Rapport définitif - Rapport No. 400, Octobre 2022

Cas no 3295 (Colombie) - Date de la plainte: 26-MAI -17 - Clos

Allegations: The complainant organizations allege a series of anti-union acts by a funeral establishment against an industry trade union, including the dismissal of trade union officials and members, interference with the aim of encouraging members to leave the trade union, a ban on demonstrations, bringing legal action to cancel trade union registration and restrictions to collective bargaining

1. 259. The complaint is contained in a communication from the Colombian Association of Funeral and Related Services Industry Workers (ACTIFUN) and the Confederation of Workers of Colombia (CTC) dated 26 May 2017.
2. 260. The Government of Colombia sent its observations on the allegations in two communications dated 23 May 2018 and 30 September 2022.
3. 261. 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. 262. In its communication dated 26 May 2017, the complainant organizations allege that the Funeral Services Cooperative of Cartagena (hereinafter “the enterprise”) committed acts that infringed the right to freedom of association and collective bargaining of the workers affiliated to ACTIFUN, including the dismissal of trade union officials and members, interference with the aim of encouraging members to leave the trade union and banning demonstrations, the lodging of an application by the enterprise to request the cancellation of trade union registration, and restrictions to collective bargaining. The complainant organizations claim that these acts by the enterprise are intended to dismantle and eliminate ACTIFUN.
2. 263. The complainant organizations indicate that ACTIFUN is an industry trade union that was established on 2 February 2014.
3. 264. The complainant organizations state that in November 2014 the enterprise terminated the employment contracts of all the members of the executive committee of ACTIFUN, namely Mr Luis Alberto Cabarcas Taborda, president, Ms Diana Castro Pérez, vice-president, Mr Mariano Ezequiel Diago Severiche, general secretary, Ms Yajaira Rocío Posso Muñoz, legal adviser, Ms Ana María Vázquez Prasca, Ms Dora María Sharp, Ms Berledys Barragán Barreto, Mr Hernán Padilla Cervantes and Ms Indira Mondol Pardo. The complainant organizations appended to their complaint a copy of the letters to terminate the employment contracts, where the grounds are indicated as: (i) in October 2014 a demonstration or rally was conducted by ACTIFUN in the car park of the premises of the enterprise; (ii) the enterprise banned such events on its premises; and (iii) the demonstration caused disruption at a wake organized by the enterprise and sparked violence among the participants at the wake, the enterprise management and the demonstrators. The complaints also indicate that the ordinary labour courts denied the enterprise permission to dismiss Mr Cabarcas Taborda and Mr Diago Severiche, president and general secretary of the trade union, respectively.
4. 265. The complainant organizations state that the enterprise’s systematic policy of persecution and anti-union interference continued, and in May 2017 Mr Diago Severiche, general secretary, was again dismissed without the judicial suspension of trade union immunity, with the enterprise claiming in the letter of dismissal that he did not have trade union immunity because a court had already ordered the dissolution and liquidation of the trade union he represented. Furthermore, in December 2016 the enterprise sent a communication to Mr Cabarcas Taborda, president, notifying him of the application of article 140 of the Substantive Labour Code (CST) to prevent him from entering the enterprise to perform his work and trade union activities, indicating in the communication that: (i) it was due to disrespectful acts, aggression and ill-treatment of the enterprise manager; (ii) the enterprise was not obliged to put up with the “habitual and wrongful intention of meddling” in management decisions; and (iii) the enterprise exempted him from providing his services and would go on paying him all wages and labour entitlements for the duration of the administrative legal proceedings brought against him.
5. 266. They also allege the dismissal of Mr Arnoldo Álvarez Castellar, Ms Sobeida Álvarez Jiménez, Mr Said Bayte Zumaque, Ms Martha García Acosta, Ms Egla Álvarez Muñoz and Mr Ricardo Bellido Hurtado, protected by circumstantial trade union immunity, and Ms Heydys San Juan Florez, a person with a disability and a member of ACTIFUN.
