Report in which the committee requests to be kept informed of development - Report No 387, October 2018

Case No 3090 (Colombia) - Complaint date: 16-MAY-14 - Closed

Allegations: Complainant alleges numerous anti-union acts, including anti-union persecution and discrimination, dismissals, and hindering collective bargaining in private companies and public institutions

1. 245. The complaint is contained in a communication dated 16 May 2014 from the Single Confederation of Workers of Colombia (CUT) on behalf of its affiliated unions, the National Union for those working in the transport of goods, documents, packages, couriers, mass transport, containers, and other similar services provided to industry and the economic sector in Colombia (SINTRAIMTCOL); the Union of Public Employees of the National Training Service – SENA (SINDESENA); and the Union of Workers for the San Rafael University Hospital (ASINTRAF).
2. 246. The Government sent its observations in communications dated 14 May 2015, 14 June 2016, 30 September 2016, 7 March 2018 and 26 September 2018.
3. 247. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 248. In its communication dated 16 May 2014, the CUT indicates that the present complaint refers to cases of anti-union persecution and discrimination relating to three affiliated unions.

First case: SINTRAIMTCOL

1. 249. The complainant organization alleges that since SINTRAIMTCOL was established on 30 August 2011, the board of directors of Coordinadora Mercantil in the city of Cartagena (hereafter “the enterprise”) has tried various methods to persuade workers to resign from the trade union, carrying out acts of persecution, repression and workplace harassment with a view to breaking up the union. The complainant states that on several occasions, the enterprise did not grant the trade union leave that had been requested and that furthermore, it retaliated against unionized workers when they requested that a judicial inquiry be carried out in 2011 into the fact that the enterprise violated the maximum working day. According to the complainant organization, the enterprise proceeded to abruptly impose changes on the working day of unionized workers in order to disperse the members of the union, preventing trade union leaders from being able to interact with one another. Moreover, the complainant organization alleges that only non-unionized workers were able to work extra hours and thus earn higher wages, and notes that in this regard, on 14 September 2012, SINTRAIMTCOL submitted a criminal complaint to the local branch of the Office of the Public Prosecutor in Cartagena citing the violation of the rights of assembly and association, however no progress has been made thus far concerning that complaint.
2. 250. The complainant organization states that, in addition to the aforementioned complaint, SINTRAIMTCOL submitted an administrative labour complaint to the Ministry of Labour and that on 8 February 2013 the enterprise received a fine for violating the right of association equivalent to 80 times the 2013 statutory minimum monthly wage. Furthermore, on 4 March 2013, by an order dated 7 December 2012, the enterprise received a fine from the Ministry of Labour equivalent to 50 times the 2013 statutory minimum monthly wage for not holding the final bargaining meeting in order to convene an arbitration tribunal relating to a list of claims. On 10 January 2014, the enterprise received another fine from the Ministry of Labour equivalent to 700 times the statutory minimum monthly wage for not complying with the order dated 7 December 2012.
3. 251. The complainant organization states that the fines imposed by the Ministry of Labour were insufficient, since the enterprise continued to carry out anti-union activities of harassment and discrimination. According to the complainant organization, with the aim of breaking up the trade union, the enterprise offered sums of money to unionized workers if they resigned from the enterprise. It states that at the end of December 2013, the chairman of the trade union, Mr Luis Carlos Pitalua Baza, and the trade union leader, Mr Leonardo Camargo Samudio, accepted the money offered by the enterprise and resigned. Following this, on 4 January 2014, the unionized workers held a general assembly and decided to replace the leaders who had left their positions, electing Mr Edwin Ospino Fuentes as chairman, and Mr Arcenio Torres Orozco to the other leadership position. The CUT alleges that, notwithstanding the fine imposed by the Ministry of Labour on 10 January 2014, the enterprise continued to pressure unionized workers and managed to dismiss three unionized workers: Mr Marden Perea Martelo, Mr Edwin Isaac Villadiego Martínez and Mr José Augusto Bustamante del Toro.
4. 252. The complainant organization states that in the light of these facts, SINTRAIMTCOL sent a letter on 16 January 2014 to the director of the enterprise in Cartagena, to which it did not receive a response, and the following day it submitted a copy of that letter to the Ministry of Labour. As a result, an administrative investigation was initiated and it was decided, at the request of the trade union, to carry out a judicial assessment at the enterprise’s premises. The CUT alleges that, although this assessment was carried out on 30 January 2014, when the Ministry of Labour inspectors arrived, the trade union officials who had been identified by the Ministry to provide testimony had been removed from the premises.
5. 253. According to the CUT, the pressure and threats were so great that many of the members of SINTRAIMTCOL could no longer put up with it, and on 7 February 2014, they signed agreements to terminate their employment contracts. In addition, the CUT alleges that the coordinator for industrial relations for the enterprise prepared the minutes of a general assembly meeting of the trade union supposedly held on 6 February 2014, at which the members of SINTRAIMTCOL had supposedly decided to dissolve the trade union, while the members had in fact been carrying out their work activities at the time of the supposed assembly meeting. Lastly, it states that SINTRAIMTCOL lodged complaints in that regard with the Ministry of Labour, the Ombudsman’s office and the Office of the Public Prosecutor.
6. 254. In view of the above, the CUT states that while institutions have been created to guarantee the right to organize: (i) the Office of the Public Prosecutor does not act swiftly or in a timely and agile manner when faced with repeated and systematic acts of anti-union harassment, persecution and discrimination, having merely limited itself to receiving the criminal complaint; (ii) the Ministry of Labour has demonstrated that it is more diligent in its actions, issuing the enterprise with substantial fines on three occasions, although those have not, however, been sufficient to stop the enterprise from carrying out the acts of anti-union harassment, persecution and discrimination; and (iii) draws attention to the fact that the efforts and speed of the Ministry of Labour in cases where collective bargaining is denied is not the same as in cases of anti-union harassment, persecution and discrimination. In light of this, the CUT affirms that the institutions mentioned, instead of protecting the right to organize, have become accomplices to the violations of labour rights by doing nothing or by not acting in a timely manner.

