Interim Report - REPORT_NO330, March 2003

CASE_NUMBER 2046 (Colombia) - COMPLAINT_DATE: 17-AUG-99 - Closed

Allegations: Dismissals and sanctions inflicted on workers belonging to SINALTRABAVARIA for participating in a strike in the company on 31 August 1999; failure to comply with the collective agreement, refusal to deduct union dues, intimidation of workers to force them to sign a collective agreement, denial of leave for trade union affairs, dismissal of numerous officials and members of various branches and pressure to accept a voluntary retirement plan in the Bavaria S.A. company; non-recognition of the right of SINALTRAINBEC to participate in collective bargaining in the Cervecería Unión company; anti-union persecution against 47 founders of the Colombian Union of Food, Beer, Malt, Drinks, Juices, Refreshments, Mineral Water Workers of Colombia (USITAC)), disciplinary measures to remove the union immunity of Messrs. William de Jesús Puerta Cano, José Evaristo Rodas and other officials of the organization, seizure of trade union information bulletins on the foundation of USITAC and pressure on the workers; mass dismissals due to the restructuring of the Caja de Crédito Agrario into the Banco de Crédito Agrario; dismissal of officials in disregard of their union immunity and failure to comply with orders for the reinstatement by the Caja de Crédito Agrario of certain of these officials; refusal by the Antioquia trade union registry to register the change of SINTRANOEL (an enterprise union) into SINALTRAPROAL (an industry union).