6. 267. The complainant organizations further allege that the enterprise conducted campaigns to discourage trade union membership, offering to pay various benefits to workers in exchange for their withdrawal from the union, which resulted in 15 members leaving the union.
7. 268. The complainant organizations also state that the enterprise engaged in acts of interference to disrupt activities arranged by the trade union, including its ban on holding protest days and meetings.
8. 269. The complainant organizations further allege that the enterprise requested the cancellation of the trade union registration of ACTIFUN on the grounds that it did not have the required number of members. They indicate that while the Fourth Labour Court of the Cartagena Circuit ordered the cancellation of the legal personality of ACTIFUN, an appeal against that ruling is under way.
9. 270. The complainant organizations also allege that their right to collective bargaining was infringed by various actions, including: (i) the enterprise refused to consider viable the lists of demands submitted since they did not result in agreements; and (ii) two years following the submission to the Ministry of Labour of the documentation for the convening of an arbitration tribunal, due to the lack of agreement regarding the first list of demands of March 2014, ACTIFUN was informed that the documentation had been mislaid.

B. The Government’s reply

1. 271. The Government submitted the observations of the enterprise and its own reply to the complainants’ allegations in a communication dated 23 May 2018.
2. 272. The enterprise states, with respect to the dismissal of the members of the executive committee of ACTIFUN, that: (i) all the people mentioned by the complainant organizations committed serious misconduct in the performance of their duties; (ii) those workers were sent letters to terminate their employment contracts and were made aware that the enterprise would be lodging the respective judicial applications for the suspension of trade union immunity, some of which have been decided upon, while others are under way; (iii) it will not give effect to the letters until the labour judge has granted authorization; and (iv) their employment contracts are valid. More specifically, regarding the dismissals of Mr Cabarcas Taborda and Mr Diago Severiche, president and general secretary of the trade union, respectively, the enterprise states that: (i) in the case of Mr Cabarcas Taborda, the enterprise applied article 140 of the CST to the president of ACTIFUN, respecting his trade union immunity, as Mr Cabarcas Taborda verbally assaulted, threatened and challenged the manager of the enterprise, with the enterprise consequently proceeding to lodge labour and criminal proceedings against him; and (ii) with regard to Mr Diago Severiche, general secretary of ACTIFUN, he was dismissed for just cause and he did not benefit from trade union immunity, as at that time the Fourth Labour Court of the Cartagena Circuit had already issued a ruling ordering the dissolution of ACTIFUN.
3. 273. Regarding the dismissals of Mr Arnoldo Álvarez Castellar, Ms Sobeida Álvarez Jiménez, Mr Said Bayte Zumaque, Ms Martha García Acosta, Ms Egla Álvarez Muñoz and Mr Ricardo Bellido Hurtado, the enterprise indicates that they were for just cause, that those workers did not benefit from trade union immunity and that proceedings are under way, just not for Mr Bellido Hurtado, who is working for the enterprise. With regard to the dismissal of Ms San Juan Florez, the enterprise indicates that her dismissal was for just cause, she did not have trade union immunity and she does not have a disability.
4. 274. The enterprise states that it did not conduct campaigns to discourage trade union membership and that the workers submitted their requests to withdraw from ACTIFUN voluntarily. The enterprise also indicates that: (i) it is entitled to respect for private property, and it cannot allow meetings and protests to be held on its premises, particularly in view of the fact that it provides funeral services; and (ii) ACTIFUN can hold meetings or protests away from the premises of the enterprise at its discretion, as long as it does not disrupt the usual running of its activities.
5. 275. The enterprise further states that it brought summary proceedings for the liquidation of ACTIFUN on the grounds of not having the necessary number of members and that the Fourth Labour Court of the Cartagena Circuit ruled in favour of the enterprise.
6. 276. With regard to the collective bargaining process, the enterprise states that it responded to the demands contained in the two lists submitted by ACTIFUN and that the failure to reach agreement does not imply an infringement of the law, which makes provision for a solution to such a situation, as in the case of the convening of an arbitration tribunal.