Second case: SINDESENA

1. 255. The complainant organization states that the national training service (hereafter training institution) is a public body that has a large number of temporary workers experiencing serious difficulties relating to job security, and which appointed a new national director in March 2013 who refuses to recognize the leaders of the organization. The CUT confirms that cuts to student and worker welfare, the lack of resources for providing professional training, and, fundamentally, the lack of attention to the demands of the trade union leaders caused significant discontent among students and workers, which led to holding assemblies in which participants were repressed and mistreated by the police. The CUT states that in June 2013, with the Office of the Public Prosecutor and a senator acting as mediators, a dialogue was begun with the general directorate of the training institution, which culminated in agreements being concluded to seek a solution to the claims of the students and the workers through their organizations, and the commitment of these organizations to suspend the permanent assemblies and return to academic and administrative normality.
2. 256. The CUT alleges that, notwithstanding those agreements, the general directorate of the training institution took a series of decisions that contravened the agreements concluded and breached various points of the agreements, including those relating to improving medical services; the provision of plane tickets requested by SINDESENA for trade union activities; and other aspects relating to occupational safety and health. Furthermore, the CUT alleges that investigations were begun with a view to initiating disciplinary procedures against those workers who had legitimately exercised their right to protest and that requests for trade union leave were refused when requested by union leaders or members (in which regard SINDESENA submitted a complaint to the Ministry of Labour and an agreement was reached that established the criteria for granting such leave).

