Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 378, Juin 2016

Cas no 3114 (Colombie) - Date de la plainte: 04-NOV. -14 - Clos

Allegations: The complainant organizations report anti-union dismissals by the Carlos Sarmiento L. & Cia Ingenio San Carlos SA and Providencia Cosecha y Servicios Agrícolas Ltda enterprises, and also the lack of an adequate response from the Government of Colombia

1. 162. The complaint is contained in a communication dated 4 November 2014 from the Single Confederation of Workers of Colombia (CUT) and the “14 June” National Union of the Sugar Industry (SINTRACATORCE) and also in additional communications from SINTRACATORCE dated 25 May and 11 September 2015.
2. 163. The Government sent its observations in a communication dated 14 December 2015.
3. 164. 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 complainants’ allegations

1. 165. After recalling that Mr Henry González López, Mr Jesús Vélez Villada and Mr Carlos Libiter Naranjo, workers of the Carlos Sarmiento L. & Cia Ingenio San Carlos SA enterprise (hereinafter: the sugar enterprise) were murdered between 2004 and February 2009 and that the former head of security of the sugar enterprise was subsequently convicted for his links with paramilitary groups, the complainant organizations allege firstly that the employment contracts of 315 unionized workers at the sugar enterprise were terminated in April 2009, an action that constituted anti-union discrimination.
2. 166. Specifically, the complainants state that: (i) in 2009, the sugar enterprise hired the Human Transition Management consulting firm (hereinafter: the consulting firm), specializing in the termination of employment contracts; (ii) on 4 February 2009, when the collective agreement for 2008–11 signed with the Carlos Sarmiento L. & Cia Workers’ Union (SINTRASANCARLOS) was in force, the consulting firm requested permission from the Ministry of Social Protection to open negotiations and conduct settlement procedures with workers at the sugar enterprise; (iii) on 15 April 2009, in response to that request, the Ministry of Social Protection commissioned a labour inspector from Cundinamarca to intervene in the labour negotiations of the consulting firm; (iv) a few days earlier, on 7 April 2009, the employment of Mr Eufracio Emilio Ruiz Santiago, the president of SINTRASANCARLOS at that time, was terminated by the sugar enterprise through a settlement package; (v) on 15 and 16 April 2009, the workers in the agricultural, electrical, assembly and industrial workshops, the field and general service operators and the harvesting section workers – a total of 315 unionized workers – were summoned to the auditorium of the sugar enterprise for a meeting about changes in the enterprise and their consequences for jobs; (vi) at the meeting it was explained to the workers that their jobs would be terminated and they were required to sign pre-formulated settlement documents which already bore the signature of the delegated labour inspector; (vii) faced with this psychological pressure, some workers signed the settlement documents while those who refused to do so were dismissed immediately; (viii) despite the fact that the labour inspector’s signature was on the documents, she was not present at the aforementioned meetings; (ix) the jobs of the 315 workers whose employment was terminated were outsourced through a contract signed with the IMECOL SA enterprise; (x) taking account of the fact that the employment of six SINTRASANCARLOS union leaders was terminated on 16 April 2009, a general assembly of officers was convened the following day to elect new members to the executive committee; (xi) however, on 18 April 2009, the nine newly elected union officers in turn received letters of dismissal dated 16 April 2009; and (xii) on 28 April 2009, a new union executive committee was appointed under the control of the employer.
3. 167. On the basis of the information presented above, the complainant organizations allege that the sugar enterprise launched a clear campaign of anti-union discrimination. They add that: (i) as a result of the SINTRASANCARLOS trade union coming under the control of the employer, the workers whose jobs were terminated were without protection, with no support from the confederation to which SINTRASANCARLOS is affiliated (the General Confederation of Labour (CGT)) and without the intervention that was due from the public authorities; (ii) a total of 34 judicial actions were brought before the labour courts seeking the invalidation of the settlement documents and the reinstatement of the workers; (iii) the judicial proceedings focused on the legality of the settlements and not on whether or not there was systematic anti-union discrimination; (iv) the Ministry of Social Protection (now the Ministry of Labour) committed irregularities in the supervision of the settlements; and (v) because of the comments made by the consulting firm during the termination process, to the effect that the workers had been “hostile towards the company, towards their colleagues and even towards the city authorities”, none of the 315 workers have been able to find any other formal employment.
