Rapport intérimaire - Rapport No. 322, Juin 2000

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

Allegations: Acts of anti-union discrimination

• Allegations: Acts of anti-union discrimination
  38. 38 The Committee last examined these cases at its meeting in November 1999 (see 319th Report, paras. 117-136). The Trade Union of Workers of the Bogotá Telecommunications Enterprise (SINTRATELEFONOS) presented new allegations in a communication dated 9 February 2000.
  39. 39 The Government sent its observations in communications dated 9 March and 9 May 2000.
  40. 40 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. 41. In its previous examination of the cases, when it considered allegations of acts of anti-union discrimination, the Committee made the following recommendations (see 319th Report, para. 136(a), (b), (c) and (d)):
   • -- 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).
   • -- 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.
   • -- 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.
   • -- 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.

B. The Government's reply

1. 42. In its communications of 9 March and 9 May 2000, the Government states the following:
   • -- Regarding the dismissal of members of SINTRAELECOL in a number of enterprises: (1) the Government attaches the findings of the administrative inquiry conducted by the Regional Labour Directorate of Cali, showing that no worker in the service of EPSA had been dismissed for not accepting the voluntary retirement plan. Seventeen workers have been dismissed since 28 February 1998, nine of them for just cause and eight after payment of compensation; only one was a member of SINTRAELECOL; (2) the duration of the work stoppage was 48 hours according to the trade union themselves, as can be seen from the official record of the work stoppages of 25 and 26 June 1997. As verified by the competent official, the work stoppage was total and therefore no services were provided to the public despite the fact that the supply of electrical power is deemed an essential public service by Act No. 142 of 1994; there were, moreover, manifest attacks against assets, individuals and state officials. The decision declaring the work stoppages illegal was issued by the Ministry of Labour and Social Security (Decision No. 001957 of 4 September 1997). This decision completed the available government channels, after which the complainants were entitled to take their case before the Administrative Disputes Tribunal; (3) Elías Quintana and Carlos Socha are not employees of ETB.
   • -- Regarding the dismissal of 23 union members of SINTRATELEFONOS in November 1997, the Government has sent a list of the persons reinstated by the company showing the date of the decision and of their reinstatement. In the case of Martha Janeth Contreras Sánchez, Amparo Zapata Valderrama, Jorge Gustavo Albarracín Villegas, William Alberto Quevedo Ramírez, Ricardo Alberto López Hoffmann and Adelina Molina Cárdenas, the judgement of the Higher Court of the Judicial District of Santafé de Bogotá (which is attached) rejects the claim for constitutional protection on the grounds that there was no violation of due process or of the rights of the defendants by the ETB. The said rulings that Ricardo Alberto López and others are not entitled to constitutional protection could possibly be reviewed on a selective basis by the Constitutional Court to determine which is the appropriate jurisdiction. The ETB company states that it has already reinstated 22 of those who had been dismissed under an interim order of the Supreme Court of Justice. There remains the possible review by the Constitutional Court and the definitive ruling on the matter to be handed down by the labour courts.
   • -- Regarding the dismissal of ETB workers affiliated to SINTRATELEFONOS in January and March 1999, the Government states that, as requested by the Committee, an inquiry into the dismissals has been ordered. The regional office of Cundinamarca has accordingly taken appropriate administrative action; the findings are attached to the Government's reply and show that government channels are now exhausted and that the workers are entitled to bring their case before the ordinary labour courts to settle the dispute over the dismissals. The Government notes that the company states that "regarding the dismissal of ETB workers affiliated to SINTRATELEFONOS in January and March 1999, it is important to know that the dismissals were for reasons other than membership of a trade union or the carrying out of legitimate trade union activities; as can be seen from the letters terminating the contract of employment of the workers in the commercial area (sales assistants), they were dismissed for failure to meet their obligations and for their poor output, which both the collective labour agreement and the law stipulate as grounds for an employer to terminate a contract of employment. The dismissals at Engativá resulted from changes in the structure of the office of the administrative vice-president and of the vice-president for maintenance and networks, based on a survey carried out by the Arthur Andersen company." Two of these 11 workers lodged an appeal but their claim was dismissed; one female worker filed a suit - currently pending - before the regular labour jurisdiction.
   • -- Regarding the accusations and investigations affecting some 800 ETB workers, Act No. 200 of 1995, whereby the Single Disciplinary Code was adopted, provides that, through its various bodies, the State is the responsible party for disciplinary action, subject to the preferential power of the Office of the General Prosecutor to take disciplinary action against public servants. Section 48 of the Act provides for the constitution of a high-level unit or office as the first instance for disciplinary proceedings against public servants. Consequently, according to the law and the internal rules and regulations of the telecommunications enterprise of Santafé de Bogotá (ETB), the Anti-Corruption Office is competent to hear, judge and rule on disciplinary matters. The interim or final decisions taken are based on constitutional guarantees referred to in Act No. 200 of 1995, with due respect for the rights of the defendants. In this particular case, the Ministry of Labour and Social Security, by Decisions Nos. 002286 and 002287 of 9 October 1997 inter alia, ruled that the partial work stoppages by the ETB workers during 1997 were illegal. These administrative acts can be challenged before the Administrative Disputes Court, and the parties concerned would therefore be advised to take the appropriate action. In accordance with section 144 of Act No. 200 of 1995 and the inquiry procedure referred to in its section 138, the ETB initiated disciplinary action in connection with the alleged work stoppages of 782 public servants on 17 April, 27 and 30 May, 4, 5 and 6 June and 2 July 1997. The fact that these work stoppages that led to inquiry No. 068/97 actually occurred was established provisionally on the occasion of administrative visits to the ETB power stations affected by the said trade union activities; The events, circumstances and reports have been duly documented by the officials conducting the inquiry. The latter also verified the time sheets showing the arrivals and departure of the officials assigned to each of the company's departments and were therefore able to determine whether or not they were present to carry out their duties. In the course of the investigation and in accordance with the rights of the defendants, all the persons concerned were able to give statements freely and spontaneously. Following the examination of evidence, all 782 workers have been cleared by the inquiry and no sanction has been imposed.