Third case: ASINTRAF

1. 257. The CUT alleges that, since 8 March 2012, the date on which ASINTRAF was established, the hospital has threatened not to renew the contracts of union members, has delayed paying salaries and has begun baseless disciplinary proceedings against union leaders. The complainant organization states that while the organization existed, it managed to recruit approximately 240 members who worked for the institution, including those who worked as part of the Associated Labour Cooperative (CTA), and as a consequence of the anti-union harassment and persecution, approximately 50 members resigned, many of them so that they would be able to continue working at the institution.
2. 258. The complainant organization states that on 19 June 2012, ASINTRAF presented a list of claims to the Ministry of Labour and the hospital, and that when the hospital refused to negotiate, ASINTRAF asked the Ministry of Labour to convene an arbitration tribunal to resolve the conflict. According to the complainant organization, despite the fact that ASINTRAF has submitted the name of the designated arbitrator, it is still waiting for progress to be made. The CUT states that as the collective conflict has not been resolved, special trade union immunity against unfair dismissal remains in force for workers affiliated to ASINTRAF, and as it is prohibited to dismiss unionized workers, the termination by the hospital of the employment of three union members implies anti-union discrimination. The first case concerns Ms Yolanda Cárdenas, a prominent union leader in ASINTRAF who worked in the hospital for almost four years as an auxiliary nurse in the radiology department and who was asked to resign on 26 October 2012 but refused to do so. On 7 November 2012, she was informed that she was being dismissed, and at the same time, ASINTRAF received the resignation of three members who also worked in the radiology department and who continue to work in the hospital.
3. 259. The second case concerns Mr Mario Bermúdez, who has worked in hospital admissions on a fixed-term contract that had been renewed without interruption for four years and who was dismissed on 22 November 2012 after joining ASINTRAF and while having special trade union immunity against unfair dismissal. The third is regarding Ms Claudia Patricia Arboleda, whose contract was terminated after joining ASINTRAF. The CUT states that the dismissal of these three leadership figures from within ASINTRAF constitutes a dangerous precedent for the rest of the members, who have expressed their fear of losing their jobs. It also highlighted the case of another member, Mr Daniel Andrés Sánchez, who, having worked at the hospital for eight years, resigned as he could no longer cope with the situation of occupational harassment and anti-union persecution.

B. The Government’s reply

1. 260. In its communications dated 14 May 2015, 14 June 2016, 30 September 2016, 7 March 2018 and 26 September 2018, the Government submitted its observations, as well as observations from the enterprises concerned, in relation to the three cases submitted by the complainant organization.

First case: SINTRAIMTCOL

1. 261. The Government reports that during the period 2013–14, six complaints were filed relating to the violation of the right to freedom of association and refusal of collective bargaining, and investigations into four of them resulted in sanctions. With regard to the alleged pressure exerted by the enterprise to urge unionized workers to give up their membership, the Government reports that the Bolívar territorial directorate of the Ministry of Labour carried out an administrative investigation that led to resolution No. 0077 of 8 February 2013 which penalized the enterprise for violating labour standards relating to anti-union persecution. With regard to trade union leave, the Government explains that one of the leave requests was denied because it had been submitted less than 24 hours before the activity was due to begin (which affected work planning within the enterprise). Concerning the other three cases, the enterprise stated that it would grant the leave as soon as more details had been provided relating to the activity (schedule and purpose of the activity).
2. 262. In addition, the Government reports that SINTRAIMTCOL submitted a complaint on 22 January 2014, but that the investigation was closed when the trade union reported that the members of the union, at an assembly meeting on 6 February 2014 had unanimously voted to dissolve the organization. It also reports that the legal representative of some of the workers from SINTRAIMTCOL submitted an annulment and appeal action against the decision to close the investigation; the decision on that action has yet to be made. In that regard, the Government reports that: (i) the decision to dissolve the organization taken by SINTRAIMTCOL at the assembly meeting held on 6 February 2014 is provided for in article 376 of the Substantive Labour Code; and (ii) while SINTRAIMTCOL alleges that its members were at work at the time of the assembly meeting, thus implying that they could not be in two places at once, there is no proof to support that allegation. Likewise, the Government attaches a letter sent on 10 February 2014 by the chairman of SINTRAIMTCOL to the Bolívar territorial directorate of the Ministry of Labour in which all the disputes and complaints submitted by the trade union against the enterprise were withdrawn, highlighting that at the assembly meeting held on 6 February of that year, the members had freely and independently decided to dissolve and liquidate the trade union. That letter also indicates that, at the aforementioned assembly meeting, the chairman of SINTRAIMTCOL was granted the power and representation to withdraw all legal actions, disputes and complaints that had been filed.
3. 263. Concerning the list of claims presented by SINTRAIMTCOL, the enterprise informs that as an agreement had not been reached between the parties, the trade union organization, on the advice of the CUT representative, withdrew from the negotiations, demanding that an official document concluding the direct settlement phase be signed, which occurred on 18 February 2012. According to the enterprise, several workers affiliated to SINTRAIMTCOL requested that the enterprise terminate their employment contracts by mutual agreement, because they had received better offers of employment. Furthermore, the enterprise states that unionized and non-unionized workers were dismissed for serious misconduct. It states that the ordinary labour courts and/or the court of appeal judge ruled on various disciplinary and dismissal procedures for valid reasons in the favour of the enterprise and that other procedures are awaiting a ruling. The enterprise informs that no collective labour disputes are ongoing with SINTRAIMTCOL as the trade union organization was dissolved and liquidated before the dispute could be resolved by arbitration award, and the only matter pending a ruling by the competent labour judge is the withdrawal of the legal personality and trade union registration.