4. 168. In a communication dated 15 September 2015, the SINTRACATORCE trade union indicates that it agreed to submit the present case to mediation within the Special Committee for the Handling of Disputes referred to the ILO (CETCOIT). The complainant indicates that a meeting of CETCOIT was due to take place in Cali on 25 August 2015 but the sugar enterprise decided not to take part and so the mediation process was ended before it had even started.
5. 169. In a communication of 25 May 2015, the SINTRACATORCE trade union denounces that the Providencia Cosecha y Servicios Agrícolas Ltda enterprise (hereinafter: the agricultural services enterprise) dismissed five workers on 30 July 2014 who had just been appointed to the El Cerrito branch committee of the SINTRACATORCE trade union, and claims that the dismissals constitute anti-union discrimination.
6. 170. The complainant organization states specifically that: (i) Mr Pablo Roberto Vera Delgado, Mr José Andrés Banguera Colorado, Mr José Manuel Obregón Solis, Mr José Domingo Solis Rentería and Mr Alfaro Cañar had been working at the agricultural services enterprise since 2011; (ii) the five workers joined SINTRACATORCE on 15 July 2014; (iii) on 28 July 2014, by a democratic decision, the aforementioned workers joined the executive committee of the El Cerrito branch of SINTRACATORCE; (iv) on 30 July 2014, the five workers were dismissed by the agricultural services enterprise on the grounds of poor performance at work, even though the workers were unaware of any disciplinary proceedings against them; (v) within the five-day period prescribed by law, the competent labour inspector was notified of the changes to the branch executive committee; and (vi) a sixth worker, Mr Alfonso Criollo, who also joined the aforementioned branch, was not dismissed since he enjoyed greater job security on account of an occupational disease.
7. 171. On the basis of the above information, the complainant maintains that the agricultural services enterprise dismissed the five workers immediately after finding out about their union leadership role, without honouring the trade union immunity to which they were entitled from the time of their appointment. The complainant also states that it brought the following actions in relation to the alleged anti-union dismissals: (i) labour administration complaint submitted to the Ministry of Labour; (ii) action brought before the Office of the Public Prosecutor; and (iii) judicial action in the competent labour courts. The complainant regrets the fact that, a year after their submission, the aforementioned legal actions have not given rise to any concrete result, despite the fact that they relate to violations of fundamental rights.

B. The Government’s reply

1. 172. In a communication dated 14 December 2015, the Government first forwarded the reply of the Carlos Sarmiento L. & Cia Ingenio San Carlos SA enterprise (hereinafter: the sugar enterprise). The sugar enterprise states that: (i) for 70 years, it has provided jobs and social services for the Department of Valle del Cauca; (ii) it maintains relations of trust and respect with SINTRASANCARLOS, as borne out by the signing of collective agreements, the existence of a labour relations committee and the granting of trade union leave; (iii) at the time of the 2009 retirement plan, the sugar enterprise had 483 workers, of whom 349 were unionized; and (iv) the sugar enterprise now has 991 workers, of whom 872 are members of SINTRASANCARLOS.
2. 173. The sugar enterprise also expresses its concern at the fact that the complaint was presented by the SINTRACATORCE trade union, which had no members at the enterprise at the time of the reported events and provides no evidence of the number of former workers of the enterprise who are currently part of its membership. It adds that the alleged events occurred some seven years ago, under a different ownership, which makes it difficult to locate and supply information. It also indicates that it categorically rejects all allegations in the complaint of any link between the enterprise and violent factions seeking to create a climate of anti-union persecution in its midst.
3. 174. In addition, the sugar enterprise refers to the allegations concerning the termination of the employment of 315 workers on 16 and 17 April 2009. The enterprise states that: (i) at no point do the complainants provide information demonstrating that the restructuring process that led to the termination by mutual agreement of the employment contracts was the result of the trade union membership of the workers, which was long-standing and had never given rise to discrimination on the part of the enterprise; (ii) the jobs came to an end because of the termination of the employment contracts with the free and mutual agreement of the parties; and (iii) the 25 rulings issued on this matter by the Colombian courts have upheld the validity of the settlement documents signed with the workers.