C. New allegations of the complainant

1. 43. In a communication dated 9 February 2000 SINTRATELEFONOS has sent new allegations in connection with its complaint.

D. The Committee's conclusions

1. 44. The Committee observes that when it examined this case at its November 1999 meeting, it had requested the Government to take action or to provide information on a number of allegations. Specifically, the Committee asked 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 (total interruptions of service, 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 in 1997 - not mentioned by name by the complainant - and of the union officers (benefiting from trade union protection, according to the complainant) Mr. Elías Quintana and Mr. Carlos Socha at the Bogotá Telecommunications Enterprise (ETB); (iv) the specific charges against numerous ETB workers by the Anti-Corruption Office and 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 likewise requested the Government: (i) to order an investigation into the dismissal of 11 members of SINTRATELEFONOS in the ETB enterprise in January and March 1999 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, and to keep it informed in this regard; and (ii) with regard to the 23 trade union members who were dismissed in November 1997 at the ETB enterprise, to ensure the full implementation of the reinstatement order handed down by the Supreme Court in respect of 15 of the dismissed workers and expressed the hope that the remaining trade unionists would be reinstated in the near future.
2. 45. Regarding the request for information on 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, the Committee notes the Government's statement that the administrative inquiry conducted by the Regional Labour Directorate of Cali shows that no worker in the service of EPSA has been dismissed for not joining the voluntary severance programme and that since 28 February 1998 the enterprise has dismissed 17 workers, only one of whom was a member of SINTRAELECOL. In these circumstances, the Committee does not intend to pursue the examination of this allegation further.
3. 46. Regarding the request for information on 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 - the enterprise that supplies electrical power - the Committee notes the Government's statement that: (1) the duration of the work stoppages was 48 hours, during which there was a total breakdown in this essential public service and manifest violence against assets, persons and state officials; and (2) the illegality of the work stoppages was declared by the Ministry of Labour and Social Security, which thereby exhausted all administrative channels. The Committee recalls that electricity supply services may be considered essential services in the strict sense of the term (i.e. services whose interruption could endanger the life, personal safety or health of the whole or part of the population), and that a strike might be the subject of restrictions or even a prohibition. That being said, the Committee stresses that "responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved" (see Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 4th edition, 1996, para. 522). In these circumstances, the Committee requests the Government to take steps to ensure that this principle is respected in future.
4. 47. Regarding the request for information on the reasons for the dismissals of the SINTRAELECOL member of the Bogotá Power Company and of the union officers (benefiting from trade union protection, according to the complainants) Mr. Elías Quintana and Mr. Carlos Socha at the Bogotá Telecommunications Enterprise (ETB), the Committee notes the Government's statement that Elías Quintana and Carlos Socha were not employees of the ETB enterprise. The Committee requests the complainants to supply more precise information in this respect. As regards the dismissal of a member of SINTRAELECOL at the ETB, whose name had not been provided by the complainants, the Committee requests the complainants to indicate the name of this member so that the Government may communicate its observations on this allegation.
5. 48. Regarding the specific charges that the Anti-Corruption Office has brought against a large number (800, according to the complainant) of workers of the ETB enterprise, the outcome of this trial and the outcome of the Ministry of Labour's planned investigation (with a view to determining whether or not there is an anti-union campaign in the ETB enterprise), the Committee notes the Government's statement that the Act under which the Single Disciplinary Code was adopted calls for the establishment of a unit or office to give a first hearing to disciplinary charges brought against public servants; within the ETB enterprise the Anti-Corruption Office is empowered to hear, judge and rule on disciplinary matters; the Ministry of Labour and Social Security declared the partial work stoppages by workers in the ETB enterprise during 1997 to be illegal; the ETB enterprise initiated a disciplinary inquiry into the alleged work stoppages involving 782 public servants of the enterprise; the reality of the work stoppages was established by administrative visits; in the course of the inquiry the workers concerned were heard and, as a result, all 782 workers have been cleared and no sanctions have been imposed on the workers. The Committee, nevertheless, regrets that the inquiries had been taken as a result of a declaration by the Ministry of Labour that the work stoppages were illegal, while the final result was that no charges were retained against the public servants in question.
