Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 338, Novembre 2005

Cas no 2068 (Colombie) - Date de la plainte: 20-JANV.-00 - Clos

Allegations: Denial of trade union leave and violation of the collective agreement in the Fabricato enterprise presented by SINTRATEXTIL; non-fulfilment of agreements between the Enka enterprise and SINTRATEXTIL; refusal to reinstate dismissed ASEINPEC trade union leaders, murder of four trade union officials, dismissal of union leaders and members in the Municipality of Puerto Berrío, presented by the CGTD

682. The Committee last examined this case at its November 2004 meeting [see 335th Report, paras. 732-750] and submitted an interim report to the Governing Body.

1. 683. The Employees’ Association of the National Penitentiary and Prison Institute (ASEINPEC) sent additional information in a communication dated 5 February 2005 and new allegations in a communication in August 2005. The Single Confederation of Workers (CUT) presented additional information in a communication dated 4 April 2005.
2. 684. The Government sent its observations in communications dated 2, 7 and 13 September 2005.
3. 685. Colombia has ratified the Freedom of Association and Protection of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 686. At its November 2004 meeting, the Committee made the following recommendations [see 335th Report, para. 750]:
2. (a) As regards the allegations presented by SINTRATEXTIL, to the effect that in the Fabricato enterprise trade union leave is denied and trade union leaders are denied access to the enterprise, in respect of which the Antioquia Territorial Directorate left the parties free to bring the case before the courts, the Committee requests the Government to inform it whether the trade union has initiated judicial proceedings.
3. (b) As regards the violation of the collective agreement in the Fabricato enterprise, the Committee requests the Government to keep it informed of the final outcome of the three pending administrative investigations and to ensure effective compliance with the collective agreement in the enterprise.
4. (c) As regards the allegations concerning non-compliance of the agreements concluded between the president of the Enka enterprise and the trade union, violations of the collective agreement through the conclusion of contracts with companies to conduct work covered by the collective agreement, and distribution of the hardest tasks to unionized workers, in respect of which the Antioquia Territorial Directorate carried out an administrative investigation and acquitted the enterprise, the Committee requests the Government to keep it informed of any judicial appeal lodged by the trade union against this administrative decision.
5. (d) As regards the remaining allegations presented by SINTRATEXTIL, referring to dismissals on the grounds of restructuring, in violation of a collective agreement, in the Coltejer enterprise and favouritism towards one of the enterprise trade unions to the detriment of the industry union, as well as violation of the collective agreement in the Textiles Rionegro enterprise, the Committee urges the Government to send its observations without delay.
6. (e) As regards the refusal of INPEC to return the trade union offices as ordered by the judicial authority, and the remaining allegations concerning threats, sanctions, disciplinary proceedings and transfers involving ASEINPEC union leaders, the Committee strongly urges the Government to take steps to ensure that the ASEINPEC offices are returned without delay, as ordered by the judicial authority, and to send its observations concerning the remaining allegations.
7. (f) As regards the murders of trade union officials Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García, the Committee deeply regrets that, despite the time which has elapsed since the events occurred and the request of the Committee in its 333rd Report, the Government has not sent its observations, and once again strongly urges it to take the necessary steps without delay to ensure that the investigations allow those responsible for these murders to be punished in the near future and to keep it informed in this respect.
8. (g) The Committee requests the Government to provide its observations concerning the additional information submitted by the CGTD, Antioquia branch, in its communication dated 23 September 2004.
9. (These are allegations concerning the dismissal of leaders and members in the municipality of Puerto Berrío – 57 members, including the members of the Executive Committee of the Union of Puerto Berrío Municipal Workers and 32 members of the Puerto Berrío Municipal Employee’s Association – the Union of Puerto Berrío Municipal Workers (SINTRAMUNICIPALES), regarding which the union states that, after the investigation carried out by the Labour and Social Security Inspectorate into the town hall, the municipality was sanctioned and the ordinary jurisdiction ordered that 18 dismissed union leaders be reinstated, denying the reinstatement of the workers who were merely union members.)
10. B. New allegations
11. 687. In its communication dated 4 April 2005, the Single Confederation of Workers (CUT) presented additional information about the allegations examined by the Committee at previous meetings regarding the mass dismissal in 1992 of SOFASA workers who were members of SINTRAUTO. The CUT indicates that those allegations were not taken into account during previous examinations of the case by the Committee on Freedom of Association.