Second case: SINDESENA

1. 264. The Government reports that SINDESENA filed two complaints against the training institution: the first of them on 12 April 2014 which was withdrawn and archived on 27 November 2014 when an agreement was reached with the training institution (including agreements relating to trade union leave); and the second on 18 June 2014 for alleged non compliance with employment obligations (delays in paying fees and travel expenses for journeys undertaken in 2013 and 2014). With regard to the latter complaint, the Government reports that through resolution No. 3091 of 4 November 2016, the Ministry of Labour decided not to punish the training institution because, from the evidence presented, there was no clear motive on the part of the institution to undermine the development of the trade union organization or its effective operation. The Government also informs that the appeal filed was settled on 6 December 2017, with aforementioned resolution No. 3091 being upheld, which stated that matters relating to the terms of payment of fees and travel expenses should be addressed to the Office of the Public Prosecutor and the Comptroller General of the Nation, the institutions responsible for the control and monitoring of such matters.
2. 265. For its part, the training institution states that: (i) it is a public body that respects the principles of association and collective bargaining; (ii) in 2014 it convened the trade unions to begin the process of discussing the list of claims, and the trade unions unilaterally and before beginning the stage of concluding the points not yet agreed on the list, decided to withdraw from the bargaining process, putting an end to the negotiations on 28 July 2014; (iii) the coordination of the administrative relationship with the trade union organizations is carried out by the general secretary of the training institution and not the director of the enterprise; furthermore, the enterprise has a decentralized management model, and thus the non-compliance of one centre cannot be understood to be non-compliance across the whole training institution; and (iv) with regard to trade union leave and the provision of plane tickets, these matters were already the subject of an appeal in which the Penal Chamber of the Supreme Court of Bogotá, in its ruling dated 6 November 2013, upheld the first instance ruling that stated that the training institution had not violated the trade union rights of SINDESENA.

Third case: ASINTRAF

1. 266. The Government highlights that freedom of association implies the freedom to join or not join a union, and indicates that the complainant organization has not attached any proof that demonstrates that the resignation of the members of ASINTRAF were a result of pressure from the hospital. It also notes that ASINTRAF submitted three complaints against the hospital; in two of the cases the hospital was absolved of guilt, and in the third, despite the fact that in the first instance the hospital was penalized for violating ASINTRAF’s right to organize, that decision was revoked in its entirety.
2. 267. With regard to the hospital’s alleged refusal to negotiate the list of claims, the Government reports that there was no refusal to negotiate and that all the legal stages established in the collective bargaining procedure were met. It states that, although the arbitration tribunal issued an arbitration award on 20 June 2013 that settled the collective dispute, the hospital lodged an appeal against the award in July 2013, and that appeal is currently before the Supreme Court of Justice. The Government also reports that since the complaint was submitted, two collective agreements have been concluded between the hospital and ASINTRAF, one of which was in force from 1 April 2016 to 31 March 2018 and the other of which was signed on 25 April 2018 and will remain in force until 31 March 2020. In those collective agreements, which have been attached by the Government, wage increases and trade union leave were agreed, and the hospital agreed to provide the use of facilities and a financial grant to ASINTRAF to carry out trade union activities and training and to strengthen the trade union organization.
3. 268. Concerning the failure to extend contracts for workers at the hospital, the Government states that, according to article 61(c) of the Substantive Labour Code, the failure to extend a fixed-term contract is not an unfair dismissal but rather the termination of a contract at the end of its agreed term. The Government also refers to ruling No. T-116 of 2009 in which the Constitutional Court highlighted the fact that in fixed-term contracts concluded with employees who participate in trade union activities there is no need to seek legal authorization to terminate such contracts, and thus, in law, the expiry of the agreed fixed-term is not strictly speaking an unfair dismissal. The Government adds that the complainant organization has not provided clear evidence of anti-union persecution and neither has it resorted to the national justice system with regard to the alleged irregularities in the failure to extend the fixed-term contracts of some of the workers.