4. 175. With regard to the alleged anti-union dismissal of members of the executive committee of SINTRASANCARLOS elected on 17 April 2009, the sugar enterprise rejects the allegation, pointing out that the union’s own documents indicate that there was no general assembly of its officers on 17 April 2009 and that the enterprise did not issue any letters of dismissal on Saturday, 18 April 2009.
5. 176. The sugar enterprise also denies that the workers whose employment was terminated were unable to find any other formal work and points out that the payments made by the enterprise in the form of settlement or compensation were considerably more than the legal minimum (33 per cent more for the workers as a whole while the president of the union received over 600 per cent more than the legally prescribed amount). Lastly, the sugar enterprise states that it did not consider it appropriate to take part in the CETCOIT meeting of August 2015 since the events covered by the complaint had been settled by the courts and the documentation supporting the complaint had been insufficient.
6. 177. The Government provides its own observations below on the allegations in the complaint concerning the sugar enterprise, opening with the statement that the alleged violent acts referred to in the first part of the complaint should be examined in the context of Case No. 2761, which is before the Committee on Freedom of Association.
7. 178. With regard to the termination of the employment of 315 workers at the sugar enterprise on 15 and 16 April 2009, the Government states that: (i) the regional office of the Ministry of Labour in Valle del Cauca reported that in 2009, a total of 98 settlement documents were signed with the sugar enterprise workers; (ii) a representative of the workers submitted a labour administration complaint calling for the settlement documents to be invalidated, whereupon the regional office ruled that the request came within the competence of the courts; (iii) even though CETCOIT made every possible effort to listen to the parties to the dispute with a view to reaching an agreement, the conciliation proceedings scheduled for 25 August 2015 could not go ahead because of the absence of the enterprise, which claimed that the complaint was not accompanied by the necessary appendices to enable a clear analysis; and (iv) CETCOIT remains fully at the disposal of the parties with a view to achieving a positive outcome.
8. 179. With regard to the allegedly illegal nature of the settlement documents signed on 15 and 16 April 2009, the Government states that: (i) the workers filed a complaint against the labour inspector who approved the settlement documents, on the grounds that the aforementioned official who was based in Cundinamarca did not have competence outside her area of jurisdiction; (ii) at first instance, the labour inspector was found guilty of serious disciplinary misconduct and was suspended from duty for three months; (iii) at second instance, it was considered that the official had been empowered to perform her duties on an exceptional basis in a different location from her usual workplace, and hence the penalty imposed was rescinded; (iv) the workers who signed settlement documents applied to the judicial authorities to have the documents declared illegal on the grounds of lack of consent; and (v) in the various rulings at first and second instance issued so far (totalling 14 and 11, respectively), the courts upheld the validity of the settlement documents.
9. 180. The Government adds that in the case of Mr Luis Ignacio Beltrán Viera, who argued in court that his dismissal was contrary to the collective agreement in force and that it had been due to his trade union activity, the courts: (i) considered that there was no clause in the enterprise’s collective labour agreement that limited the employer’s legal capacity to terminate unilaterally an employment contract with compensation; and (ii) using the criteria established by the Constitutional Court in this respect, they found no evidence to support the claim that the worker’s trade union activity had been the cause of his dismissal. The Government also indicates that on this occasion the courts specifically considered that: (i) at the time of the termination of employment, no evidence had been supplied to indicate the total number of workers dismissed or who were union members and who were not; (ii) at the time of the events, there was no collective dispute with the union or renegotiation of the collective agreement; (iii) the union president and several officers opted for reaching a settlement further to the termination of their employment contracts; (iv) the dismissals did not threaten the existence of the union; and (v) throughout the process, it was clear that the enterprise explained that the terminations corresponded to the need for restructuring of the entity to tackle economic problems.
10. 181. The Government concludes that the workers had had the opportunity to bring judicial actions to defend their rights and that in all the rulings issued so far the courts had upheld the legality of the termination of the employment contracts and hence there had been no violation of Conventions Nos 87 and 98 ratified by Colombia.
