Rapport définitif - Rapport No. 378, Juin 2016

Cas no 2824 (Colombie) - Date de la plainte: 16-JUIL.-10 - Clos

Allegations: The complainant organization denounces various anti-union acts by the enterprise Kraft Foods Colombia SA, including unjustified dismissals and pressure put on workers to leave the union

1. 132. The complaint is contained in a communication dated 13 May 2010 presented by the National Union of Agri-Food Industry Workers (SINALTRAINAL).
2. 133. The Government sent its observations in communications dated August 2011 and 10 September 2015.
3. 134. Colombia has ratified 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), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 135. The complainant organization alleges that the enterprise Kraft Foods Colombia SA (hereinafter: “the enterprise”) is responsible for a series of anti-union acts, including unjustified dismissals, pressure to resign from employment, assaults and death threats. Firstly, the complainant denounces the endangering of the right to personal safety of a number of its members, stating that: (i) on 20 March 2004, when various SINALTRAINAL members were on hunger strike in different cities around the country, an envelope signed by the United Self-Defence Forces of Colombia, a paramilitary group, was found at the headquarters of SINALTRAINAL–Palmira, Valle del Cauca, containing death threats against members of the SINALTRAINAL–Palmira executive committee who worked for the enterprise; (ii) a complaint about these threats was filed with the Public Prosecutor; (iii) on 18 June 2004, the President of SINALTRAINAL–Palmira, José Fraybel Melo, received similar threats by phone, which were also reported to the Public Prosecutor; (iv) on 7 October 2004, the enterprise’s chief of security verbally abused and photographed a group of SINALTRAINAL members who were holding a meeting opposite the enterprise’s Palmira site; this incident was communicated to the Public Prosecutor’s Office, with reference to the earlier complaints; and (v) on 25 November 2004, a pamphlet containing death threats against the trade union leaders was found on the enterprise’s premises; this was also communicated to the Public Prosecutor’s Office with reference to the earlier complaints.
2. 136. Secondly, the complainant organization states that by virtue of Decree No. 2351 of 1965, when a trade union has the majority of an enterprise’s employees as its members, the collective agreement signed by that union applies to all workers at the enterprise, and non-unionized workers must pay union dues in order to benefit from the agreement. The complainant alleges that, from 2002 onwards, the enterprise refused to fulfil its legal obligation to collect these dues for SINALTRAINAL and that the Ministry of Social Protection, despite having initially penalized the enterprise through a decision of 19 March 2004, subsequently decided to cancel the penalty by means of another decision of 28 September 2004.
3. 137. Thirdly, the complainant organization denounces various dismissals and instances of pressure on workers belonging to SINALTRAINAL to resign, including the following: (i) on 7 November 2003, SINALTRAINAL members Fabio Sánchez, Jorge Montoya, Jorge Bermúdez and José Luis Lozano were dismissed; (ii) on 17 February 2005, seven administrative workers were put under pressure to sign letters of resignation from their employment; (iii) the enterprise put pressure on eight women members of SINALTRAINAL, which led to their resignation and acceptance of early retirement pensions on 4 June 2005; (iv) on 11 June 2005, a total of 30 SINALTRAINAL members were put under pressure to resign from their employment and, upon their refusal to do so, a national police riot squad intervened, inflicting injuries on Raúl Andrés Ortiz, Eduardo Herrán, Brigitee Narváez, Hernando López, Diego Segura, Jhon Jairo Millán, Jhon Jairo Tascón, Orlando Medina, Marta Piedrahita, Héctor Fabio Palacios, Diego Ledesma, Amparo Cifuentes, Martha Ruiz, Sohelly Toro, Juan Carlos Castro, Edison Becerra, Jenny Murcia, Luz Myriam Ceballos and Diego Ladino, some of whom are SINALTRAINAL officials; the trade union states that in spite of the numerous complaints presented, the authorities have not prosecuted those responsible for the attacks; and (v) on 6 October 2005, union members Marta Piedrahita and Héctor Fabio Palacio were dismissed without a valid reason, following their refusal to sign resignation letters; in response to the dismissals, the interested parties initiated various legal proceedings.
4. 138. The complainant organization also alleges that, on 2 February 2007, a total of 25 temporary workers employed by the enterprise joined SINALTRAINAL. However, the enterprise refused to recognize these workers’ union membership; it dismissed 22 of them and the other three were obliged to sign letters of resignation from the union in order to obtain new employment contracts.
5. 139. The complainant organization further alleges that since 2003 the enterprise’s strategy has consisted in reducing the number of workers it employs directly in order to weaken the trade union, reducing the number of directly employed workers from 230 in 2003 (of whom 148 were SINALTRAINAL members) to 139 in 2010 (of whom 94 were SINALTRAINAL members). It adds that this reduction was accompanied by pressure from the enterprise on workers not to join the union and by its use of external workers who have had no contact with the union – facts which have been communicated on numerous occasions to the labour inspectorate and the local authorities.
6. 140. Lastly, the complainant organization denounces the installation of video cameras throughout the enterprise premises, including in the areas where the workers have their meals. It believes that the real reason for these cameras is not to ensure the workers’ physical safety but to subject them to quasi-police surveillance, which is prohibited under Colombian law.

