Rapport définitif - Rapport No. 241, Novembre 1985

Cas no 1291 (Colombie) - Date de la plainte: 05-JUIN -84 - Clos

1. 249. The Committee examined this case at its meeting in November 1984, when it submitted an interim report to the Governing Body. (See 236th Report, paras. 686 to 697, approved by the Governing Body at its 228th Session (November 1984).)
2. 250. Since then the CSTC furnished further information in support of its complaint in a communication dated 23 April 1985. The Government sent its observations on the outstanding allegations in communications of 29 May, 10 July and 13 August 1985.
3. 251. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087), and the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. Previous examination of the case

1. 252. The outstanding allegation in this case concerns the dismissal of 13 unionised workers from the enterprise "Industréas Alimenticias Noël SA". According to the complainant, this measure, which occurred when a list of grievances had been submitted to the employer, was designed to weaken the works union. The measure is also said to be contrary to section 25 of Legislative Decree No. 2351 which states that employers may not dismiss workers when a list of grievances has been submitted.
2. 253. At its meeting in November 1984, the Committee, noting that the Government had not furnished a detailed reply to this allegation, requested the Government to send its observations on the matter.

B. Subsequent developments

1. 254. In response to a request from the Committee, the complainant organisation supplied the names of 15 dismissed workers on 23 April 1985.
2. 255. In its communication of 29 May 1985, the Government states that the Labour Code permits the unilateral termination of the contract of employment, without the grounds being stated but with compensation being paid for the prejudice suffered. The parties are free to follow this procedure at any time without the administrative labour authority having the possibility of demanding explanations as to the grounds for the termination. Dismissed workers are entitled to appeal to the labour courts for the restitution of their rights, which is what happened in the present case.
3. 256. In its communications of 10 July and 13 August 1985, the Government provides information on progress in the court proceedings. Thirteen workers lodged appeals with the social chambers of the Medellén courts. Rulings were handed down in three cases, in two of which the employer was acquitted.
4. 257. The Government specifies that the contracts of employment were broken unilaterally by the employer on the basis of section 64 of the Labour Code, and of section 8 of Legislative Decree No. 2351 of 1965. This provision enables the parties to terminate the contract without stating the grounds for so doing. However it goes on to provide that the employer must pay the worker compensation corresponding to the pay he would have received during the rest of his contract or, if the contract was of unlimited duration, 45 days' pay plus supplementary benefits varying according to the worker's length of service. It is further provided that where a worker who has completed ten years' continuous service has been dismissed without justification, the labour court may, at the worker's request, order his reinstatement under the same conditions of employment and with payment of his salary or of compensation for loss of earnings. The Government maintains that Colombian labour law embodies the principle of autonomy of the parties in unilaterally terminating a contract of employment, requiring however that the party responsible for breaking the contract should make reparation. The Government states that if an employer breaks a contract of employment because he considers that a worker has not fulfilled his contract - and proves this before a court - this should not be construed as infringing trade union rights.
5. 258. The Government also states that it is not the place of the administrative labour authority to intervene in cases before the courts. Nor is the Ministry empowered by law to determine the grounds on which a contract of employment was terminated, this being a function entrusted by the Labour Code to the labour courts. According to the Government, the rights of employers and of workers are safeguarded perfectly by the law since the latter gives both parties the possibility of unilaterally terminating a contract of employment where they consider that this has not been fulfilled and enables them to take appropriate legal action if they believe their rights have been infringed. In the Government's opinion, the law may not forbid employers or workers to terminate a contract of employment unilaterally since this would mean infringing the personal freedoms embodied in the national Constitution. The dismissals which occurred at the "Industréas Alimenticias Noël SA" enterprise are therefore normal lawful occurrences which, in accordance with the law, may be brought before the ordinary labour courts if they are considered to be illegal and/or unjust.

C. The Committee's conclusions

1. 259. The Committee has taken note of the explanations furnished by the Government concerning the dismissals which took place in "Industréas Alimenticias Noël SA". In particular it notes that, in accordance with the Colombian Labour Code, employers may unilaterally terminate a contract of employment, even without justification, by paying the workers concerned the compensation provided for by law.
2. 260. In this connection the Committee must point out to the Government that it does not appear that sufficient protection against acts of anti-union discrimination - as set out in Convention No. 98 - is accorded by legislation which, in practice, enables employers, on condition they pay the compensation prescribed by law in all cases of unjustified dismissal, to get rid of any worker, when the true reason for dismissal is his trade union membership or activity. (See, for example, 211th Report, Case No. 1053 (Dominican Republic), para. 163.)
3. 261. In the present case, the Committee must point out that the dismissals of members of the Noël SA works union took place at a time when the union had submitted a list of grievances to the employer on which the latter refused to negotiate. The Committee is of the view that in such a case the authorities should recognise that a presumption of acts of anti-union discrimination is involved, should rapidly undertake the necessary inquiries and, where necessary, take measures to avoid the recurrence of acts of this kind. The Committee therefore requests the Government to consider the adoption of texts providing effective protection against acts of anti-union discrimination, both in law and in practice, in accordance with Article 1 of Convention No. 98, ratified by Colombia. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case.

The Committee's recommendations

1. 262. In these circumstances, the Committee requests the Governing Body to approve the present report and, in particular, the following conclusions:
   • a) The Committee points out to the Government that it does not appear that sufficient protection against acts of anti-union discrimination is accorded by legislation which, in practice, enables employers, on condition they pay the compensation prescribed by law for cases of unjustified dismissal, to get rid of any worker when the true reason for dismissal is his trade union membership or activity.
   • b) The Committee is of the view that, in cases such as that of the Noël SA enterprise, the authorities should recognise that a presumption of anti-union discrimination is involved, should rapidly undertake the necessary inquiries and should, if necessary, adopt measures to avoid a recurrence of dismissals of this kind.
   • c) The Committee requests the Government to consider the adoption of texts providing effective protection against acts of anti-union discrimination both in law and in practice. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case.