C. The Committee’s conclusions

1. 269. The Committee notes that this case concerns several allegations of anti-union acts, including anti-union persecution and discrimination, dismissals and hindering collective bargaining, in relation to three trade union organizations affiliated to the CUT: SINTRAIMTCOL, SINDESENA and ASINTRAF.
2. 270. With regard to SINTRAIMTCOL, the Committee observes that the allegations relate to acts of anti-union discrimination carried out by the enterprise since the trade union was founded on 30 August 2011 until the date of its dissolution on 6 February 2014, including acts of persecution and workplace harassment against trade unionists to encourage them to resign from the union and cause the union to be dissolved. The Committee notes that, according to information from the complainant and the Government concerning those acts, SINTRAIMTCOL filed a criminal complaint on 14 September 2012 (in which regard no progress has yet been made) as well as filing three complaints with the Ministry of Labour (on 8 February 2013 the enterprise received a fine for violating the right of association equivalent to 80 times the statutory minimum monthly wage; on 4 March 2013 the enterprise received a fine from the Ministry of Labour equivalent to 50 times the statutory minimum monthly wage for not holding the final bargaining meeting in order to convene an arbitration tribunal; and on 10 January 2014, the enterprise received another fine equivalent to 700 times the statutory minimum monthly wage for the same reason). The Committee notes the complainant’s allegation that while the Ministry of Labour penalized the enterprise with considerable fines, these fines were not enough to stop the enterprise from committing acts of anti-union harassment, persecution and discrimination and that: (i) the enterprise dismissed three trade unionists (Mr Marden Perea Martelo, Mr Edwin Isaac Villadiego Martínez and Mr José Augusto Bustamante del Toro); (ii) the chairman of the trade union and one of the union leaders left at the end of December 2013 after receiving money; and (iii) on 7 February 2014, several trade unionists were pressured into signing agreements to terminate their contracts.
3. 271. In that regard, the Committee takes note that the Government states that: (i) in some cases the dismissals were by mutual agreement and in the cases where the employment was terminated by the enterprise, the dismissals were fair; (ii) the Ministry of Labour decided to archive a complaint submitted by SINTRAIMTCOL on 22 January 2014, when the trade union reported that at the general assembly held on 6 February 2014 the unanimous decision had been made to dissolve and liquidate the trade union; and (iii) the representative of some SINTRAIMTCOL workers submitted an annulment and appeal action against the decision to archive the investigation, and a decision on that has yet to be made.
4. 272. The Committee also takes note of the fact that: (i) while the CUT maintains that the members of SINTRAIMTCOL were working at the time of the supposed assembly meeting and that they therefore could not have attended it, the Government has attached a copy of a letter sent by the chairman of SINTRAIMTCOL on 10 February 2014 to the Bolívar territorial directorate of the Ministry of Labour in which all the disputes and complaints submitted by the trade union against the enterprise were withdrawn, highlighting that at the assembly meeting held on 6 February of that year, the members had freely and independently decided to dissolve and liquidate the trade union; (ii) the CUT notes that SINTRAIMTCOL filed complaints relating to the dissolution and liquidation of the trade union with the Ministry of Labour, the Ombudsman’s office and the Office of the Public Prosecutor; and (iii) the Government states that as SINTRAIMTCOL has dissolved and liquidated, the only matter awaiting a ruling by the competent labour judge is the withdrawal of the legal personality and trade union registration.
5. 273. The Committee notes with concern that no progress has been made so far regarding: (i) the criminal complaint filed by SINTRAIMTCOL on 14 September 2012 relating to the events contained in the complaint; and (ii) the complaints that, according to the CUT, SINTRAIMTCOL filed with the Ministry of Labour, the Ombudsman’s office and the Office of the Public Prosecutor regarding its dissolution. The Committee notes that it is clear from the allegations made by the complainant organization and the Government’s observations that, while some complaints made by SINTRAIMTCOL have led to fines being issued for violating the freedom of association, some complaints are still pending despite the lengthy period of time that had passed. The Committee also notes that the complainant organization alleges that the sanctions that were imposed have not been dissuasive and that the anti-union practices have continued, leading to the fraudulent alleged self-dissolution of the organization. In this regard, 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 Compilation of decisions of the Committee on Freedom of Association, sixth edition (2018), para 1159].