12. 688. Regarding the allegations presented by the Employees’ Association of the National Penitentiary and Prison Institute (ASEINPEC) concerning the dismissal of union leaders in violation of trade union immunity (according to the original allegations contained in the 328th Report of the Committee, paragraph 145, because of a peaceful one-day action in support of prison security, conducted by ASEINPEC in all of the country’s prisons, the Director-General of the National Penitentiary and Prison Institute (INPEC) proceeded, on 16 May 2000, to dismiss from their posts 80 trade union leaders who were members of the National Governing Council and section councils in order to eliminate the trade union. The Cundinamarca regional director fined INPEC 50 statutory minimum wages through Administrative Decree No. 01072 dated 24 July 2001 and the directorate general of INPEC issued Decree No. 02101 dated 6 July 2001 referring to the ruling handed down by the High Court of the Judicial District of the Department of Quindío that ordered the reinstatement of the INPEC civil servants), according to the trade union, although most of the union leaders were reinstated, Henry Buyucue Penagos, Germán Amaya Patiño, Gustavo Gutiérrez Rojas, Harold Nieto Rengifo, Luis Fernando Gutiérrez Santos, Pedro Laureano Rengifo and Jairo Alberto Pérez Santander have not yet been reinstated. Regarding the return of union offices, the trade union reports that they have already been handed back.
13. C. The Government’s reply
14. 689. In its communications of 2, 7 and 13 September 2005, the Government sent the following observations.
15. 690. Paragraph (a) of the recommendations in the 335th Report: regarding the allegations presented by SINTRATEXTIL, to the effect that in the Fabricato enterprise trade union leave is denied and trade union leaders are denied access to the enterprise, in respect of which the Committee requested the Government to inform it whether the trade union had initiated judicial proceedings, according to information supplied by the vice-president of industrial relations of Fabricato-Tejicondor, union leaders are granted both paid and unpaid leave (the list of permits granted is attached). In total, the enterprise grants its four unions 47,000 hours of leave.
16. 691. Paragraph (b) of the recommendations: regarding the final outcome of the investigations undertaken by the Antioquia Territorial Directorate, as regards the violation of the collective agreement in the Fabricato enterprise, the Government reports that two of the investigations were closed for lack of legal grounds according to decisions dated 17 August 2004 and 5 April 2005. In accordance with Decision No. 2360 of 16 September 2004, the Fabricato-Tejicondor enterprise was fined five statutory minimum wages, totalling one million seven hundred and ninety thousand pesos (1,790,000), for violating the collective labour agreement. This decision is final, given that the enterprise’s fine was upheld after an appeal.
17. 692. Paragraph (c) of the recommendations: as regards the allegations concerning non-compliance with the agreements concluded between the president of the Enka enterprise and the trade union, violations of the collective agreement through the conclusion of contracts with companies to conduct work covered by the collective agreement, and distribution of the hardest tasks to unionized workers, according to a communication signed by the first deputy legal representative of Enka, to date SINTRATEXTIL has not brought legal action.
18. 693. However, according to the case brought against Enka by SINTRATEXTIL for violation of the right to organize, the territorial directorate of Antioquia opened an investigation, which led to Decision No. 230 of 9 February 2005, which determines that the Ministry of Social Protection does not have the jurisdiction to rule on the matter, as it involved legal questions, which administrative civil servants are prohibited from addressing. The SINTRATEXTIL union lodged appeals for reversal to the higher court against the aforementioned Decision; the rulings are contained in Decision No. 0707 of 6 April 2005 and No. 1773 of 5 August 2005 confirming Decree No. 230. In addition, in accordance with the provisions of article 333 of the Political Constitution, enterprises have economic freedom to hire personnel as long as they respect the rights of the workers.
19. 694. Paragraph (d) of the recommendations: as regards the remaining allegations presented by SINTRATEXTIL, referring to dismissals on the grounds of restructuring, in violation of a collective agreement, in the Coltejer enterprise and favouritism towards one of the enterprise trade unions to the detriment of the industry union, as well as violation of the collective agreement in the Textiles Rionegro enterprise, according to a communication signed by the director of human resources at Coltejer, in the past ten years no workers have been dismissed in a manner incompatible with the agreement, given that any retirements from the enterprise are by mutual agreement, through the early retirement procedure.