7. 277. The Government then provides its reply to the allegations of the complainant organizations. It communicates the observations of the Territorial Directorate of the Ministry of Labour of Bolívar with respect to the administrative labour investigations brought by ACTIFUN against the enterprise, indicating that four administrative labour complaints were under way, at various stages, before the Coordinator of Resolution, Conflict and Conciliation of the Technical Directorate.
8. 278. Regarding the alleged anti-union dismissal of the members of the executive committee of ACTIFUN, the Government states that: (i) the enterprise certified that Mr Luis Alberto Cabarcas Taborda, president, Ms Diana Castro Pérez, vice-president, Mr Mariano Ezequiel Diago Severiche, general secretary, Ms Yajaira Rocío Posso Muñoz, legal adviser, Ms Ana María Vázquez Prasca and Mr Hernán Padilla Cervantes still have valid employment contracts, although there is no information available as to whether the last two are members of the executive committee of ACTIFUN; and (ii) Ms Dora María Sharp voluntarily resigned. The Government does not condone the employer’s decision to send letters of termination of employment, making those terminations conditional on the judge’s decision, given that by law the judicial authority shall decide whether or not to grant permission to the employer to terminate an employment relationship of workers who are unionized and protected by trade union immunity, and only then will the employer be in a position to terminate the employment contract or not (articles 405 and 408 of the CST). Consequently, the situation whereby the complainant organizations state that their employment contracts were terminated in 2014 and the enterprise indicates that they are still working for the enterprise is incomprehensible and a matter of concern for the Government.
9. 279. The Government indicates that, with regard to Mr Cabarcas Taborda, president of ACTIFUN: (i) the enterprise applied article 140 of the CST which stipulates that “workers are entitled to receive their wages even if the service is not being provided by order or fault of the employer”; and (ii) the enterprise alleges that there was an assault, which has been brought to the attention of the criminal and labour authorities, and consequently it is necessary to wait and see what is decided. With regard to the alleged dismissal in May 2017 of Mr Diago Severiche, general secretary, the Government indicates that it would have been too early for the enterprise to terminate the employment contract, as the dissolution and liquidation proceedings initiated by the enterprise were still under appeal and it was for the ordinary labour courts to decide.
10. 280. With respect to the dismissal of Mr Arnoldo Álvarez Castellar, Ms Sobeida Álvarez Jiménez, Mr Said Bayte Zumaque, Ms Martha García Acosta and Ms Egla Álvarez Muñoz, the Government indicates that it is for the labour courts to decide whether at the time the employer ordered the termination of the employment contracts the workers in question were covered by circumstantial trade union immunity; consequently the decision must be awaited and the ruling complied with.
11. 281. Regarding the allegations concerning campaigns to discourage trade union membership, the Government states that there is no evidence to confirm the existence of a hostile campaign by the enterprise to encourage ACTIFUN workers to leave the trade union. Furthermore, regarding the alleged acts of interference, the Government states that it is a difficult matter to understand, as the enterprise indicates that the reason for banning protests inside the enterprise is due to the fact that it is a funeral establishment, but the enterprise recognizes the freedom of the trade union to hold such protests away from the premises of the enterprise. The Government indicates that the resolution of the proceedings initiated by the enterprise to dissolve and liquidate ACTIFUN is under appeal.
12. 282. With respect to the alleged infringement of the right to collective bargaining of ACTIFUN, the Government states that it cannot be claimed that a lack of agreement between the parties following collective bargaining is the same as a refusal to negotiate, as the possibility of signing an agreement does not end there, given that labour legislation makes provision for the possibility of convening an arbitration tribunal should assembled workers so decide. With respect to the application to convene an arbitration tribunal submitted by ACTIFUN in June 2014, the Government states that the Territorial Directorate of the Ministry of Labour of Bolívar asked the trade union to submit various documents, which ACTIFUN did not do, and once the respective deadline expired it was understood that the application had been withdrawn by ACTIFUN and it was ordered that the case be closed (Decision No. 2029 of 2 June 2016).