11. 182. With regard to the allegations of anti-union dismissals at the Providencia Cosecha y Servicios Agrícolas Ltda enterprise (hereinafter: the agricultural services enterprise), the Government firstly forwarded the reply of the agricultural services enterprise, which states as follows: (i) although there is a union presence at the enterprise, no worker at the enterprise is a member of the SINTRACATORCE union, contrary to the claim made by the complainant; (ii) the agricultural services enterprise respects its workers’ right to organize and to engage in collective bargaining, as borne out by the fact that 84.3 per cent of the workers are members of the National Union of Agricultural Industry Workers (SINTRAINAGRO) and collective agreements have been signed with the enterprise covering all its workers; (iii) the dismissal of the four workers who are the subject of the complaint occurred because of their poor performance and without the enterprise having been informed that a branch of SINTRACATORCE had been formed; (iv) despite the abovementioned legitimate grounds for dismissal, the enterprise decided to terminate the employment contracts with compensation; (v) the two labour administration complaints filed by SINTRACATORCE were settled in favour of the enterprise; (vi) a judicial action brought by the five workers is still before the courts; and (vii) all of the above demonstrates the enterprise’s respect for the law.
12. 183. The Government presents its own observations below with respect to the allegations in the complaint concerning the agricultural services enterprise. The Government states that the documentation supplied by both the complainants and the enterprise reveals that: (i) Mr Pablo Roberto Vera Delgado, Mr José Andrés Banguera Colorado, Mr José Manuel Obregón Solis, Mr José Domingo Solis Rentería and Mr Alfaro Cañar were dismissed with the payment of compensation, which looks like a case of dismissal without just cause, despite the enterprise’s statement that the decision was due to the employees’ poor performance; (ii) according to the trade union, the dismissals occurred on 28 July 2014 without there being documentary confirmation of that date; (iii) on 31 July 2014, the changes made to the executive committee of the El Cerrito branch of SINTRACATORCE, with the five abovementioned workers joining that executive committee, were registered with the Ministry of Labour; and (iv) the same day, the Ministry of Labour forwarded to the enterprise the registration of the abovementioned changes.
13. 184. On the basis of the above, the Government states that: (i) the time, manner and place relating to the reported events are insufficiently clear and precise to be able to state beyond doubt that there has been a violation of freedom of association and of Conventions Nos 87 and 98; (ii) recalling that section 371 of the Labour Code provides that changes to an executive committee shall take effect once they have been communicated to the authorities and to the employer, it is unclear why the trade union failed to notify the employer immediately (namely, on 28 July 2014) of the appointment of the five workers to the union’s executive committee; (iii) on the basis of the information received, it is not proven that on the day of the dismissals the employer was aware of the appointment of the five workers to the executive committee and hence there is no proof that their dismissal was on anti-union grounds; (iv) the labour administration complaint for violation of trade union immunity filed by SINTRACATORCE in August 2014 was the subject of a preliminary investigation and then shelved on 14 October 2015 by the regional office of the Ministry of Labour in Valle del Cauca; the appeal filed by SINTRACATORCE against this decision is still pending; and (v) the administrative labour complaint filed by Mr Alejandro López Maya with regard to the abovementioned events was shelved on 5 May 2015 on the grounds that the complaint sought to specify rights and define disputes, something which comes within the competence of the national courts.

C. The Committee’s conclusions

1. 185. The Committee observes that the present case refers to allegations of anti-union termination of employment contracts by the Carlos Sarmiento L. & Cia Ingenio San Carlos SA enterprise (hereinafter: the sugar enterprise) and by the Providencia Cosecha y Servicios Agrícolas Ltda enterprise (hereinafter: the agricultural services enterprise), and also with the lack of an adequate response to the reported events by the Government of Colombia.
2. 186. With regard to the part of the complaint concerning the sugar enterprise, the Committee notes that the complainant organizations, after establishing a context by referring to the murders between 2004 and February 2009 of Mr Henry González López, Mr Jesús Vélez Villada and Mr Carlos Libiter Naranjo, who were workers at the enterprise, and also to the connection of a former head of security of the enterprise with paramilitary groups, focus their allegations and demands on the termination of the employment of 315 workers on 15 and 16 April 2009 through the signing of settlement documents and the dismissal of the workers who refused to sign them. This being the case, the Committee will focus its attention on these allegations, transferring the details provided by the complainants in relation to alleged acts of violence to Cases Nos 1787 and 2761.