B. The Government’s reply

1. 141. In a communication of August 2011, the Government sent its observations regarding the allegations of death threats against SINALTRAINAL union leaders. The Government states that, with the exception of the alleged threats against José Fraybel Melo, the Committee is already examining the other allegations under Cases Nos 1787 and 2761. Recalling its policy on the protection of trade union leaders and members and on combating impunity, the Government indicates that the complaint concerning the threats against José Fraybel Melo is under investigation by the Cali Special Prosecution Unit No. 83, registered as Case No. 5407. The Government indicates that it will continue providing information in this regard under Cases Nos 1787 and 2761.
2. 142. In a communication of 10 September 2015, the Government sent the observations of the Kraft Foods Colombia SA enterprise, which was in liquidation, indicating that: (i) the enterprise in liquidation has no knowledge of the 2004 events referred to in the complaint; (ii) the enterprise in liquidation has no record of any labour-related complaints or administrative investigations relating to the reported events; and (iii) in 2011, the Ministry of Labour authorized the termination of the employment contracts on account of the permanent closure of the enterprise’s plant.
3. 143. The Government has also sent the observations of the Ministry of Labour directorate for Valle del Cauca indicating that: (i) on 31 January 2011, the enterprise requested authorization for its permanent closure and the termination of the 160 employment contracts then in force; (ii) the coordinating body of the Labour Management Group at the Ministry of Labour concluded that the authorization of collective dismissals on account of the enterprise’s permanent closure was technically and economically viable; (iii) a decision of 6 May 2011 authorized the termination of the employment contracts of José Fraybel Melo Bedoya and Raúl Andrés Ortíz López, further to the expiry of their trade union immunity; (iv) Mr Ortíz López, the Vice-President of the SINALTRAINAL Palmira branch, filed an appeal for reinstatement and an appeal against the authorization of his dismissal, but in both cases the initial decision was upheld; and (v) there are currently no labour-related administrative investigations against the enterprise.
4. 144. Lastly, the Government has provided its own observations regarding the allegations contained in the complaint. Regarding the alleged failure to deduct the union dues of non-unionized workers who benefit from the collective agreement signed by SINALTRAINAL, thus violating Colombian legislation, the Government indicates that: (i) the absence of deduction of union dues by the enterprise only affected workers “representing the employer”; (ii) in this regard, the case law of the Supreme Court of Justice excludes employers’ representatives from the benefits of collective agreements; (iii) furthermore, Colombian legislation provides that non-unionized workers can opt out of collective agreements and thus be exempt from paying union dues; (iv) although the labour authorities issued an initial decision to penalize the enterprise, it was revoked on appeal; and (v) the union did not file an appeal with the courts against the aforementioned revocation.
5. 145. Regarding the termination of the employment contracts of Ms Piedrahita and Mr Héctor Fabio Palacio, the Government indicates that: (i) both workers were indeed unfairly dismissed and they therefore received the corresponding compensation; (ii) they both brought their case before the tutela (legal protection) judge to seek their reinstatement; and (iii) although Ms Piedrahita’s appeal was not upheld, Mr Palacio did obtain an order for his reinstatement, which was implemented by the enterprise.
6. 146. As regards the alleged termination of the employment contracts without a valid reason of Fabio Sánchez, Jorge Montoya, Jorge Bermúdez and José Luis Lozano on 7 November 2003, the Government reports that the complainant organization did not supply any documents enabling the facts of these dismissals to be established. Furthermore, regarding the pressure that the enterprise is alleged to have exerted on seven female workers to resign on 17 February 2005, the Government points out that the complainant has not provided any proof of the allegations and that the trade union also refers to the workers’ acceptance of the proposed agreements.
7. 147. Regarding the other contract terminations referred to in the complaint, the Government adds that there is no indication that they have been contested before the courts. The Government considers that, in view of the failure to make use of the remedies available in national law, it cannot be argued that the State has failed to meet its obligations to uphold freedom of association and comply with the corresponding international Conventions. The Government indicates that this reasoning also applies to the meeting held by the enterprise with 30 workers on 11 June 2005, resulting in the signature of documents by the parties, and to the alleged pressure on eight women workers to resign and accept early retirement agreements.
8. 148. Regarding the union membership of workers hired through private employment agencies, the enterprise’s alleged refusal to recognize that membership, and the reported dismissal of those workers, the Government states that: (i) temporary workers have the same right as others to form trade unions; (ii) however, in this specific case, these workers’ right to join the SINALTRAINAL trade union, which operates in the agri-food sector, is debatable, as the enterprise’s position indicates; (iii) this point of contention should be settled by the national courts; and (iv) the complaint and its appendices contain no indication, however, that the trade union has initiated legal proceedings in this regard.
9. 149. Regarding the alleged reduction in the number of union members as a result of the enterprise’s employment policy, the Government indicates that neither the figures submitted by the complainant organization (decrease in the enterprise’s payroll from 230 employees in 2003 to 139 employees in 2010, and a decrease in the number of union members from 148 in 2003 to 94 in 2010) nor the appendices to the complaint indicate that the enterprise has any anti-union policy. In this regard, the Government indicates that the communications sent by the trade union to the enterprise and to the administrative authorities refer to a series of alleged problems, including obstructions against workers in general, violations of collective agreements or dissatisfaction with the failure to hire local workers, but that these do not point to a policy to reduce the number of union members in the enterprise.
10. 150. Regarding the enterprise’s installation of security cameras, the Government states that: (i) the enterprise indicated that the installation of security cameras is part of the workplace security plan and is a requirement for technical certification; (ii) the installation of video cameras does not violate any regulations in Colombia; and (iii) the trade union does not indicate in what way use of the video cameras has violated freedom of association.