13. 283. In its communication dated 30 September 2022, the Government sent additional information from the enterprise regarding the alleged anti-union dismissal of the members of the executive committee of ACTIFUN, which indicates that: (i) the applications for the suspension of trade union immunity regarding Mr Luis Alberto Cabarcas Taborda, president, Ms Diana Castro Pérez, vice-president, Mr Mariano Ezequiel Diago Severiche, general secretary, Ms Yajaira Rocío Posso Muñoz, legal adviser, Ms Berledys Barragán Barreto, Ms Indira Mondol Pardo, Ms Ana María Vázquez Prasca and Mr Hernán Padilla Cervantes have already been finalized; (ii) these people, who are members of the executive committee, have valid employment contracts; (iii) in the specific case of Mr Cabarcas Taborda, there is no legal action pending against him; and (iv) Ms Dora María Sharp voluntarily resigned.
14. 284. With regard to Mr Said Bayte Zumaque, Mr Ricardo Bellido Hurtado, Ms Egla Álvarez Muñoz and Ms Martha García Acosta, the enterprise indicates that the first three have valid employment relationships with the enterprise and that the employment relationship of Ms García Acosta was terminated for just cause.
15. 285. Regarding the allegation of restrictions to collective bargaining, the enterprise further indicates that, although no collective labour agreement had been concluded, an arbitration award was issued by an arbitration tribunal and covers ACTIFUN and the enterprise, and it remains in force until 31 May 2023.
16. 286. In its communication dated 30 September 2022, the Government provides additional observations with respect to the procedural status of the administrative labour complaints relating to the present case: (i) No. 05636 of 2 September 2016 for the alleged withholding of union dues was closed by the Ministry of Labour, as it was not found that the right to freedom of association had been infringed given that the enterprise made the trade union dues available to ACTIFUN (Decision No. 302 of 25 April 2018); (ii) in No. 07075 of 16 November 2016, for alleged trade union persecution by the enterprise for purported non-compliance in the negotiation process, the enterprise was initially sanctioned (Decision No. 47 of 24 January 2019) and in the appeal for review lodged by the enterprise, the Ministry of Labour revoked the sanction on the grounds that the enterprise did not refuse to bargain collectively, nor did it fail to meet the deadline to start collective bargaining (Decision No. 0549 of 17 May 2019); (iii) in No. 07576 of 13 December 2016, for alleged trade union persecution, a preliminary investigation was opened, which was closed as the Ministry of Labour considered that the initiation of the administrative procedure for the imposition of penalties was not appropriate as ACTIFUN’s claims were outside the jurisdiction of the Ministry of Labour, and ACTIFUN was reminded that it could have recourse to the ordinary courts to resolve the situation (Decision No. 603 of 24 July 2018); and (iv) No. 01757 of 27 March 2017, for the alleged violation of the right to freedom of association, was closed with binding effects.

C. The Committee’s conclusions

1. 287. The Committee observes in the present case that the complainant organizations allege a series of anti-union acts by a funeral establishment against an industry trade union, including the dismissal of trade union officials and members, interference with the aim of encouraging members to leave the trade union, a ban on demonstrations, bringing legal action to cancel trade union registration and restrictions to collective bargaining. The Committee notes that the enterprise denies that anti-union acts took place and emphasizes the existence of an arbitration award that settled the dispute arising from the collective bargaining process, while the Government indicates the resolution of various administrative labour procedures related to the complaint.
