Rapport intérimaire - Rapport No. 319, Novembre 1999

Cas no 1948 (Colombie) - Date de la plainte: 09-DÉC. -97 - Clos

Allegations: Acts of anti-union discrimination

• Allegations: Acts of anti-union discrimination
  117. 117 The Committee last examined these cases at its meeting in March 1999 (see 314th Report, paras. 42-77). The Trade Union of Workers of the Bogotá Telecommunications Enterprise (SINTRATELEFONOS) presented new allegations in a communication dated 4 June 1999.
  118. 118 The Government sent its observations on these cases in communications dated 12 August and 15 September 1999.
  119. 119 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).

A. Previous examination of the cases

1. 120. In its previous examination of the cases, when it considered allegations of acts of anti-union discrimination, the Committee made the following recommendations (see 314th Report, para. 77(a), (b), (d) and (e)):
2. (a) The Committee requests the Government to take measures with a view to furthering the reinstatement of the 23 members of SINTRATELEFONOS dismissed by the ETB enterprise and requests it to take steps to this end.
3. (b)The Committee requests the Government to inform it of any ruling handed down concerning the criminal charge against trade union officer Mr. Víctor Manuel Bautista Ramírez and of any ruling that may eventually be handed down with respect to trade union officer Ms. Patricia Cordero Tovar.
4. ...
5. (d) The Committee requests the Government to state the concrete facts prompting the dismissal of SINTRAELECOL members in the Cundinamarca Power Company (14), the EPSA company in Cali (13) and the Bogotá Power Company (1), and the dismissal of ETB employees Mr. Elías Quintana and Mr. Carlos Socha.
6. (e) Lastly, noting that the Government has not replied to the allegation concerning the accusations and investigations by public bodies or the ETB affecting some 800 workers, the Committee requests the Government to send its observations in this respect.
7. B. New allegations
8. 121. In its communication of 4 June 1999, the Trade Union of Workers of the Bogotá Telecommunications Enterprise (SINTRATELEFONOS) states that the Government has not implemented the recommendation made by the Committee at its meeting in March 1999, in which it requested the Government to take measures with a view to furthering the reinstatement of the 23 SINTRATELEFONOS members who were dismissed by the Bogotá Telecommunications Enterprise (ETB) in November 1997. The complainant also alleges that on 27 January and 10 March 1999, 11 other members of the union (five workers at the Engativá Exchange and six from the commercial section) were dismissed by the company. Lastly, the complainant states that on 20 November 1998 the Attorney-General's Office ordered the dismissal of the proceedings against the union officers Mr. Víctor Manuel Bautista Ramírez and Ms. Sandra Patricia Cordero Tovar and declared closed the criminal proceedings that had been initiated against them for alleged acts of violence against an official.
9. C. The Government's reply
10. 122. With regard to the Committee's request that measures be taken to further the reinstatement of the 23 members of SINTRATELEFONOS who were dismissed by the ETB in November 1997, the Government states in its communications of 12 August and 15 September 1999 that, as it had pointed out in its communication of 15 January 1999, the workers in question can apply to the ordinary labour courts competent to rule on legal disputes arising directly or indirectly from employment contracts and in particular to examine cases relating to trade union immunity of public employees, officials and individuals. Similarly, workers with trade union immunity who are dismissed without judicial review of the reasons given for dismissal can also initiate proceedings to secure their reinstatement and payment of any wage arrears that are owed to them. Owing to the division of powers which is a feature of any State based on the rule of law, it would be inappropriate for the Government of Colombia to favour the reinstatement of workers; in order to enforce those rights which the workers consider to have been infringed, they can apply to the ordinary labour courts or, as an interim measure, they can bring an action for protection (Acción de Tutela). The workers dismissed by the ETB have availed themselves of all the legal avenues available to them under Colombian law; despite this, and without waiting for the outcome of their applications to the courts, they presented a complaint based on the same allegations to the International Labour Organization.
11. 123. The Government states that, although the competence of the Committee on Freedom of Association to examine the allegations does not require that all the available domestic remedies be exhausted, it is nevertheless the case that the Committee must take this into account when examining such a case, as the ILO itself has indicated (cf. ILO Law on freedom of association: Standards and procedures, Geneva, 1995, page 131, paragraphs 31, 32, 33). This applies in the context of the ETB which informed the Committee on 15 January 1999 that national law provided for the possibility of applying to independent courts, in this case the ordinary labour courts and, on an interim basis, for an action for protection (Acción de Tutela). The workers dismissed by the company thus lodged applications with the ordinary labour courts and with the judges for protection (jueces de tutela) who have already ruled in a number of cases, and in most of these cases the ruling was favourable to the workers (the Government supplies the names of the 15 workers whose reinstatement was ordered by the courts, as well as those of other workers whose cases are still pending).
