Rapport définitif - Rapport No. 254, Mars 1988

Cas no 1422 (Colombie) - Date de la plainte: 21-AOÛT -87 - Clos

1. 87. The complaint is contained in two communications from the Workers' Union of the General CEAT Company of Colombia, S.A., dated 21 August and 21 September 1987. The Government supplied its observations in communications dated 21 October 1987 and 26 January 1988.
2. 88. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Workers' Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

1. 89. In its communication of 21 August 1987, the Workers' Union of the General CEAT Company of Colombia alleges that the undertaking infringed trade union rights on 11 August 1987 by dismissing Luis Antonio García and Carlos Arturo Ceballos, the President and General Secretary of the Union, without complying with the legal procedure for the dismissal of workers enjoying trade union immunity; it is also alleged that the undertaking disregarded the officials' entitlement to time off for trade union purposes and failed to recognise the Workers' Central Organisation (CUT) to which the Union is affiliated at the national and regional levels.
2. 90. The communication states that the General CEAT undertaking of Colombia has, by these acts, violated the trade union rights embodied in the Colombian Labour Code, specifically: section 353 which guarantees the right of employers and workers to defend their interests by freely forming occupational associations or unions which, in turn, have the right to join together or to form federations; section 405 in respect of trade union immunity, which establishes the guarantees enjoyed by certain workers who may not be dismissed without just cause attested to by a labour court; and section 406 which lists the workers who may be covered by such guarantees.
3. 91. The complainant's communication adds that with these dismissals, the undertaking has infringed article 19 of the Universal Declaration of Human Rights in respect of freedom of opinion and expression, Article 1(1) and (2) a) and b) of Convention No. 98 and Article 1 of Convention No. 135. The complainant adds to its communication the letters sent to Luis Antonio García and Carlos Arturo Ceballos informing them of their dismissal and a copy of the minutes of the meeting of the joint committee of the undertaking and of the Union, held on 11 August 1987, and at which the parties were unable to reach an agreement on the dismissals.
4. 92. In its other communication, dated 21 September 1987, the complainant states that the Departmental Division of Labour and Social Security of the town of Cali was requested to undertake an administrative investigation in respect of the General CEAT undertaking of Colombia, but that at the time of writing there had not been a favourable decision regarding the reinstatement of Luis Antonio García and Carlos Arturo Ceballos.