20. 695. Regarding favouritism towards one of the unions, the Government states that no such favouritism exists, as the enterprise has a good relationship with both trade unions (SINALTRADIHITEXCO-SINTRATEXTIL). As regards the violation of the agreement, the Government indicates that it is very important to clarify the alleged violation, i.e. to indicate what it consisted of.
21. 696. Paragraph (e) of the recommendations: as regards the refusal of INPEC to return the trade union offices as ordered by the judicial authority, and the remaining allegations concerning threats, sanctions, disciplinary proceedings and transfers involving the Employees’ Association of the National Penitentiary and Prison Institute (ASEINPEC) union leaders, according to the director general of INPEC, the office given to the trade union ASEINPEC is functioning, in the premises of the enterprise, and its use and service has been guaranteed since the beginning of the current administration.
22. 697. Regarding the decisions handed down by the various authorities (judicial and administrative), according to the director of INPEC’s statement, these have been strictly enforced, and the reinstatements ordered in the various rulings have been carried out. Consequently, INPEC does not currently have any rulings to enforce. However, the director of INPEC notes that the current administration has not violated any of the rules protecting the immunity of civil servants, but rather has maintained the best possible relations with both trade unions.
23. 698. Paragraph (g) of the recommendations: regarding the allegations of the dismissal of union leaders and members in the Municipality of Puerto Berrío – 57 members, including members of the Executive Committee of the Union of Puerto Berrío Municipal Workers and 32 members of the Puerto Berrío Municipal Employees’ Association – it should be noted that, in accordance with the provisions of the Political Constitution, the restructuring has legal and constitutional grounds, as has been explained on a number of occasions, which is why the Decrees ordering the restructuring are completely legal and their legality is supervised by the administrative judicial authority. If the workers thought at the time that there were irregularities in a Decree, they should have petitioned the administrative judicial authority for confidentiality to be lifted. The Government has the constitutional authority to create, merge and eliminate posts as required by the administration; it can also modify the structure of public bodies, subject to the general principles and rules of the law. The main objective of the restructuring is to ensure that public bodies are viable, in conformity with the constitutional principles of efficiency and effectiveness, the purpose of which is to provide the community with optimum service. The restructuring process requires eliminating posts; this does not have anything to do with the workers themselves, that is whether or not they belong to a trade union, as indicated in the ruling of 21 August 2001 handed down by the High Court of Medellín, Labour Chamber:
24. Furthermore, the Labour Chamber is of the opinion that, in this case, the constitutional right to freedom of association has not been infringed, insofar as the collective dismissal of workers in the Municipality of Puerto Berrío (Ant.) was not carried out with the aim of weakening or eliminating the trade union of which the workers in that Municipality were members, or at least that any proof to this effect is noticeably lacking, and that they were dismissed in October, November and December 1999, after the recognition and payment of damages.
25. It should be noted that, in accordance with the aforementioned ruling, the dismissed workers were paid statutory damages. The Government concludes therefore that the workers were made redundant because of the restructuring process.
26. 699. Regarding the CUT’s allegation of collective dismissal at SOFASA, the Government states that it has already replied sufficiently to all the allegations presented and that these allegations date back many years, making it impossible to supply further information.

D. The Committee’s conclusions

1. 700. The Committee recalls that the allegations pending concern the denial of trade union leave, the violation and non-fulfilment of collective agreements, the dismissal of union leaders and members, the refusal to return union offices and the murder of four trade union officials.
2. 701. Regarding paragraph (f) of the recommendations concerning the murders of trade union officials Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García, the Committee once again deeply regrets that, despite the time which has elapsed since the events occurred and the request of the Committee in its 333rd Report, the Government has not sent any new information about the investigations that are under way, and once again strongly urges it to take the necessary steps without delay to ensure that the investigations allow those responsible for these murders to be identified and adequately punished in the near future and to keep it informed in this respect.
3. 702. Regarding paragraph (a) of the recommendations concerning the allegations presented by SINTRATEXTIL, to the effect that in the Fabricato enterprise trade union leave is denied and trade union leaders are denied access to the enterprise, the Committee recalls that, in its previous examination of the case, it had requested the Government to inform it whether the trade union had initiated judicial proceedings. The Committee notes the Government’s statement that the enterprise reports that union leaders were granted both paid and unpaid leave and that in total the enterprise granted its four unions 47,000 hours of leave. Taking account of this information, the Committee will not pursue the examination of these allegations, unless the complainant provides further information.