12. 124. As regards the dismissal of members of the union SINTRAELECOL at the Cundinamarca Power Company (14), the EPSA company in Cali (13) and the Bogotá Power Company (1), the Government states that the EPSA enterprise ordered the closure of thermal power-generation facilities on the grounds that they were totally uneconomical, and set up a voluntary severance and compensation programme. The Government adds that some workers did not join the programme and were dismissed in accordance with internal regulations which allow the dismissal with compensation of a certain proportion of the workforce without a reason being given, subject to payment of compensation. This was how the 13 dismissals referred to by the complainant came about. The Government states that the trade union SINTRAELECOL declared days of protest in other companies in the sector in order to defend the rights of the dismissed workers at the EPSA enterprise. In the case of the Cundinamarca Power Company, the stoppages resulting from the days of protest were declared illegal, since no collective bargaining was taking place and, furthermore, the service affected was an essential public service (within the meaning of Act No. 142/93). For these reasons the company dismissed 14 workers. The Government states that the dismissal of a worker in the Bogotá Power Company was based on discretionary powers and took place at a time when the company employed more than 4,000 workers. As regards the dismissal of Mr. Elías Quintana and Mr. Carlos Socha, the Government states that it requested information on the matter from the company, but that the company required more information in order to identify these workers on its payroll.
13. 125. As regards the allegation concerning the dismissal of five trade union members at the Engativá Exchange of the ETB on 27 January 1999, the Government states that, in the case of employees Ms. Gladys Pérez and Mr. Jorge Alejandro Sánchez, the company decided unilaterally to terminate their contracts of employment, in accordance with clause 19.a, paragraph c, of the collective agreement in force at the time and section 6 of Act No. 50 of 1990. The former, which concerns stability of employment, states that:
14. ... in the case of unilateral termination of a contract of employment without just cause being given by the employer, the employer shall be required to provide the worker concerned with the following compensation: (1) a cash sum equivalent to forty-five days of salary, if the worker has been employed by the company for one year or less; or (2) if the worker has been employed for a continuous period of more than one year but less than five years, the employer shall be required to pay him or her, in addition to the basic forty-five days of salary referred to in (1), twenty additional days of wages for every year of service over one year and an appropriate proportion of that sum for each fraction of one year ...
15. Section 6 of Act No. 50, which concerns the termination of employment contracts without just cause, states that "Every contract of employment shall include a provision for rescission for non-compliance with the terms agreed, which shall provide for compensation for any damages at the expense of the party responsible for the non-compliance. This compensation shall cover both any loss of earnings and consequential damages". The Government rejects the view put forward by SINTRATELEFONOS, which portrays the dismissals as violations of trade union rights, freedom of association and collective bargaining, while the complainants have manifestly disregarded provisions of the collective agreement to which they had agreed. It is clear that the ETB dismissed its workers in accordance with the law in force at the time, which makes it liable to pay compensation to the workers concerned. The Government adds that if workers did not agree with the amount of compensation or with the manner in which a contract of employment was terminated, legal mechanisms are available to enforce rights which they may consider to have been infringed.
16. 126. As regards the allegation concerning the dismissal of six workers employed in the commercial division of the ETB on 10 May 1999, the Government states that if the workers do not agree with the reasons given for the dismissals, ordinary labour law provides for ways of enforcing the rights which they believe have been infringed.
17. 127. As regards the allegation concerning accusations and investigations by public bodies and the ETB covering some 800 workers, the Government notes that according to the company the Anti-Corruption Office is proceeding with case No. 069-97 involving about 500 workers for alleged stoppages on different days. According to the Government, the case in question has been initiated under the terms of Act No. 200 of 1995 (the Single Disciplinary Code) and is currently at the investigatory stage. The Government adds that Act No. 200 sets out the basic disciplinary provisions applicable to all public employees. It establishes the disciplinary control authority of bodies such as the National Public Prosecutor, legal representation bodies (personerías) and internal disciplinary monitoring offices. It ordered the creation of higher level offices within each state establishment to examine as a body of first instance any disciplinary proceedings against workers in the establishments in question. In accordance with this instrument, in 1997 the Bogotá Telecommunications Company set up its Anti-Corruption Office which carries out the functions specified in Act No. 200 of 1995, among others. The existence of this office does not impose any limitation on the disciplinary control authority of other bodies (the Public Prosecutor and the district representation bodies) which exercise disciplinary authority at their respective levels.
18. 128. This explains how it is possible for disciplinary proceedings to be under way against workers in the Bogotá Telecommunications Company in both the Anti-Corruption Office and in various disciplinary bodies, provided that the different proceedings never relate to the same facts, i.e. actions can be initiated against a single official in any of the three bodies but for different reasons. Lastly, in exercising disciplinary authority at their respective levels, both the Public Prosecutor and the district representation offices can withdraw authority over disciplinary proceedings from the Anti-Corruption Office, which must then hand over the case as it currently stands. The action initiated by the Anti-Corruption Office in no way implies an accusation against a company employee but is simply undertaken in compliance with an order issued by an administrative authority. Nevertheless, by the discretionary powers available to the Ministry of Labour and Social Security (labour inspectorate) an investigation will be conducted into the disciplinary proceedings now under way with a view to determining whether or not there really is an anti-union campaign in the ETB.
19. 129. Lastly, with regard to the criminal charges brought against trade union officers Mr. Víctor Manuel Bautista Ramírez and Ms. Patricia Cordero Tovar, the Government states that Prosecution Office No. 209, which specializes in cases of acts against the public administration and justice, declared the investigation closed on 12 January 1999.