2. 288. The Committee notes the allegations by the complainant organizations that claim that the actions carried out by the enterprise are intended to dismantle and eliminate ACTIFUN. The complainant organizations allege the anti-union dismissal in November 2014 of the members of the executive committee of the trade union organization ACTIFUN, namely, Mr Luis Alberto Cabarcas Taborda, president, Ms Diana Castro Pérez, vice-president, Mr Mariano Ezequiel Diago Severiche, general secretary, Ms Yajaira Rocío Posso Muñoz, legal adviser, Ms Ana María Vázquez Prasca, Ms Dora María Sharp, Ms Berledys Barragán Barreto, Mr Hernán Padilla Cervantes and Ms Indira Mondol Pardo. The Committee also notes that the letters of termination of employment indicate that those persons participated in a protest or rally, which are banned by the enterprise on its premises. The Committee notes the information provided by the Government in which it transmits the enterprise’s response that the terminations concerned were due to serious misconduct and that they were subject to the respective judicial authorizations, thus ensuring trade union immunity. The Committee notes the concern expressed by the Government regarding the discrepancies in the statements of ACTIFUN and the enterprise in respect of the dismissals concerned. The Committee notes the Government’s indication that articles 405 and 408 of the CST stipulate that the judicial authority shall decide whether or not to grant permission to the employer to terminate an employment relationship of workers who are unionized and protected by trade union immunity, and only then will the employer be in a position to terminate the employment contract or not. The Committee notes the information from the Government whereby in these judicial proceedings the ordinary labour courts denied the enterprise permission to dismiss Mr Cabarcas Taborda and Mr Diago Severiche, president and general secretary of the trade union, respectively. The Committee also notes the additional information provided by the enterprise and transmitted by the Government in its communication dated 30 September 2022, indicating that the employment relationship of all the members of the executive committee of ACTIFUN mentioned above remain valid, with the exception of the employment relationship of Ms Sharp, who unilaterally terminated her employment relationship.
3. 289. The Committee also notes the allegations by the complainant organizations regarding the anti-union dismissal of Mr Arnoldo Álvarez Castellar, Ms Sobeida Álvarez Jiménez, Mr Said Bayte Zumaque, Ms Martha García Acosta, Ms Egla Álvarez Muñoz and Mr Ricardo Bellido Hurtado, who, according to the complainant organizations, benefited from circumstantial trade union immunity, and of Ms Heydys San Juan Florez, a member of ACTIFUN. The Committee notes the Government’s statement whereby it was within the jurisdiction of the labour courts to decide whether at the time the employer ordered the termination of the employment contracts the workers concerned were covered by circumstantial trade union immunity. Furthermore, the Committee notes the additional information provided by the enterprise and transmitted by the Government on 30 September 2022, indicating that: (i) Mr Bayte Zumaque, Ms Álvarez Muñoz and Mr Bellido Hurtado have valid employment relationships with the enterprise; and (ii) the employment relationship of Ms García Acosta and Ms San Juan Florez were terminated for just cause.
4. 290. The Committee takes due note of these various elements. Regarding the alleged anti-union dismissal of the members of the executive committee of ACTIFUN and of other affiliates, some with circumstantial trade union immunity, it observes that: (i) Mr Cabarcas Taborda, president, Ms Castro Pérez, vice-president, Mr Diago Severiche, general secretary, Ms Posso Muñoz, legal adviser, Ms Vázquez Prasca, Ms Barragán Barreto, Mr Padilla Cervantes and Ms Mondol Pardo, members of the executive committee of ACTIFUN, and the members with circumstantial trade union immunity, Mr Bayte Zumaque, Ms Álvarez Muñoz and Mr Bellido Hurtado, have valid employment relationships with the enterprise; (ii) Ms Sharp voluntarily resigned; and (iii) the employment relationships of Ms García Acosta and Ms San Juan Florez were terminated for just cause. Noting that the employment relationships of the members of the executive committee of ACTIFUN and of the members with circumstantial trade union immunity remain valid, and noting the voluntary resignation and the terminations with just cause of the employment relationships of other members of the executive committee, the Committee will not pursue its examination of these allegations.
5. 291. The Committee observes that it has no further information regarding the cases of Mr Álvarez Castellar and Ms Álvarez Jiménez, who, according to the complainant organizations, were protected by circumstantial trade union immunity. The Committee recalls that in cases of the dismissal of trade unionists on the grounds of their trade union membership or activities, the Committee has requested the Government to take the necessary measures to enable trade union leaders and members who had been dismissed due to their legitimate trade union activities to secure reinstatement in their jobs and to ensure the application against the enterprises concerned of the corresponding legal sanctions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1167]. The Committee requests the Government to take the necessary measures so that the judicial proceedings relating to Mr Álvarez Castellar and Ms Álvarez Jiménez are concluded without delay and that it is determined whether the enterprise engaged in trade union discrimination in the dismissal of these members with circumstantial trade union immunity and, if this is found to be the case, that appropriate sanctions are taken and remedies provided, including reinstatement in the workplace.