C. The Committee’s conclusions

1. 151. The Committee observes that the present case relates to complaints concerning a series of anti-union acts by the enterprise Kraft Foods Colombia SA, including, among others, unjustified dismissals, pressure to resign from employment, assaults and death threats.
2. 152. With regard to the complainant organization’s allegations of death threats against union leaders, the Committee notes the information provided by the Government and its indication that it will continue to provide information on this matter in the context of Cases Nos 1787 and 2761, which deal with complaints concerning acts of violence and threats against trade union leaders and members in Colombia. Observing that the threats reported by the complainant in the present case were made between 20 March and 25 November 2004, a period of time covered by Case No. 1787, which already deals with numerous allegations of threats reported by the complainant, the Committee will examine the allegations of threats reported in the present case in the context of Case No. 1787.
3. 153. The Committee takes note of the enterprise’s reply, which indicates that it was liquidated in 2011 and that it does not have any record of labour-related complaints or administrative investigations related to the allegations. The Committee also notes the Government’s reply, communicated five years after the presentation of the complaint, which indicates in general terms that: (i) the enterprise was liquidated in 2011, and so the termination of all its employment contracts was authorized; (ii) there are no labour-related administrative complaints pending for the enterprise; (iii) a significant number of allegations are not substantiated with documentary evidence; and (iv) in relation to most of the alleged incidents, no use was made of remedies available under national law to attempt to resolve the situation; consequently, the State cannot be accused of violating the principles of freedom of association or the relevant ILO Conventions that the country has ratified.
4. 154. With regard to the specific allegations contained in the complaint, the Committee firstly notes the trade union’s allegation that, in violation of the existing legislation, the enterprise refused to fulfil its legal obligation to collect for SINALTRAINAL the union dues of non-unionized workers who benefited from the collective agreement it had signed and that, despite having initially penalized the enterprise, the Ministry of Social Protection ultimately decided to cancel the penalty. The Committee also takes note of the information provided by the Government to the effect that: (i) non-collection of dues only applied to representatives of the employers, in accordance with the case law of the Supreme Court of Justice; (ii) furthermore, Colombian law allows non-unionized workers to opt out of collective agreements and thus be exempt from paying union dues; and (iii) no appeal was filed against the labour administration’s final decision not to penalize the enterprise. Also, on the basis of the documents provided by the Government, the Committee observes that the enterprise only did not collect union dues from non-unionized workers who had expressly indicated their wish not to pay those dues, which is compatible with the principles of freedom of association. In these circumstances, the Committee will not pursue its examination of this allegation.
5. 155. Concerning the alleged dismissal without a valid reason, on 6 October 2005, of union members Marta Piedrahita and Héctor Fabio Palacio, the Committee notes the Government’s indications that: (i) the two workers were indeed dismissed without a valid reason and they therefore received the corresponding compensation; (ii) they both brought their case before the tutela (legal protection) judge to seek their reinstatement; and (iii) although Ms Piedrahita’s appeal was not upheld, Mr Palacio did obtain an order for his reinstatement, which was implemented by the enterprise. Referring to the legal rulings appended to the complaint, the Committee also observes that Mr Palacio’s reinstatement was not based on the supposedly anti-union nature of his dismissal but on his position as a father and breadwinner. The Committee likewise observes that Ms Piedrahita did not contest her dismissal on the grounds that it violated her right to freedom of association but because she enjoyed extra protection against dismissal as a mother and breadwinner. In these circumstances, the Committee will not pursue its examination of this allegation.
6. 156. The Committee further notes that it has only limited information on the following allegations relating to terminations of employment contracts: (i) on 7 November 2003, the employment contracts of Fabio Sánchez, Jorge Montoya, Jorge Bermúdez and José Luiz Lozano were terminated; (ii) on 17 February 2005, seven administrative workers were put under pressure to sign letters of resignation from their employment; and (iii) eight women members of SINALTRAINAL were put under pressure by the enterprise, which led to their resignation and acceptance of early retirement pensions on 4 June 2005. The Committee observes, in particular, that the complaint does not contain any details indicating that the terminations were anti-union in nature, and that it has received no indication that the alleged contract terminations, which occurred more than ten years ago, resulted in legal actions or labour-related administrative complaints. In these circumstances, the Committee will not pursue its examination of these allegations.