C. The Committee's conclusions

1. 130. The Committee notes that the allegations that had been left pending at its last examination of the case in March 1999 related to the dismissal of 28 members of the trade union SINTRAELECOL (14 at the Cundinamarca Power Company, 13 at the EPSA enterprise in Cali and one at the Bogotá Power Company), to the dismissal of Mr. Elías Quintana and Mr. Carlos Socha of the Bogotá Telecommunications Enterprise (ETB) and to the accusations and investigations by public bodies and the ETB covering some 800 workers. In addition, the Committee had requested the Government to inform it of any ruling handed down concerning the criminal charge against union officers Mr. Víctor Manuel Bautista Ramírez and Ms. Patricia Cordero Tovar. The Committee also notes the statements of the complainant SINTRATELEFONOS to the effect that the Government has not implemented the recommendation made by the Committee at its meeting in March 1999 in which it requested the Government to take measures with a view to furthering the reinstatement of the 23 SINTRATELEFONOS workers dismissed by the ETB enterprise in November 1997, and that the company dismissed another 11 trade unionists in January and March 1999.
2. 131. As regards the allegations of the dismissal of members of SINTRAELECOL at the Cundinamarca Power Company, the EPSA in Cali and the Bogotá Power Company, and the dismissal of two union officers at the ETB enterprise, the Committee notes that, according to the Government: (1) the 13 workers at the EPSA enterprise in the city of Cali were dismissed in accordance with internal company regulations which allow the dismissal with compensation of a certain proportion of the workforce without just cause, after they had failed to join the voluntary severance programme started up by the company following the closure of thermal power-generation facilities considered to be totally uneconomical; (2) the 14 workers at the Cundinamarca Power Company were dismissed following the declaration by SINTRAELECOL of days of protest which were declared illegal because no collective bargaining was under way and the service affected was an essential public service; (3) the dismissal of a worker in the Bogotá Power Company was based on discretionary powers and occurred at a time when the company employed more than 4,000 workers; and (4) the ETB said that it required more information in order to identify the union officers Mr. Elías Quintana and Mr. Carlos Socha on its payroll. In this regard, the Committee regrets that the Government has not provided detailed information which would allow it to determine whether the workers in question were dismissed because of their trade union membership or legitimate trade union activities. Under these circumstances, the Committee urges the Government to provide information on the following points: (i) the total number of workers, divided by members and non-members of SINTRAELECOL, who were dismissed at the EPSA enterprise in Cali after failing to join the voluntary severance programme; (ii) the duration and nature of the days of protest declared by SINTRAELECOL (e.g. total interruptions of services, partial stoppages, failure to consider the needs of the public, etc.), and which body declared these actions to be illegal and thus precipitated the dismissal of workers at the Cundinamarca Power Company; and (iii) the reasons for the dismissals of the SINTRAELECOL member at the Bogotá Power Company and of the union officers Mr. Elías Quintana and Mr. Carlos Socha at the ETB (who, according to the complainant, enjoyed immunity by virtue of their trade union status). The Committee requests the Government to send this information without delay.
3. 132. As regards the allegation that the Government has failed to implement the recommendation made by the Committee on the occasion of its last examination of the case in March 1999, which stated that the Government should take measures with a view to furthering the reinstatement of the 23 trade unionists who were dismissed in November 1997 at the ETB, the Committee notes that according to the Government, the courts have ordered the reinstatement of 15 of the 23 workers concerned and that court proceedings are under way with regard to the remaining workers. In this regard, the Committee requests the Government to ensure that the 15 workers whose reinstatement has been ordered are actually reinstated, and expresses the hope that the other workers will be reinstated in the near future.
4. 133. As regards the new allegations presented by the complainant SINTRATELEFONOS concerning the dismissal of 11 other members of this organization at the ETB in January and March 1999 (five workers at the Engativá Exchange and six in the commercial division), the Committee notes that according to the Government: (1) with regard to the workers dismissed at the Engativá Exchange, the company decided unilaterally to terminate the contracts of employment of Ms. Gladys Pérez and Mr. Jorge Alejandro Sánchez under the terms of clause 19 of the collective agreement in force at the time (according to the Government, the collective agreement permits dismissal without just cause on the payment of compensation) and of section 6 of Act No. 50 of 1990 (concerning the payment of compensation by the party which fails to comply with the terms of a contract of employment); and (2) as regards the dismissals in the commercial division, the Government indicates that if the workers do not accept the reasons given for these dismissals (the complainant maintains that the workers were dismissed supposedly because of low productivity), there are remedies available under ordinary labour law to enforce the rights which they consider to have been infringed. In this respect, the Committee regrets that the Government has confined itself to providing general information which does not enable it to determine whether the dismissals in question were motivated by anti-union considerations, irrespective of whether or not the collective agreement allowed dismissal of workers without just cause or whether legislation provides for the possibility of applying to the courts for redress. Under these circumstances, the Committee requests the Government to ensure that an investigation is carried out into this matter and, if the workers concerned are found to have been dismissed on the grounds of their trade union membership or legitimate trade union activities, to ensure that they are reinstated immediately in their posts. The Committee requests the Government to keep it informed in this regard.
5. 134. As regards the criminal charges brought against trade union officers Mr. Víctor Manuel Bautista Ramírez and Ms. Patricia Cordero Tovar for alleged acts of violence against an official, the Committee notes that, according to the complainant SINTRATELEFONOS and the Government, the Attorney-General's Office ordered the dismissal of the proceedings against the union officers in question and declared the case closed.
6. 135. As regards the allegation concerning accusations and investigations by public bodies and the ETB covering some 800 workers, the Committee notes that according to the Government, the Anti-Corruption Office has initiated proceedings in connection with alleged stoppages involving 500 workers which are currently at the investigatory stage, and that the Ministry of Labour and Social Security has used its discretionary power to order an investigation into the proceedings currently under way with a view to determining whether or not they constitute an anti-union campaign. In this regard, the Committee requests the Government to inform it of the specific charges brought against the workers by the Anti-Corruption Office and to keep it informed of the outcome of the investigation planned by the Ministry of Labour with a view to determining whether or not there is an anti-union campaign in the ETB enterprise.