6. 274. Recalling that the Committee has on several occasions requested that the Government take the necessary measures to expedite the resolution of complaints of anti-union discrimination [see 374th Report, March 2015, Case No. 2946, para. 251; Case No. 2960, para. 267; and Case No. 3061], and in particular taking into account that the supposed self-dissolution of SINTRAIMTCOL took place shortly after the enterprise was ruled as having carried out a series of anti-union acts, the Committee requests the Government to take the necessary measures to ensure that all the pending disputes and complaints submitted by SINTRAIMTCOL to the Ministry of Labour, the Ombudsman’s office and the Office of the Public Prosecutor are resolved as quickly as possible. It also asks the Government to provide information regarding the status of the procedure to withdraw the legal personality and trade union registration of SINTRAIMTCOL. Furthermore, the Committee requests the complainant organization to provide further information on the complaints filed in relation to the dissolution and liquidation of the trade union and to indicate whether legal action has been taken regarding the dismissal of the trade unionists Mr Marden Perea Martelo, Mr Edwin Isaac Villadiego Martínez and Mr José Augusto Bustamante del Toro, and if so, to provide information in that regard.
7. 275. Turning to the case relating to SINDESENA, the Committee notes that the allegations refer to the fact that the new national director of the public training institution (who took office in March 2013) was unaware of the appeals lodged by the trade union leaders, did not grant trade union leave and did not comply with several points of an agreement signed in June 2013 (including the provision of plane tickets), which meant that teachers and students were unable to hold protests to express their displeasure regarding various measures put in place by the institution to the detriment of worker and student welfare.
8. 276. In this regard, the Committee takes note that, according to the Government: (i) the allegations relating to trade union leave and the provision of plane tickets were the subject of an appeal in which the Penal Chamber of the Supreme Court of Bogotá handed down a sentence on 6 November 2013, upholding the first instance ruling that stated that the training institution had not violated the trade union rights of SINDESENA; (ii) SINDESENA filed two complaints with the Ministry of Labour, the first on 12 April 2014 which was withdrawn and archived on 27 November 2014 after an agreement was reached with the training institution (including agreements relating to trade union leave); and the second on 18 June 2014 for alleged non-compliance with labour obligations (delays in paying fees and travel allowances for journeys in 2013 and 2014) which was dismissed by the Ministry because there was no proof that the institution was seeking to undermine the development of the trade union organization or its effective operation; and (iii) in 2014, subsequent to lodging the present complaint, the training institution convened the trade unions to begin the process of discussing the list of claims, and the trade unions unilaterally and before beginning the stage of concluding the points not yet agreed on the list, decided to withdraw from the bargaining process, putting an end to the negotiations on 28 July 2014.
9. 277. The Committee notes that, while the complainant organization and the Government have not provided up-to-date information, according to information that is publicly available, on 22 September 2015, the training institution and SINDESENA signed a framework workplace agreement in which various points were agreed, including with regard to trade union leave, plane tickets and investigations into trade union persecution. The Committee also notes that on 19 October 2016, a new agreement was signed in which the parties committed to developing the 2015 framework workplace agreement and to resolving labour and academic problems, which had been occurring since 13 September 2016. The Committee requests the Government and the complainant organization to provide copies of those agreements. In light of the above, unless the complainant organization provides information to support the allegations relating to SINDESENA, the Committee will not pursue its examination of the allegations any further.