4. 703. Regarding paragraph (b) of the recommendations concerning violation of the collective agreement in the Fabricato enterprise, the Committee notes the Government’s information that two of the investigations were closed and that in the third Decision No. 2360 was handed down, fining the Fabricato-Tejicondor enterprise five statutory minimum wages, totalling one million seven hundred and ninety thousand (1,790,000) pesos, for violating the collective labour agreement, and that the Decision stands.
5. 704. Regarding paragraph (c) of the recommendations concerning the allegations of non-compliance with the agreements concluded between the president of the Enka enterprise and the trade union, violation of the collective agreement through the conclusion of contracts with companies to conduct work covered by the collective agreement, and distribution of the hardest tasks to unionized workers, in regard to which the Committee had requested the Government to keep it informed of any judicial appeal lodged by the trade union against the decision of the Antioquia Territorial Directorate absolving the enterprise of responsibility, the Committee notes that, according to the Government, the SINTRATEXTIL union has not brought any legal action to date.
6. 705. Regarding paragraph (d) of the recommendations concerning allegations presented by SINTRATEXTIL referring to dismissals on the grounds of restructuring, in violation of a collective agreement, in the Coltejer enterprise, the Committee notes the Government’s statement that, according to information provided by the enterprise, in the past ten years no workers have been dismissed in a manner incompatible with the agreement and that any current retirements from the enterprise are by mutual agreement with the workers through the early retirement procedure. Regarding favouritism towards one of the enterprise unions to the detriment of the industry union, the Government states that, according to the enterprise, no such favouritism exists, and it has a good relationship with both trade unions that are represented there, SINALTRADIHITEXCO and SINTRATEXTIL. The Committee requests the Government to ensure that the principles of freedom of association are fully respected in the enterprise, particularly as regards the non-interference of the enterprise in favour of a union.
7. 706. Regarding the violation of the collective agreement in the Textiles Rionegro enterprise, the Committee regrets that the Government has not sent its observations on the matter and requests that it promptly take measures to guarantee the full application of the existing collective agreement in the enterprise.
8. 707. Regarding paragraph (e) of the recommendations, concerning the refusal of INPEC to return the trade union offices as ordered by the judicial authority, the Committee notes with interest that, according to both the complainant and the Government, the offices have already been returned to the trade union.
9. 708. Regarding the allegations concerning the dismissal of the Employees’ Association of the National Penitentiary and Prison Institute (ASEINPEC) union leaders in violation of trade union immunity, the Committee notes that, according to the trade union, although most of the union leaders were reinstated, Henry Buyucue Penagos, Germán Amaya Patiño, Gustavo Gutiérrez Rojas, Harold Nieto Rengifo, Luis Fernando Gutiérrez Santos, Pedro Laureano Rengifo and Jairo Alberto Pérez Santander have not yet been reinstated. The Committee notes the Government’s indication that, according to the director of INPEC’s statement, the decisions handed down by the various authorities (judicial and administrative) have been strictly enforced, the reinstatements ordered in the various rulings have been carried out and that, consequently, INPEC does not currently have any rulings to enforce. The Committee observes a discrepancy between the allegations presented and the information given to the Government by INPEC. Therefore, the Committee requests the Government to carry out an independent investigation to determine whether the union leaders dismissed in violation of union immunity for participating in a one-day action in support of prison security in 2000 have all been reinstated, as ordered by judicial and administrative rulings. The Committee requests the Government to keep it informed in this respect.