6. 292. The Committee further notes that, according to the complainant organizations, in order to prevent Mr Cabarcas Taborda, president of ACTIFUN, from entering the enterprise and performing his work and trade union activities, article 140 of the CST was applied to him, which stipulates that “workers are entitled to receive their wages even if the service is not being provided by order or fault of the employer”. It also notes the information from the complainant organizations indicating that the enterprise, in its communication dated December 2016 to Mr Cabarcas Taborda, indicated to him that: (i) the application of article 140 of the CST was due to disrespectful acts, aggression and ill-treatment of the enterprise manager; and (ii) the enterprise was not obliged to put up with the “habitual and wrongful intention of meddling” in management decisions. While the Committee takes due note of the additional information from the enterprise transmitted by the Government in its communication dated 30 September 2022 regarding the fact that Mr Cabarcas Taborda has a valid employment contract with the enterprise and that there are no judicial proceedings pending against him, the Committee observes the lack of additional information from the enterprise and the Government regarding the current status of the application of article 140 of the CST to Mr Cabarcas Taborda. The Committee recalls that trade union representatives should be granted access to the enterprise and also that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Compilation, para. 1075]. The Committee requests the Government to ensure that Mr Cabarcas Taborda, president of ACTIFUN, is able to fully exercise his trade union activities in the enterprise in accordance with the above-mentioned freedom of association criteria.
7. 293. The Committee notes the allegations of the complainant organizations indicating that the enterprise conducted campaigns to discourage trade union membership, which resulted in 15 members leaving ACTIFUN. The Committee also notes the enterprise’s statement that it did not conduct campaigns to discourage trade union membership and the Government’s indication that it does not have any evidence to be able to confirm the existence of a hostile campaign by the enterprise to encourage members to leave the trade union.
8. 294. The Committee notes at the same time the information provided by the Government regarding the four administrative labour investigations brought by ACTIFUN against the enterprise before the Territorial Directorate of the Ministry of Labour of Bolívar and which have been decided upon as follows: (i) No. 05636 of 2 September 2016 for the alleged withholding of union dues was closed by the Ministry of Labour, as it was not found that the right to freedom of association had been infringed given that the enterprise made the trade union dues available to ACTIFUN (Decision No. 302 of 25 April 2018); (ii) in No. 07075 of 16 November 2016, for alleged trade union persecution by the enterprise for purported non-compliance in the negotiation process, the enterprise was initially sanctioned (Decision No. 47 of 24 January 2019) and in the appeal for review lodged by the enterprise, the Ministry of Labour revoked the sanction on the grounds that the enterprise did not refuse to bargain collectively, nor did it fail to meet the deadline to start collective bargaining (Decision No. 0549 of 17 May 2019); (iii) in No. 07576 of 13 December 2016, for alleged trade union persecution, a preliminary investigation was opened, which was closed as the Ministry of Labour considered that the initiation of the administrative procedure for the imposition of penalties was not appropriate as ACTIFUN’s claims were outside the jurisdiction of the Ministry of Labour and ACTIFUN was reminded that it could have recourse to the ordinary courts to resolve the situation (Decision No. 603 of 24 July 2018); and (iv) No. 01757 of 27 March 2017, for the alleged violation of the right to freedom of association, was closed with binding effects. The Committee observes that the administrative labour procedures were initiated between 2016 and 2017 and that they were resolved between one and two years after their submission to the Ministry of Labour. In this respect, the Committee recalls that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Compilation, para. 1159]. The Committee takes due note of the resolution of the administrative complaints mentioned and will not pursue its examination of this allegation.
9. 295. Regarding the allegations by the complainant organizations relating to the procedure initiated by the enterprise to dissolve and liquidate ACTIFUN for not having the minimum number of members required by law, the Committee observes from publicly available information that, on 5 September 2017, the Labour Chamber of the High Court of the Judicial District of Cartagena decided to revoke the ruling of 5 April 2017 issued by the Fourth Labour Court of the Cartagena Circuit in the summary proceedings and dismissed the claims made by the enterprise in its application. The Committee duly notes this information. While it observes that the application for judicial dissolution of the trade union was made in a context of numerous dismissals of members of its executive committee, the Committee will not pursue its examination of this allegation.