10. 278. Regarding the case relating to ASINTRAF, the Committee takes note that according to the allegations: (i) as a result of the anti-union harassment and persecution by the hospital, approximately 50 members resigned from the trade union (of a total of 240 members); and (ii) following the hospital’s refusal to negotiate a list of claims, on 19 June 2012 ASINTRAF asked the Ministry of Labour to convene an arbitration tribunal to resolve the conflict and, despite the collective dispute not being resolved and the special trade union immunity against unfair dismissal of the workers affiliated to ASINTRAF remaining in force, the hospital dismissed three trade unionists: Ms Yolanda Cárdenas, who led a protest and whose contract had been renewed for four years; Mr Mario Bermúdez, whose contract had been renewed for four years and who was dismissed after joining ASINTRAF; and Ms Claudia Patricia Arboleda, who after working for more than two years on extended fixed-term contracts, had her contract terminated after joining ASINTRAF.
11. 279. In this regard, the Committee takes note that, according to the Government: (i) freedom of association is both the freedom to be a member and the freedom not to be a member, and the complainant organization has not demonstrated that the resignations were as a result of the pressure applied by the hospital; (ii) in 2013 and 2014 ASINTRAF submitted three complaints against the hospital to the Ministry of Labour; in one case, the Ministry completely withdrew a resolution that punished the hospital for violating the right to association of ASINTRAF members, and in the other two cases, it ruled to acquit the hospital; (iii) the employment contracts were terminated as the planned contract period had come to an end, and despite there being a collective dispute, the right to organize was not violated given that special trade union immunity against unfair dismissal means that workers may not be dismissed without proven just cause and, in this case, the decision not to extend the fixed-term employment contracts does not constitute unjustified dismissal; and (iv) the complainant organization has not provided proof of anti-union persecution, or that it sought justice in the courts in relation to the alleged irregularities when the fixed-term contracts of the hospital workers were not renewed.
12. 280. Recalling that no person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present [see Compilation, op. cit., para. 1074], the Committee asks the Government to carry out an inquiry into the reasons behind the failure to renew the contracts of Ms Yolanda Cárdenas, Mr Mario Bermúdez and Ms Claudia Patricia Arboleda and to keep the Committee informed in that regard. Furthermore, the Committee requests the complainant organization to explain why it has not initiated legal action regarding the decision not to extend the contracts in question.
13. 281. Concerning collective bargaining between the hospital and ASINTRAF, the Committee takes note that, according to the Government, while an appeal for annulment is before the Supreme Court of Justice with respect to the 2013 list of claims, since the present complaint was submitted, the hospital and ASINTRAF have concluded two collective agreements, one of which was in force from 1 April 2016 to 31 March 2018 and the other of which was signed on 25 April 2018 and will remain in force until 31 March 2020, in which wage increases and trade union leave were agreed and the hospital agreed to provide the use of facilities and a financial grant to ASINTRAF to carry out trade union activities and training and to strengthen the trade union organization. The Committee notes these collective agreements with interest, as they seem to indicate that the hospital’s alleged harassment, anti-union persecution and refusal to negotiate with ASINTRAF may have been overcome.

The Committee’s recommendations

1. 282. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures to ensure that all the pending disputes and complaints presented by SINTRAIMTCOL to the Ministry of Labour, the Ombudsman’s office and the Office of the Public Prosecutor are resolved as soon as possible. The Committee also requests the Government to provide information regarding the status of the process of withdrawing the legal personality and trade union registration of SINTRAIMTCOL. Furthermore, the Committee asks the complainant organization to provide further information on the complaints filed in relation to the dissolution and liquidation of the trade union and to indicate whether legal action has been taken with regard to the dismissals of the trade union members Mr Marden Perea Martelo, Mr Edwin Isaac Villadiego Martínez and Mr José Augusto Bustamante del Toro, and if so, to provide information in that regard.
   • (b) The Committee requests the Government and the complainant organization to provide copies of the agreements reached on 22 September 2015 and 19 October 2016 with SINDESENA.
   • (c) The Committee requests the Government to conduct an inquiry into why the contracts of Ms Yolanda Cárdenas, Mr Mario Bermúdez and Ms Claudia Patricia Arboleda were not renewed and to keep the Committee informed in that regard. Furthermore, the Committee requests the complainant organization to explain why it has not taken legal action regarding the decision not to extend the contracts in question.