7. 157. As regards the alleged assault on 30 workers, including a number of SINALTRAINAL leaders, by a national police riot squad on 11 June 2005 – the complainant states that this was further to these workers’ refusal to sign letters of resignation from their employment – the Committee notes with deep regret that the Government did not provide in due time any observations in relation to this incident. In this regard, the Committee must firmly remind the Government that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 140].
8. 158. As regards the enterprise’s refusal in February 2007 to recognize the SINALTRAINAL membership of 25 workers employed under contracts signed with temporary work agencies and the subsequent dismissal of 22 workers, the Committee notes the Government’s statement that: (i) although workers employed through temporary work agencies have the right to freedom of association, the right of these workers to become members of SINALTRAINAL as a sectoral trade union could be a point of contention, which should be settled by the courts; and (ii) there is no record that judicial proceedings have been initiated concerning the situation of the 25 workers referred to in the complaint. In this regard, the Committee observes that the complainant does not indicate that either the enterprise’s refusal to recognize the union membership of the abovementioned workers or the dismissal of 22 of them has been the subject of administrative or judicial proceedings. Nevertheless, the Committee wishes to recall that, as indicated in previous cases concerning Colombia (for example, Case No. 2556, 349th Report, March 2008), the legal status of the workers’ employment relationship should not have any effect on their right to join workers’ organizations and participate in their activities and that, accordingly, all workers employed in agri-food enterprises, irrespective of the type of their employment relationship with those enterprises, should have the right to join the trade union organizations representing the interests of the workers in that sector. The Committee requests the Government to ensure the application of this principle in the future.
9. 159. Regarding the enterprise’s alleged strategy of reducing the number of its direct employees in order to weaken SINALTRAINAL, the Committee notes the union’s statement that: (i) the reduction in the enterprise’s workforce from 230 direct employees in 2003 to 139 employees in 2010 was accompanied by a decrease in the number of union members from 148 in 2003 to 94 in 2010; and (ii) the enterprise exerted pressure on workers to stop them from joining the union and hired workers from other localities who had had little contact with the trade union. The Committee also notes the Government’s statement that these figures do not demonstrate the existence of an anti-union policy and that the many communications sent by SINALTRAINAL to the enterprise and to the labour administration from 2003 to 2010, criticizing the lack of local recruitment, make no mention of an enterprise policy aimed at reducing the number of unionized workers. In this regard, the Committee recalls that the Committee can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions. In any case, the Committee can only regret that in the rationalization and staff reduction process, the Government did not consult or try to reach an agreement with the trade union organizations [see Digest, op. cit., para. 1079]. In this regard, the Committee observes that the complainant organization does not refer to any specific events that would indicate that the reduction in the enterprise’s workforce pursued an anti-union objective. This being the case, the Committee will not pursue its examination of this allegation.
10. 160. As regards the installation of security cameras on the enterprise’s premises, including in the areas where the workers have their meals, with the purpose, according to the complainant, of subjecting the workers to quasi-police surveillance, the Committee notes: (i) the enterprise’s indication that the purpose of the video cameras is to ensure the workers’ security; and (ii) the Government’s indication that their installation does not violate any regulations and that the complainant organization does not indicate in what way use of the video cameras has violated freedom of association. Observing that the complainant does not allege any specific anti-union use of the video cameras or that they have been positioned specifically to monitor the workers’ trade union activities, the Committee will not pursue its examination of this allegation.

The Committee’s recommendation

1. 161. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to ensure that all workers, regardless of the legal status of their employment relationship with the enterprise for which they provide services, are free to join trade unions that represent the interests of the workers in their sector of employment.