10. 296. The Committee notes the complainants’ allegations with regard to acts of interference by the enterprise to prevent protests and meetings. The Committee also notes the information provided by the enterprise whereby the enterprise’s ban on holding meetings on its premises is due to the funeral services that it provides, but it recognizes the freedom of the trade union to hold such protests or meetings away from the premises of the enterprise.
11. 297. The Committee further observes the contrasting nature of the accounts of the enterprise and the complainant organizations regarding whether or not retaliation occurred for trade union activity in the enterprise. In the light of the above, the Committee recalls that workers should enjoy the right to peaceful demonstration to defend their occupational interests [see Compilation, para. 208]. The Committee also recalls that the right to hold meetings is essential for workers’ organizations to be able to pursue their activities and that it is for employers and workers’ organizations to agree on the modalities for exercising this right [see Compilation, para. 1585]. In view of the above, the Committee invites the Government to bring together the parties concerned in order to establish, by mutual agreement, the arrangements for the exercise of trade union activities, and thus ensure both the effective representation of workers and the efficient functioning of the enterprise.
12. 298. With regard to the alleged violation of the right to collective bargaining, the Committee notes that according to the complainant organizations: (i) the enterprise refused to consider viable the lists of demands submitted; and (ii) this situation led to ACTIFUN submitting to the Ministry of Labour an application to convene an arbitration tribunal, but the Ministry of Labour misplaced the documentation concerned. The Committee notes that, according to the Government: (i) the failure to reach agreement between the parties is not the same as the refusal to negotiate and the possibility of signing an agreement does not end there, as labour legislation makes provision for the possibility of convening an arbitration tribunal should assembled workers so decide; and (ii) with respect to the application to convene an arbitration tribunal submitted by ACTIFUN, the documents required were not submitted and when the deadline expired it was ordered that the case be closed. The Committee also observes that Decision No. 2029 of 2 June 2016 issued by the Ministry of Labour states that “… the trade union organization did not respond to the request … . Consequently, the case will be closed, without prejudice to the interested party subsequently submitting a new application … .” The Committee observes that the decision preserved the rights of ACTIFUN to file subsequent applications in this respect.
13. 299. Lastly, the Committee takes due note of the additional information from the enterprise transmitted by the Government on 30 September 2022, indicating that although no collective labour agreement had been concluded, an arbitration award was issued by an arbitration tribunal and covers ACTIFUN and the enterprise, and it remains in force until 31 May 2023.
14. 300. In the light of the numerous allegations in the present case, the Committee finally invites the Government to take the necessary measures to ensure full respect for freedom of association within the enterprise and to promote dialogue and collective bargaining between the parties concerned.

The Committee’s recommendations

1. 301. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures so that the judicial proceedings relating to Mr Álvarez Castellar and Ms Álvarez Jiménez are concluded without delay and that it is determined whether the enterprise engaged in trade union discrimination in the dismissal of these members with circumstantial trade union immunity and, if this is found to be the case, that appropriate sanctions are taken and remedies provided, including reinstatement in the workplace.
   • (b) The Committee requests the Government to ensure that Mr Cabarcas Taborda, president of ACTIFUN, is able to fully exercise his trade union activities in the enterprise, in accordance with the freedom of association criteria mentioned in its conclusions.
   • (c) The Committee invites the Government, in accordance with the freedom of association criteria mentioned in its conclusions:
     • (i) to bring together the parties concerned in order to establish, by mutual agreement, the arrangements for the exercise of trade union activities, and thus ensure both the effective representation of workers and the efficient functioning of the enterprise; and
     • (ii) to take the necessary measures to ensure full respect for freedom of association within the enterprise and to promote dialogue and collective bargaining between the parties concerned.
   • (d) The Committee considers that this case is closed and does not require further examination.