Rapport intérimaire - Rapport No. 297, Mars 1995

Cas no 1787 (Colombie) - Date de la plainte: 28-JUIN -94 - En suivi

1. 465. The complaint in this case is contained in a communication dated 28 June1994 from the International Confederation of Free Trade Unions (ICFTU). In communications of 20 October and 29 November 1994 the ICFTU sent new allegations and supplementary information. The Government sent partial observations in communications of 6 October 1994 and 26 January 1995.
2. 466. Colombia has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 467. In its communication of 28 June 1994 the International Confederation of Free Trade Unions alleges that trade union leaders, Jaime Eliecer Ojeda (President of the Public Works Trade Union - SINTRAMINOBRAS) and Alfonso Noguera (President of the Trade Union of Municipal Employees of the Town of Ocaña) were murdered on 23 May and 11 April 1994, respectively.
2. 468. The complainant organization adds that on 28 March 1993 the workers of the Textilia Ltda. enterprise formed the Trade Union of Workers of Textilia Ltda. (SINTRATEXTILIA), that the following day the enterprise dismissed the President, the Vice-President, the Treasurer, the Controller, two deputies and another founding member, and that it threatened to dismiss workers who were members unless they left the union. The complainant organization adds that the enterprise committed various anti-trade union acts, that it specifically promoted the signing of a collective agreement giving a wage increase to workers who resigned from the union, and that it continued dismissing trade union leaders and members between July and November 1993 (a total of 44 people were dismissed). It states that in December 1993 the Ministry of Labour fined the enterprise 4 million pesos for violating the right of freedom of association. Finally, it adds that, following a count of its members requested by the enterprise, the local labour authority determined that SINTRATEXTILIA had no membership at Textilia Ltda. (only four members of the union remained employed) and that, on the basis of that ruling, the enterprise was requesting cancellation of the trade union's registration.
3. 469. Furthermore, the complainant organization states that in April 1992, when direct negotiations over a list of demands submitted to the Sucesores de José Jesús Restrepo y Compañía SA enterprise ended without managing to reach an agreement, the minority trade union SINTRASUCESORES requested the Ministry of Labour to convene an arbitration court. The complainant organization adds that this request was denied, but that in February 1993 the Minister of Labour eventually ordered that the court convene. The complainant organization states that the enterprise engaged in various stalling manoeuvres, but that the court was finally set up in August 1993 and handed down a decision in October 1993 to the effect that it was not qualified to rule on the substance of the list of demands. Finally, the complainant organization reports that the High Court of Bogotá examined the case and ruled in favour of the workers in January 1994.
4. 470. In its communications of 20 October and 29 November 1994 the ICFTU alleges various acts of violence against trade union leaders and members. Specifically, the complainant organization states that:
   • - Francisco Ramírez Cuéllar (President of the Trade Union of Workers of the Mineralco SA enterprise) received death threats and a number of attempts were made on his life between July 1993 and February 1994;
   • - Luís David Rodríguez Pérez (former leader of the National Trade Union of Workers of Incora - SINTRADIN) was detained for several hours by the armed forces on 13 and 19 July 1994, and in 1991 his home was raided by the army and by the police;
   • - Hernando Cuadros (President of the Tibú branch of the Workers' Trade Union - USO) was murdered on 11 October 1994, and on the same occasion an attempt was made on the lives of the trade unionists Edgar Riaño, Darío Lotero, Luis Hernández and Monerge Sánchez;
   • - Bertina Calderón (Vice-President of the Single Confederation of Workers of Colombia - CUT), Daniel Rico (President of the Federation of Oil Workers - FEDEPETROL), Domingo Tovar (member of the National Executive of the CUT) and Victor Ramírez (President of the Transport Workers' Union - SINTRASON) received death threats on 11 October 1994;
   • - the members of the Executive Committee of the Single Agricultural Trade Union Federation (FENSUAGRO) are being threatened and harassed by people presumed to be members of the state security forces. The complainant organization states that the FENSUAGRO headquarters was broken into by armed elements on 29 September 1994, that the telephones of the headquarters and of members' homes were apparently tapped and that a watch was kept by prowlers on the home of the Federation's chairman, Luis Carlos Acero, on 29 September 1994;
   • - during a raid by armed elements on the headquarters of the Single Federation of Workers of Antioquía (FUTRAN) on 26 September 1994, Hugo Zapata (leader of the Frontino Gold Mines Trade Union) was murdered, and Carlos Posada (leader of the Trade Union of Public Enterprises of Medellín) was seriously injured. (The Committee proposes to examine this allegation under Case No. 1761.)