The Committee's recommendations

1. 136. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the dismissals of members of the trade union organization SINTRAELECOL at a number of undertakings, the Committee urges the Government to provide information without delay on the following points: (i) the total number of workers, divided by members and non-members of SINTRAELECOL, who were dismissed at the EPSA enterprise in Cali after failing to join the voluntary severance programme; (ii) the duration and nature of the days of protest declared by SINTRAELECOL (total interruptions of services, partial stoppages, failure to consider the needs of the public, etc.), and which body declared these actions to be illegal and thus precipitated the dismissal of workers at the Cundinamarca Power Company; and (iii) the reasons for the dismissals of the SINTRAELECOL member at the Bogotá Power Company and of the union officers Mr. Elías Quintana and Mr. Carlos Socha at the Bogotá Telecommunications Enterprise (ETB).
   • (b) With regard to the request made to the Government during the Committee's March 1999 meeting to take measures with a view to furthering the reinstatement of the 23 members of the trade union SINTRATELEFONOS who were dismissed in November 1997 at the ETB enterprise, the Committee requests the Government to ensure the full implementation of the reinstatement order handed down by the Supreme Court in respect of 15 of the dismissed workers, and expresses the hope that the remaining trade unionists will be reinstated in the near future.
   • (c) As regards the alleged dismissal of members of the trade union organization SINTRATELEFONOS at the ETB enterprise in January and March 1999 (five workers at the Engativá Exchange and six in the commercial division), the Committee requests the Government to investigate the matter and, if it is established that the workers in question were dismissed on grounds of their trade union membership or legitimate trade union activities, to ensure that they are immediately reinstated in their posts. The Committee requests the Government to keep it informed in this regard.
   • (d) As regards the accusations and investigations by public bodies and the ETB covering some 800 workers, the Committee requests the Government to inform it of the specific charges against the workers named by the complainants -- 500, according to the Government -- by the Anti-Corruption Office. The Committee also requests the Government to keep it informed of the outcome of the investigation planned by the Ministry of Labour with a view to determining whether or not there is an anti-union campaign in the ETB enterprise.