6. 49. Regarding the request that the Government order an investigation into the dismissal of 11 members of SINTRATELEFONOS at the ETB enterprise in January and March 1999, the Committee notes the Government's statement that: (1) the Regional Office of Cundinamarca has conducted an inquiry and concluded that administrative channels are now exhausted and that the workers are at liberty to bring their case before the judicial authorities; (2) the enterprise claims that the dismissals were on grounds other than membership of a trade union organization or the performance of legitimate trade union activities and were based on the workers' failure to carry out their duties and their low output (as provided for both in the collective agreement and by law) and as a result of a change in the structure of the office of the administrative vice-president and of the vice-president for maintenance and networks; and (3) two dismissed workers have filed lawsuits (tutela) which have been rejected, and a female worker has filed judicial proceedings before the regular labour jurisdiction, which is currently pending. In these circumstances, the Committee requests the Government to keep it informed on the result of the judicial proceedings filed by a female worker. Furthermore, while noting the information provided by the enterprise, the Committee requests the Government to carry out a thorough investigation into the grounds for the dismissals of the 11 members of SINTRATELEFONOS and more specifically on whether these dismissals constituted acts of anti-union discrimination.
7. 50. Regarding the trade union members dismissed in November 1997 at the ETB enterprise (the Committee had requested 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 had expressed the hope that the remaining trade unionists would be reinstated in the near future), the Committee notes with interest the Government's statement that the enterprise has already reinstated 22 of the dismissed workers in accordance with an interim order of the Supreme Court of Justice and that the claims for protection before the Constitutional Court and the final judgements to be handed down by the labour courts in this respect are still pending. The Committee accordingly requests the Government to keep it informed of the outcome of the judicial proceedings in question.
8. 51. Regarding the new allegations presented by SINTRATELEFONOS in connection with this complaint, the Committee observes that the allegations are of recent date and requests the Government to communicate to it its observations on the matter.

The Committee's recommendations

1. 52. In the light of its foregoing interim conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take steps to ensure that in future the principle whereby responsibility for declaring a strike illegal should not lie with the Government but with an independent body which has the confidence of the parties involved is respected.
   • (b) The Committee requests the complainants to supply more precise information on whether the trade union officials Elías Quintana and Carlos Socha - dismissed according to the complainants - were workers of ETB enterprise. As regards the allegations of the dismissal of a member of SINTRAELECOL from the Bogotá Power Company (whose name had not been provided by the complainants), the Committee requests the complainants to indicate the name of this member so that the Government may communicate its observations on the allegation.
   • (c) Regarding the dismissal of 11 members of SINTRATELEFONOS at the ETB enterprise in January and March 1999, the Committee requests the Government to keep it informed of the results of the judicial proceedings filed by a female worker. Furthermore, the Committee requests the Government to carry out a thorough investigation into the grounds for the dismissal of the 11 members of SINTRATELEFONOS and more specifically on whether these dismissals constituted acts of anti-union discrimination.
   • (d) Regarding the trade union members dismissed in November 1997 at the ETB enterprise, the Committee requests the Government to keep it informed of the outcome of the judicial proceedings with respect to the workers in question.
   • (e) The Committee requests the Government to communicate to it its observations on the new allegations presented by SINTRATELEFONOS in connection with this complaint in a communication dated 9 February 2000.