B. The Government's reply

1. 471. In its communications of 6 October 1994 and 26 January 1995, the Government states that in November 1993 the labour authorities fined the Textilia Ltda. enterprise 4,896,600 pesos (the equivalent of 60 minimum wages) for having carried out acts which violated the right of freedom of association as defined in section 39(b) of Act No. 50 of 1990 (this section stipulates that "the following are considered as acts committed by the employer which violate the right of association: ... (b) dismissing, suspending or modifying the working conditions of workers because of activities aimed at founding trade union organizations; ..."). The Government reports that the enterprise has appealed against this measure to the Inspection and Monitoring Subdirectorate of the Ministry of Labour, which has not yet issued a ruling on the question.
2. 472. As regards the allegation concerning the Sucesores de José Jésus Restrepo enterprise, the Government states that in May 1992 the SINTRASUCESORES trade union asked the Ministry of Labour to convene an arbitration court, but that the request was denied because the union's decision had not been taken by the absolute majority of the enterprise's workers. The Government adds that after various appeals had been lodged, the Minister of Labour ordered in February 1993 that the arbitration court be established, but that the court was only set up in September 1993 because several designated arbitrators turned down the appointment. On 20 October 1993 this court declared that it was not qualified to rule on the collective dispute, but after various appeals it finally handed down a decision on 31 January 1994. Appeals were lodged by both parties against the decision resulting in the High Court decision not to uphold the lower court's judgement. The Government states that, once the collective dispute was over, the enterprise's workers joined the SINALTRAINAL and initiated a new collective dispute; as this could not be solved through the legal procedures for negotiation, the trade union requested that an arbitration court be convened. The Government reports that the Ministry of Labour eventually denied the request because the decision to ask the court to be convened had not been taken in accordance with the legal requirements. The trade union organization has appealed against this decision.
3. 473. Finally, the Government reports that judicial investigations into the deaths of Messrs. Eliecer Ojeda and Alfonso Noguera are under way.