B. The Government's reply

1. 93. In its communication of 21 October 1987 the Government states that according to the chief of the "Sección de Colectivos" of the Valle Departmental Division of Labour and Social Security, the situation of Mr. Luis Antonio García and Mr. Carlos Arturo Ceballos viz-à-vis the General CEAT undertaking of Colombia involves two different aspects: their dismissal as workers and their subsequent removal from trade union office.
2. 94. Firstly, as regards dismissal from the undertaking, it must be made clear that a dismissed worker is entitled to bring an action for reinstatement before the ordinary labour courts (section 118 of the Code on the procedure to be followed in labour matters, as amended by section 6 of Decree 204 of 1957); the dismissed worker may also, if he deems fit, bring a charge before a criminal court for trade union persecution or infringement of the right of association. Mr. García and Mr. Ceballos, like all citizens, are fully entitled by law to bring an action in a labour court for the restoration of their rights if they consider, and can prove before such a court, that these rights have been infringed; the law also entitles them to bring charges before a criminal court seeking the sanctioning of the undertaking if it is proved that there has been infringement of the relevant provisions. It must be fully realised that under the laws in force only the labour courts are competent to deal with and give rulings on cases concerning trade union immunity and that consequently the Ministry of Labour and Social Security is absolutely prohibited from giving a ruling on such matters; such intervention in matters that come within the legal jurisdiction of another branch of public authority would amount to a misuse of power. Similarly, the Ministry is not empowered to decide whether a party (the undertaking) committed the offence of infringing freedom of association or the right of association since such matters come with the jurisdiction of the criminal courts.
3. 95. The Government stresses in its communication that it is up to the person concerned both to bring an action for reinstatement before a labour court and, if deemed appropriate, to bring a charge before a criminal court for violation of the section of the Penal Code which prohibits attacks on the right of association; no provision is made for this to be dealt with by court officials on their own initiative.
4. 96. Secondly, the Government goes on to say that the investigation being carried out by the Valle Departmental Division for Labour and Social Security is a consequence of the objection made to the election of the new executive of the Workers' Union of the General CEAT Company of Colombia, S.A., which took place at the general assembly of 16 August 1987. The general assembly of the Union's members had been convened on that date and, in the course of the meeting, when the agenda was being submitted for consideration, one of the members requested that it be modified to include the election of a new executive. This proposal was approved. In the course of the meeting three other members of the Union's executive (i.e. not Mr. García or Mr. Ceballos) submitted their resignations which, as stated in the minutes of the general assembly, meant that a new executive had to be elected, as was done at the unanimous and free decision of the supreme decision-making body of the Union.
5. 97. Nevertheless, former worker Ceballos lodged an objection to the election of the new executive before the Valle Departmental Division. A decision was reached on this objection in ruling No. 1029, dated 16 September 1987, in which the objection was rejected as it had been proved that the Union's general assembly and the election of the new executive had taken place in accordance with the law and had involved no irregularities whatsoever. This ruling was appealed against and the matter was settled in a further ruling, No. 1045 of 29 September 1987, which fully upheld the earlier one. The Government's communication adds that it is perfectly clear that there was at no time negligence on the part of the Ministry of Labour and Social Security in its decision concerning the matter brought before it by Mr. Ceballos.
6. 98. The Government's communication states that the complainant organisation cannot maintain that trade union rights are not guaranteed and that it should be noted, as regards trade union immunity, that although Mr. García and Mr. Ceballos were dismissed from the General CEAT undertaking of Colombia, without the requisite authorisation of the labour court, they are entitled to bring an action for reinstatement before a labour court in accordance with section 118 of the Code on the procedure to be followed in labour matters; the Ministry of Labour and Social Security is not empowered to order the undertaking to reinstate the dismissed persons. With regard to the right of association, if the persons in question consider that the undertaking has infringed this right in dismissing them, they are entitled to bring charges before the competent criminal court since it is not within the jurisdiction of the Ministry to give a ruling on the matter.
7. 99. As regards membership of the Union's executive, the Substantive Labour Code provides that this body can be made up of whatever number of members that are freely elected, but that only five principal members and five deputy members enjoy trade union immunity (section 406). The union's general assembly is empowered both to elect members of the executive and to remove them from office when it deems this to be appropriate. Although Mr. García and Mr. Ceballos did not cease to be union members when they were dismissed from the undertaking, they could be removed from their position on the executive by the vote of the general assembly of the trade union organisation. Since Mr. Ceballos was not in agreement with his removal from the executive, he protested to the Ministry of Labour and Social Security against the election of the new executive; the Ministry decided not to entertain his protest since there had been no irregularities in the said election.
8. 100. Finally, the Government's communication states that no complaint was received concerning refusal to allow time off for trade union activities and that it does not see how it can be maintained that there was failure to recognise the Workers' Central Organisation (CUT), a trade union organisation whose legal personality and representativity are beyond doubt.
9. 101. In its communication of 26 January 1988, the Government states that it must stress the exclusive role of the labour courts in deciding whether or not the decision to dismiss Messrs. Garcia and Ceballos was in conformity with the law. Likewise, it is for the criminal courts to decide, if served with a claim by one of the persons affected, whether the undertaking acted in violation of the right to associate when it dismissed these above-mentioned persons.

C. The Committee's conclusions

1. 102. The Committee notes the complainants' allegations, in particular the dismissal of Mr. Luis Antonio García and Mr. Carlos Arturo Ceballos, trade union leaders from the General CEAT undertaking of Colombia, refusal to allow time off for trade union activities and failure to recognise the Workers' Central Organisation (CUT) to which the said Union is affiliated.
2. 103. The Committee observes that trade union leaders Mr. García and Mr. Ceballos were dismissed without the undertaking paying heed to the legal safeguards (section 405 of the Substantive Labour Code) afforded to workers enjoying trade union immunity, as was the case of the above-mentioned leaders; in fact the employer had not requested the authorisation from the labour court for the dismissals. These were therefore an infringement of the trade union freedoms of these workers.
3. 104. The Committee also notes the information provided by the Government, especially regarding the right conferred by law to bring action for reinstatement when dismissal is considered to be unlawful or unjust, it being up to the persons concerned to bring such charges before a labour court. In the present case recourse was not had to such action.
4. 105. Furthermore, as regards the renewal of the Union's executive by its general assembly, and the fact that Mr. García and Mr. Ceballos were not elected after their dismissal, the Committee notes that this was the unanimous and free decision of the members attending the general assembly and that the election was investigated by the administrative authority (following the protest lodged by Mr. Ceballos) which ruled that the meeting and the election had been held in accordance with the law and involved no irregularities whatsoever. In any case the Committee observes that apparently there is no obstacle in the law in force to prevent Mr. García and Mr. Ceballos from continuing to be trade union leaders even after their dismissal from the undertaking.
5. 106. Lastly, the Committee notes that the Government has not received any complaint concerning the refusal to allow time off for trade union activities, or concerning the alleged failure to recognise the legal status of the CUT which, according to the Government, enjoys legal personality and representative status.

The Committee's recommendations

1. 107. In the light of its foregoing conclusions, the Committee invites the Governing Body, in view of all the information before it, to decide that this case does not call for further examination.