10. 709. Regarding paragraph (g) of the recommendations concerning the allegations of the dismissal of union leaders and members in the Municipality of Puerto Berrío – 57 members, including members of the Executive Committee of the Union of Puerto Berrío Municipal Workers and 32 members of the Puerto Berrío Municipal Employees’ Association – the Committee notes the General Confederation of Democratic Workers’ (CGTD) indication that, after the investigation carried out by the Labour and Social Security Inspectorate into the town hall, the municipality was sanctioned and the ordinary jurisdiction ordered that 18 dismissed union leaders be reinstated, denying the reinstatement of the workers who were merely union members. The Committee notes the Government’s statement that, in accordance with the provisions of the Political Constitution, the restructuring has legal and constitutional grounds, the main objective being to ensure that public bodies are viable, in conformity with the constitutional principles of efficiency and effectiveness, the purpose of which is to provide the community with optimum service, and that in any restructuring process it is necessary to eliminate posts, but this does not have anything to do with whether or not the worker belongs to a trade union. The Committee observes that the allegations concern collective dismissals in the context of restructuring and also that trade union leaders were dismissed without their trade union immunity having been lifted, then were reinstated by a judicial order, while the municipality was sanctioned. Although, according to the Government, this was a result of the general restructuring process, in view of the fact that the Labour Inspector sanctioned the municipality for the collective dismissal, in particular that of the union leaders, the Committee requests the Government to take measures to carry out an independent investigation to determine whether, in the restructuring process, the workers who were merely union members were the object of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.
11. 710. Regarding the allegations presented by the Single Confederation of Workers (CUT) concerning the mass dismissal in 1992 of SOFASA workers who were members of SINTRAUTO, Envigado executive subcommittee, the Committee recalls that, as a consequence of those mass dismissals, the Envigado executive subcommittee of SINTRAUTO, of which the SOFASA workers were members, has disappeared. In 1996, the national trade union instituted judicial proceedings against the enterprise for non-compliance with the collective agreement, without the participation of the Envigado executive subcommittee, as it no longer existed. In 1997, the national trade union underwent conciliation with the enterprise, accepting compensation of 17 million pesos for non-compliance with the collective agreement, and a clause was included in the conciliation agreement stating that there was no other action pending against the enterprise (the Government sent a copy of the conciliation agreement) [see the 325th Report of the Committee, para. 331]. According to the CUT, the conciliation did not make reference to the matter of the mass dismissals, and hence it considers that the dispute remains pending in this respect. It also adds that the clause to the effect that there was no other action pending against the enterprise reflected the fact that, at the time, all the internal appeals initiated by the complainant had been completed. The Committee notes that, according to the Government, these allegations date back many years and therefore it is difficult to provide more information than that which has already been sent. The Committee, while observing that the dismissals took place more than ten years ago, requests the Government to ensure that the workers involved have been fully compensated. In this context, the Committee requests the complainant to send the Government a full list of the workers affected.

The Committee's recommendations

1. 711. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Concerning the murders of trade union officials Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García, the Committee once again strongly urges the Government to take the necessary steps without delay to ensure that the investigations allow those responsible for these murders to be identified and adequately punished in the near future and to keep it informed in this respect.
   • (b) Regarding favouritism towards one of the enterprise unions to the detriment of the industry union, the Committee requests the Government to ensure that the principles of freedom of association are fully respected in the enterprise, particularly as regards the non-interference of the enterprise in favour of a union.
   • (c) Regarding the violation of the collective agreement in the Textiles Rionegro enterprise, while regretting that the Government has not sent its observations on the matter, the Committee requests that it promptly take measures to guarantee the full application of the existing collective agreement in the enterprise.
   • (d) Regarding the allegations presented by ASEINPEC concerning the dismissal of union leaders in violation of trade union immunity, the Committee requests the Government to carry out an independent investigation to determine whether the union leaders dismissed in violation of union immunity for participating in a one-day action in support of prison security in 2000 have all been reinstated as ordered by judicial and administrative rulings and requests the Government to keep it informed in this respect.
   • (e) Regarding the allegations of the dismissal of union leaders and members in the Municipality of Puerto Berrío – 57 members, including members of the Executive Committee of the Union of Puerto Berrío Municipal Workers and 32 members of the Puerto Berrío Municipal Employees’ Association – in view of the fact that the Labour Inspector sanctioned the municipality for the collective dismissal, in particular that of the union leaders, the Committee requests the Government to take measures to carry out an independent investigation to determine whether, in the restructuring process, the workers who were merely union members were the object of anti-union discrimination and to keep it informed in this respect.
   • (f) As regards the SINTRAUTRO members dismissed in 1992 from the SOFASA enterprise, who, according to the CUT, were not included in the 1997 conciliation agreement, the Committee, while observing that the dismissals took place more than ten years ago, requests the Government to ensure that the workers involved have been fully compensated. In this context, the Committee requests the complainant to send the Government a full list of the workers affected.