C. The Committee's conclusions

1. 474. The Committee observes that the allegations refer to murders and other acts of violence committed against trade union leaders and members, as well as dismissals and other anti-trade union acts at two enterprises.
2. 475. As regards the alleged murder of union leaders Jaime Eliecer Ojeda (President of the Public Works Trade Union - SINTRAMINOBRAS) and Alfonso Noguera (President of the Trade Union of Municipal Employees of Ocaña), the Committee notes the Government's statement that judicial investigations are under way. On the other hand, the Committee observes that the Government has not communicated its observations concerning the following allegations of acts of violence committed against trade union leaders and members: the murder of Hernando Cuadros (President of the Tibú branch of the Workers' Trade Union - USO); the attempted murder of Edgar Riaño, Darío Lotero, Luis Hernández and Monerge Sánchez; the death threats made against Bertina Calderón (Vice-President of the CUT), Daniel Rico (President of the Federation of Oil Workers - FEDEPETROL), Domingo Tovar (a member of the CUT's National Executive) and Victor Ramírez (President of the Transport Workers' Union - SINTRASON); death threats against, and attempts on the life of, Franciso Ramírez Cuéllar (President of the Trade Union of Workers of the Mineralco SA enterprise); the temporary detention on various occasions of Luís David Rodríguez Pérez (former leader of the National Trade Union of Workers of Incora - SINTRADIN) by the army, and the raiding of his home; and death threats made against the members of the Executive Committee of the Single Agricultural Trade Union Federation (FENSUAGRO), the raiding of the Federation's headquarters, the tapping of telephones at the union's headquarters and its members' homes and the fact that the Federation's President, Mr. Luis Carlos Acero, was followed by armed persons.
3. 476. In general, as regards all these allegations of murder, attempted murder, death threats, raiding of trade union headquarters and homes, police persecution and detention of trade union leaders and members, the Committee deplores the numerous acts of violence which characterize trade union life in the country and expresses its concern that they have involved a large number of trade union leaders and members. The Committee draws the attention of the Government to the fact that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists; it is for governments to ensure that this principle is respected (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 70).
4. 477. Furthermore, noting that in previous cases judicial investigations were unable to identify the guilty parties in the case of acts of violence similar to those alleged in the complaint, the Committee expresses the hope that in this case the facts will be clarified and the guilty parties punished. The Committee reminds the Government that "the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, which is extremely damaging to the exercise of trade union rights" (see 292nd Report, Cases No. 1434 and 1477 (Colombia), para. 255)).
5. 478. In these circumstances, the Committee urges the Government to take immediately the necessary steps for judicial investigations to begin immediately in order to elucidate all the alleged murders, threats and other acts of violence, establish who was responsible for them and punish the guilty parties. The Committee requests the Government to keep it informed in this respect, and of the outcome of the judicial proceedings under way. Furthermore, the Committee requests the Government to take steps to provide protection for all the trade union leaders and members who have received threats.
6. 479. As regards the dispute at Textilia Ltda., the Committee observes that the complainant organization alleges that: (1) after the SINTRATEXTILIA trade union was formed, the enterprise dismissed nine trade union leaders (including the President, the Vice-President, and the Secretary-General of the trade union) and 35 trade unionists, threatened to dismiss workers and offered wage increases to those who left the union; and (2) following the enterprise's request for a trade union membership count, the labour authorities determined that the trade union organization had insufficient membership at Textilia Ltda. and that, on the basis of that ruling, the enterprise is requesting that the trade union's registration be cancelled. In this respect, the Committee notes the Government's indications that the labour authorities imposed a fine on the enterprise (the equivalent of 60 minimum wages) for having carried out the above-mentioned "acts which violate the right of freedom of association".
7. 480. The Committee observes that the alleged dismissals took place after the decision was taken to form a trade union at the enterprise, and that they continued to take place throughout 1993. In these circumstances, in view of the anti-trade union nature of the dismissals, the Committee draws the attention of the Government to the fact that "no person should be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities" (see Digest, op. cit., para. 538) and that it is for governments to ensure that this principle is respected. The Committee requests the Government to take the necessary measures to enable trade union leaders and members of the SINTRATEXTILIA trade union who have been dismissed for their legitimate trade union activities to secure reinstatement in their posts and to keep it informed in this respect.
8. 481. As regards the allegation concerning the difficulties and the delays (from April 1992 to August 1993) in setting up the arbitration court requested by the minority trade union of workers (SINTRASUCESORES) of the Sucesores de José Jésus Restrepo enterprise after negotiations over a list of demands ended without an agreement being reached, the Committee notes the Government's statement that once the award was handed down by the High Court of Bogotá in January 1994, the dispute was considered over, but that the workers of the enterprise joined another trade union (SINALTRAINAL) and initiated a new labour dispute. The Committee notes that the latter trade union requested that a new arbitration court be convened, that this request was denied and that an appeal has been lodged against this ruling.
9. 482. In this respect, the Committee observes that the dispute at the Sucesores de José Jésus Restrepo enterprise is extremely complex and that numerous administrative and ministerial decisions have been taken. As the Committee understands it from the statements of the complainant organization and the Government, in this case a minority trade union (SINTRASUCESORES) called for the convening of an arbitration court and the Minister of Labour eventually upheld this request. In any event, observing that the arbitration court was set up by order of the Ministry of Labour 16 months after the request was made, the Committee considers this delay, which does not include the five extra months which passed before the tribunal handed down a decision, to be unacceptable. Consequently, the Committee requests the Government in future, when the parties mutually agree upon arbitration to resolve a dispute, and when such requests are upheld by the authorities, to take the measures necessary so that the court is set up quickly, and so that a decision is handed down in a reasonable period. Furthermore, as regards the new labour dispute at the enterprise, the Committee observes that the SINALTRAINAL trade union organization has requested that an arbitration court be convened. In these circumstances, the Committee expresses the hope that this arbitration court be set up as quickly as possible, so as to avoid any unjustified delays.

The Committee's recommendations

1. 483. In the light of its foregoing interim conclusions, the Committee invites the Government Body to approve the following recommendations:
   • (a) Deploring the murders and other acts of violence, and drawing the attention of the Government to the fact that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind, the Committee requests the Government to take the necessary steps for judicial investigations to begin immediately in order to elucidate the murders of Jaime Eliecer Ojeda, Alfonso Noguera and Hernando Cuadros, the attempted murders, and the threats and acts of violence, to establish who was responsible and to punish the guilty parties. The Committee requests the Government to keep it informed in this respect, and of the outcome of the judicial proceedings under way. Furthermore, the Committee urges the Government to take steps to provide protection for all those trade union leaders and members who have received threats.
   • (b) Recalling that no person should be prejudiced in his or her employment by reason of his or her trade union membership or legitimate trade union activities, and that it is for governments to ensure that this principle is respected, the Committee requests the Government to take the necessary measures to enable the trade union leaders and members of the SINTRATEXTILIA trade union who were dismissed from the Textilia Ltda. enterprise for their legitimate trade union activities to secure reinstatement in their posts and to keep it informed in this respect.
   • (c) The Committee expresses the hope that the authorities will set up, as quickly as possible, an arbitration court to resolve the new dispute at the Sucesores de José Jésus Restrepo enterprise, thus avoiding any unjustified delay.