike is not absolute, and is subject to such regulation as the legislature may impose; (iii) under the current legislation, striking in Colombia may take place in the framework of a collective dispute of an economic nature (CST, article 429) or in the form of a stoppage declared because of the employer’s failure to meet labour obligations (CST, article 379); (iv) regarding the second procedure, for a collective suspension of activities to be regarded as lawful, the employer must have behaved in a manner manifestly contrary to its obligations and which affects the normal pattern of relations with its workers (Labour Division of the Supreme Court of Justice, Judgment No. 40428 of 3 July 2009); (v) since the adoption of Law No. 1210 of 2008, judgment of the unlawfulness of strikes has been the responsibility of the higher courts (labour division) of first instance and, in the second instance, of the Supreme Court of Justice; and (vi) in the specific case of the present complaint, the cessation of activities was declared unlawful in the first instance and the second instance judgment is pending.

C. The Committee’s conclusions

1. 267. The Committee observes that the present case refers, on one hand, to a complaint alleging a series of anti-union acts against SINTRACOAL by a mining company, in respect of which the Ministry of Labour failed to provide proper protection and, on the other, to allegations of reprisals taken by the company in response to a strike held by the union.
2. 268. Concerning the complaint about a series of anti-union acts against which the public authorities are alleged not to have provided adequate protection, the Committee notes the complainants’ allegation that, faced with systematic harassment including disciplinary sanctions against leaders and members, the mining company’s refusal to deduct union contributions and its failure to comply with the collective agreement, they submitted an urgent request for assistance to the Ministry of Labour and an administrative complaint in March 2014, and then a second administrative complaint in March 2015, all to no avail. In this context, the Committee notes that the complainants refer specifically to the disciplinary sanctions (suspensions) imposed on the union’s leaders, Mr Julio César Cortés Guegue and Mr Serafín Balguera Santos, and its member, Mr Miguel Ángel Pinilla Gómez.
3. 269. The Committee also notes that the mining company denies having committed anti-union acts and states that: (i) it has complied fully with the collective agreement signed in October 2013; (ii) it deducted union contributions in accordance with the law; and (iii) it always appeared before the competent authorities when requested. The Committee also notes the Government’s statement that, for the first administrative complaint, the statement of objections is still being drafted, while the second complaint is at the preliminary investigation stage.
4. 270. Concerning the alleged inefficiency of the Ministry of Labour in considering the two administrative complaints submitted by SINTRACOAL, the Committee notes that, three and two years, respectively, after their submission, it still has no information concerning any decision taken by the labour administration. In this context, the Committee recalls that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 835]. The Committee further recalls that, in the framework of several cases considered recently [see 381st Report, March 2017, Case No. 3061, paras 306 and 307, 374th Report, March 2015, Case No. 2946, para. 251 and Case No. 2960, para. 267], it urged the Government to take the necessary action to expedite the processing of administrative complaints relating to claims of violation of trade union rights. The Committee reiterates that request in respect of the two complaints lodged by SINTRACOAL and also requests the Government to inform it of their outcome. The Committee requests the Government additionally to inform it of the outcome of the judicial proceedings relating to the disciplinary sanction imposed on Mr Serafín Balguera Santos.
5. 271. The Committee notes the second allegation of the complainant organizations, concerning a series of reprisal measures taken by the employer following protests held at the mines in July 2014, including an application for the temporary closure of certain mines, criminal complaints against the union leadership and an application for the strike to be declared unlawful. With respect to the application for temporary closure of operations at certain mines, the Committee notes the allegation by the complainant organizations that the mines affected by such closure were those with largest union membership. The Committee notes also the Government’s reply stating that it visited the mines concerned, and the mining company’s reply stating that the Ministry of Labour denied its application for temporary closure, a decision against which it has appealed; accordingly, the Committee requests the Government to inform it of the final decision. Likewise, the Committee requests the Government and the complainant organizations to keep it informed of the consideration of the criminal complaints brought by the mining company against several managers of SINTRACOAL.
6. 272. Concerning the finding of unlawfulness regarding the strike held by SINTRACOAL in July 2014, the Committee notes that the Higher Court of Cundinamarca, in the first instance, declared the suspension of activities unlawful and that, on the basis of the information publicly available, the Appellate Court for Labour of the Supreme Court of Justice, in a judgment of 27 January 2016, confirmed this ruling.
7. 273. Finally, the Committee observes that the facts of the present complaint have led to a mediation process before the CETCOIT, without agreement being reached between the parties. Duly noting this attempt, the Committee requests the Government to use all available means to support the mining company and the complainant organizations in improving the climate of dialogue and mutual respect and invites them to take best advantage of the opportunities for dialogue that exist at the national level.

The Committee’s recommendations

1. 274. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to take the necessary action to expedite the processing of the two administrative complaints lodged by SINTRACOAL and requests that it be kept informed of their outcome.
   • (b) The Committee requests the Government to keep it informed of the outcome of the judicial proceedings concerning the disciplinary sanction imposed on Mr Serafín Balguera Santos.
   • (c) The Committee requests the Government to inform it of the final decision concerning the mining company’s request for temporary closure of a number of mines.
   • (d) The Committee requests the Government and the complainants to keep it informed of the consideration of the criminal complaints made against the union leadership.
   • (e) The Committee requests the Government to use all available means to support the mining company and the complainants in improving the climate for dialogue and mutual respect, and invites them to take best advantage of the opportunities for dialogue that exist at the national level.