3. 187. With regard to the termination of the employment of 315 workers on 15 and 16 April 2009 through the signing of settlement documents and dismissals, the Committee notes the complainants’ specific allegations that: (i) the labour inspectorate committed irregularities in supervising the conclusion of the settlement documents; (ii) the workers were put under pressure to sign the settlement documents; (iii) the 315 workers whose employment was terminated on those dates were all members of the SINTRASANCARLOS enterprise union, which was affiliated to the General Confederation of Labour (CGT); (iv) further to the termination of the employment of several members of the SINTRASANCARLOS executive committee on the previous days, the union membership elected six new executive committee members on 17 April 2009; (v) the following day, the six aforementioned workers received letters of dismissal; (vi) in the days that followed, the enterprise took control of SINTRASANCARLOS, thereby leaving the workers without support from the union; (vii) the courts which ruled on the termination of the employment contracts merely analysed the legality of the settlement documents without considering whether or not the whole termination process was of an anti-union nature; (viii) as a result of being described as “hostile” during the termination of their contracts, none of the 315 workers were able to find any other formal employment; and (ix) the sugar enterprise declined to take part in the conciliation meeting organized by CETCOIT in August 2015.
4. 188. The Committee also notes the replies from the sugar enterprise forwarded by the Government, to the effect that: (i) SINTRASANCARLOS always had a strong presence at the enterprise, with over 72 per cent of the workers among its membership at the time of the events (349 workers) and 88 per cent of the workers at present (872 workers); (ii) the enterprise has always maintained relations of trust with SINTRASANCARLOS, as borne out by the successive collective agreements between the parties up to the present time; (iii) on the other hand, the SINTRACATORCE trade union was not represented at the enterprise at the time of the events; (iv) the termination of the employment contracts in April 2009 arose from the need to restructure the enterprise for economic reasons; (v) the settlement documents were freely signed by the workers, who therefore received financial compensation far greater than the legal minimum; (vi) the fact that all the workers whose employment was terminated were union members is solely due to the high rate of unionization in the enterprise; (vii) the official documentation of SINTRASANCARLOS shows that no new members were elected to the union executive committee on 17 April 2009; (viii) the absence of anti-union discrimination is also demonstrated by the signing of a settlement document by the union president, without that being subsequently called into question by the individual concerned; (ix) the statement that none of the workers whose employment was terminated on 15 and 16 April 2009 was able to find any other formal employment is completely untrue; and (x) the enterprise did not consider it appropriate to take part in the CETCOIT meeting in August 2015 because the events covered by the complaint had been resolved by the courts and there had been insufficient supporting documentation for the complaint.
5. 189. The Committee also notes the Government’s reply, which states that: (i) the accusations of irregularities in the action of the labour inspectorate with respect to the signing of the settlement documents gave rise to disciplinary proceedings; (ii) although the labour inspector who signed the settlement documents was penalized at first instance for lacking the territorial competence to do so, it was considered at second instance that the inspector did have that capacity, and so the penalty concerned was rescinded; (iii) as regards the 34 judicial proceedings initiated by workers whose employment was terminated on 15 and 16 April 2009, all the rulings issued to date upheld the termination of the employment contracts, irrespective of whether settlement documents or dismissals were involved; (iv) in the specific case of Mr Luis Ignacio Beltrán Viera, whose judicial action included the allegation that his dismissal was due to his trade union activity, the courts, on the basis of the criteria established by the Constitutional Court, considered at first and second instance that there was no evidence of anti-union discrimination; and (v) consequently, the events which are the subject of the present allegation do not indicate any violation of Conventions Nos 87 and 98.
6. 190. In the light of the above and recalling that the Committee is not called upon to pronounce upon the question of the breaking of a contract of employment by dismissal except in cases in which the provisions on dismissal imply anti-union discrimination [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 779], the Committee observes that: (i) the complainants and the sugar enterprise agree that the employment contracts of the 315 workers were terminated on 15 and 16 April 2009; and (ii) whereas the complainants assert that the aforementioned terminations are invalid and anti-union in nature, the enterprise and the Government maintain that the terminations formed part of a restructuring process aimed at tackling economic problems. The Committee also notes that although the different parties indicate that all the judicial rulings issued to date (25) have upheld the validity of the contract terminations, the complainants emphasize that the courts have focused on the legality of the settlement documents signed and not on whether or not there has been systematic anti-union discrimination.
7. 191. The Committee observes that the information supplied by the different parties shows that the actions brought at the national level challenging the validity of the employment contract terminations focused on supposed irregularities committed by the labour inspectorate and on the absence of free consent from the workers who signed settlement documents. The Committee notes in particular that: (i) there is no record of the complaints to the Ministry of Labour alleging the existence of anti-union discrimination or the violation of the trade union immunity of the members of the executive committee of the SINTRASANCARLOS trade union; (ii) there is no record of specific judicial actions challenging the anti-union character of the alleged dismissal on 18 April 2009 of six workers who, according to the complainants, had just been appointed members of the SINTRASANCARLOS executive committee; and (iii) of the 34 judicial actions referred to in the complaint, the Committee is only aware of one case – the judicial action brought by Mr Luis Ignacio Beltrán Viera – in which it was alleged, among other things, that the termination of the employment contract was an act of anti-union retaliation.
8. 192. The Committee also observes that, in the case of Mr Luis Ignacio Beltrán Viera, after the first- and second-instance courts closely applied the criteria established by the Constitutional Court of Colombia for determining anti-union discrimination, they found that there was no evidence to show that the dismissal had been on anti-union grounds. In these circumstances, the Committee will not pursue its examination of the dismissal of Mr Luis Ignacio Beltrán Viera.
9. 193. In relation to the other termination of the employment contracts which occurred in April 2009, the Committee observes that the administrative and judicial actions undertaken did not focus on their anti-union character. The Committee takes note of the Government’s indication that, while the conciliation proceedings scheduled for 25 August 2015 before the CETCOIT could not go ahead because of the absence of the enterprise, the CETCOIT remains fully at the disposal of the parties with a view to achieving a positive outcome. In these circumstances, the Committee invites the Government to facilitate the holding of conciliation proceedings before the CETCOIT, assuming this is legally possible, and to keep it informed in this respect.
10. 194. With regard to the part of the complaint relating to alleged anti-union dismissals within an agricultural services enterprise, the Committee notes the complainants’ allegation that: (i) Mr Pablo Roberto Vera Delgado, Mr José Andrés Banguera Colorado, Mr José Manuel Obregón Solis, Mr José Domingo Solis Rentería and Mr Alfaro Cañar, who were workers at the enterprise, joined the SINTRACATORCE trade union on 14 July 2014; (ii) on 28 July 2014, the five workers were appointed members of the El Cerrito branch committee of SINTRACATORCE, an appointment which was communicated to the labour authorities on 31 July 2014, within the legal deadline; (iii) on 30 July 2014, when they were already entitled to trade union immunity, the five workers were dismissed without a valid reason in retaliation for their union leadership role; and (iv) a year after the trade union brought actions before the labour inspectorate, the Public Prosecutor’s Office and the labour courts, the recourse to these bodies has still not given rise to any concrete result.
11. 195. The Committee also notes the reply from the agricultural services enterprise forwarded by the Government, in which the enterprise states that: (i) 84.3 per cent of its workers are members of the SINTRAINAGRO trade union but none of its workers is a member of SINTRACATORCE; and (ii) the dismissal of the five workers who are the subject of the complaint was for poor performance and without the enterprise having been notified of the establishment of the SINTRACATORCE branch committee. Lastly, the Committee notes the Government’s statement that: (i) on 31 July 2014, the changes made to the El Cerrito branch committee of SINTRACATORCE, which now included Mr Pablo Roberto Vera Delgado, Mr José Andrés Banguera Colorado, Mr José Manuel Obregón Solis, Mr José Domingo Solis Rentería and Mr Alfaro Cañar, were registered with the Ministry of Labour; (ii) it is unclear why the trade union failed to notify the employer immediately (namely, on 28 July 2014) of the appointment of the five workers to the union’s executive committee; (iii) on the basis of the information received, it is not proven that on 28 July 2014 (reportedly the day of the dismissals) the employer was aware of the appointment of the five workers to the executive committee and hence there is no proof that their dismissal was on anti-union grounds; (iv) the administrative labour complaint for violation of trade union immunity, filed in August 2014 by SINTRACATORCE, was the subject of a preliminary investigation and then shelved on 14 October 2015 by the regional office of the Ministry of Labour in Valle del Cauca; the appeal filed by SINTRACATORCE against this decision is still pending; and (v) the administrative labour complaint filed by Mr Alejandro López Maya with regard to the abovementioned events was shelved on 5 May 2015 on the grounds that the complaint sought to specify rights and define disputes, something which comes within the competence of the national courts.
12. 196. On the basis of the above information, the Committee observes that the complainant organizations and the Government agree that: (i) Mr Pablo Roberto Vera Delgado, Mr José Andrés Banguera Colorado, Mr José Manuel Obregón Solis, Mr José Domingo Solis Rentería and Mr Alfaro Cañar were dismissed with compensation at the end of July 2014; and (ii) on 31 July 2014, the changes made to the El Cerrito branch committee of SINTRACATORCE, which now included the aforementioned workers as members, were registered with the Ministry of Labour. The Committee also notes that: (i) the complainants maintain that the dismissals constitute a clear act of retaliation in the wake of the election of the workers as trade union officers and that, a year after the filing of several legal actions, the State has still not provided the union officers with due protection; (ii) the enterprise, for its part, claims that the workers were dismissed for poor performance and without it having been informed of their appointment as trade union officers; (iii) the Government considers that it is not possible to determine clearly from the reported facts whether or not there was anti-union discrimination; and (iv) the Government also indicates that an initial labour administrative complaint for violation of trade union immunity was shelved on 5 May 2015 and referred to the labour courts and that a second complaint was shelved on 14 October 2015 after a preliminary investigation, with the appeal filed against the decision to shelve the complaint still pending.
13. 197. In the light of the above, the Committee wishes firstly to recall that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest, op. cit., para. 826]. In this regard, one-and-a half years after the events, the Committee observes that it has not received any information on the action taken by the Office of the Public Prosecutor or by the labour courts with respect to the legal actions which the complainant states that it filed. Moreover, the Committee notes that the Government’s information shows that the decision by the Ministry of Labour to shelve, for lack of competence, one of the labour administrative complaints filed in relation to the dismissals was issued ten months after the events, and that more than one-and-a-half years after the events the second labour administration complaint alleging the violation of trade union immunity is still awaiting a definitive settlement. On the basis of these observations, the Committee trusts that the pending actions and appeals will be processed as quickly as possible and in accordance with the principles of freedom of association. The Committee requests the Government to keep it informed in this respect. Recalling that in certain other cases [see Case No. 2960, 374th Report, paras 267 and 268, and Case No. 2946, 374th Report, para. 251] it has already called for such action from the Government, the Committee requests the Government once again to take the necessary measures to expedite the processing by the Ministry of Labour of the labour administrative complaints relating to trade union rights. The Committee requests the Government to keep it informed in this respect.

The Committee’s recommendations

1. 198. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In relation to the termination of employment contracts of the workers of the sugar enterprise which occurred in April 2009, the Committee invites the Government to facilitate the holding of conciliation proceedings before the CETCOIT, assuming this is legally possible, and to keep it informed in this respect.
   • (b) In relation to the dismissals which occurred in the agricultural services enterprise, the Committee requests the Government to keep it informed of the results of the legal actions still pending before the Ministry of Labour, the Office of the Public Prosecutor and the labour courts in relation to the dismissal of Mr Pablo Roberto Vera Delgado, Mr José Andrés Banguera Colorado, Mr José Manuel Obregón Solis, Mr José Domingo Solis Rentería and Mr Alfaro Cañar.
   • (c) The Committee requests the Government to take the necessary measures to expedite substantially the processing by the Ministry of Labour of the labour administrative complaints relating to trade union rights. The Committee requests the Government to keep it informed in this respect.