1. 507. The Committee last examined this case at its meeting of March 2002 [see 327th Report, paras. 412-438, approved by the Governing Body at its 283rd Session (March 2002)]. The National Union of Bavaria S.A. Workers (SINALTRABAVARIA) submitted new allegations in communications of 12 June, 27 September and 16 December 2002. The Colombian Union of Beverage Industry Workers (SINALTRAINBEC) submitted new allegations dated 11 April, 15 August and 21 October 2002.
2. 508. The Government sent its observations in communications of 15 February, 9 April, 31 May, 10 July, 19 November and 30 December 2002 and 15 and 20 January 2003.
3. 509. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 510. At its meeting of March 2002, on examining allegations of acts of discrimination and anti-union practices in various companies, the Committee formulated the following recommendations [see 327th Report, para. 438]:
2. – as regards the alleged dismissals of members of SINALTRABAVARIA for having participated in the strike of 31 August 1999, the Committee deplores the fact that despite the time which has elapsed, no decision has been taken in this regard and requests the Government to take measures to expedite the administrative proceedings and to transmit new information in this respect as soon as possible;
3. – as regards the alleged failure to recognize the right of SINALTRAINBEC to participate in collective bargaining in the Cervecería Unión enterprise, and the allegations concerning persecution for having put forward a list of demands, the Committee requests the Government to open the relevant administrative inquiries without delay and to keep it informed in this respect;
4. – the Committee requests the Government to recommend to the recently established Banco Agrario, should it anticipate hiring new workers, to make every effort to rehire as many as possible of the workers and trade union officers who have lost their jobs. The Committee requests the Government to keep it informed in this respect; and
5. – as regards the dismissal of trade union officers, disregarding their trade union immunity, and the failure to carry out the court orders for the reinstatement of some of these officers by the Caja de Crédito Agrario, the Committee urges the Government to take steps without delay to ensure that the court decisions ordering their reinstatement are carried out and requests it to keep it informed of the final outcome of the rest of the judicial proceedings.
6. B. New allegations
7. 511. In its communication of 11 April 2002, the Colombian Union of Beverage Industry Workers (SINALTRAINBEC) indicates that in the face of the anti-union persecution against the members of the union, the Colombian Union of Food, Beer, Malt, Drinks, Juices, Refreshments, Mineral Water Workers (USITAC) was founded in the city of Barranquilla on 16 March 2002. The complainant organization alleges that the company quickly took measures against the 47 founder members, initiating disciplinary measures to remove the union immunity of Messrs. William de Jesús Puerta Cano, José Evaristo Rodas and other officials of the organization (Jorge William Restrepo Tamayo, José Luis Alberto Ruiz Acevedo, Orlando de Jésus Martìnez Cuervo, Humberto Alvarez Muñoz, Omar Ruiz Acevedo, Carlos Alberto Monsalve Luyán, José Heriberto Aguirre and Luis Restrepo Pabón). In addition, the complainant organization alleges that the company seized trade union information bulletins about the foundation of USITAC and threatened the officials so that the bulletins would not be distributed in the company. It alleges that as a result of the company pressure on the workers, eight have left the union and nine have withdrawn through voluntary early retirement. Finally, in its communication dated 21 October 2002, SINALTRAINBEC alleges the refusal to grant William de Jésus Puerta Cano paid leave so that he could attend the Trade Union Training Programme in the United States for which he had been chosen.
8. 512. In its communications of 12 June, 27 September and 16 December 2002, the National Union of Bavaria S.A. Workers (SINALTRABAVARIA) alleges: (i) failure to apply the current collective agreement; (ii) refusal to deduct trade union dues in Cervecería Cali and the Cervecería Aguila company; (iii) intimidation of workers to make them sign a collective agreement, offering money in exchange and barring trade union officers from entering the factories to prevent them from advising the workers; (iv) refusal to negotiate a new collective agreement in Bavaria S.A.; (v) denial of trade union leave; and (vi) dismissal of officers and members of various company branches and pressure to accept a voluntary retirement plan. The complainant organization indicates that in the case of (i) and (ii), separate actions for protection were decided in favour of the workers.
9. 513. In its communication of 12 June 2002, the Nation Union of Food and Dairy Products Workers (SINALTRAPROAL) alleges refusal to register the amendment of the statutes by the Antioquia registration department. In fact, the complainant indicates that on 3 May 1999, the Noel Food Industries was split into two companies: Noel Food Industries S.A. and Noel Biscuit Company S.A. As a result of this, the Union of Noel Workers (SINTRANOEL), an enterprise union which represented the workers in the former Noel Food Company S.A. had to change into an industry union to represent the workers of both companies. The complainant organization alleges that an extraordinary meeting of 23 May 1999 elected a new executive committee and the statutes were amended to change SINTRANOEL, an enterprise union into SINALTRAPROAL, an industry union.
10. 514. The complainant organization points out that in resolution No. 1541 of 2 July 1999 issued by the Chief of the Cundinamarca Territorial Directorate of Trade Union Regulation and Registration, the amendment of the statutes was registered. The complainant organization adds that there followed a series of inconsistent administrative acts by the various parties involved: (1) resolution No. 2123 of 10 September 1999 which refused the action for recourse (reposición) and appeal submitted by Noel Food Industries S.A. and confirms resolution No. 1541; (2) Ministry of Labour resolution No. 2408 of 12 October 1999 which revokes resolution No. 1541 approving the amendment of the statutes; (3) resolution No. 285 of the Cundinamarca Territorial Director of Labour which allowed the appeal by SINALTRAPROAL and revoked resolution No. 2408, once again upholding resolution No. 1541 approving the amendments; (4) actions for protection submitted by the former executive committee of the former SINTRANOEL union (prior to the amendment of the statutes) to the Cundinamarca Division of the Judiciary which was accepted by Decision No. 496 of 4 May 2001; (5) this decision was overturned by Decision No. 9798-02T of 11 September 2001 of the Disciplinary Chamber of the Supreme Council of the Judiciary which again declared resolution No. 1541 applicable. (The complainant encloses a copy of all the abovementioned decisions.) Finally, the complainant states that despite the favourable decision, the Antioquia Territorial Directorate of Labour and Social Security, in resolution No. 2284 of 20 November 2001, refused to register the amendment in the Antioquia register. The complainant entered a new action for recourse (reposición) which was refused in resolutions Nos. 000070 of 25 January 2002 and 524 of 2 April 2002 issued by separate departments of the Ministry of Labour.
11. C. The Government’s reply
12. 515. In its communications of 9 April, 4 June and 10 July 2002 and 15 and 20 January 2003, the Government states as follows:
13. (i) as regards the alleged dismissals and sanctions inflicted on worker members of SINALTRABAVARIA for having participated in a strike in the enterprise on 31 August 1999, the Ministry of Labour and Social Security decided in resolution No. 000222 of 8 February 2002 not to take enforcement measures against the Bavaria S.A. company (since the parties can thus resort to the courts);
14. (ii) as regards the alleged failure to recognize the right of SINALTRAINBEC to participate in collective bargaining in the Cervecería Unión enterprise and the alleged acts of persecution for presenting demands, the Ministry of Labour and Social Security decided in resolution No. 002505 of 11 December 2001 to exonerate the company. An appeal against this resolution was submitted to the Antioquia Territorial Department, which upheld resolution No. 002505 because there had been a collective agreement in the company in force up to 31 August 2002 between Cervecería Unión S.A. and CERVUNION, which is the majority union and because under the applicable law, there can only be one collective agreement in a company. As to the founding of the Colombian Union of Food, Beer, Malt, Drinks, Juices, Refreshments, Mineral Water Workers of Colombia (USITAC), the Government indicates that the registration of this organization has still not been finalized. The Government finally points out that: (1) as concerns the denial of paid leave to Mr. Puerta Cano, the Office of the Human Rights of the Ministry of Labour and Social Security informed the Human Rights Unit of the Attorney-General of this matter for relevant action; and (2) as concerns the alleged persecution of the founding trade union leaders and members of SINALTRAINBEC and USITAC, the same machinery for the defence of fundamental rights is available to them;
15. (iii) as to the allegations concerning the Banco de Crédito Agrario (formerly the Caja de Crédito Agrario), the Ministry of Labour and Social Security arranged a meeting between the Banco de Crédito Agrario and the complainant organization with a view to reaching an agreement, but the meeting did not produce a successful outcome.
16. 516. With respect to the new allegations submitted by SINALTRABAVARIA concerning failure to fulfil the collective agreement, refusal to deduct union dues and intimidation of workers to make them sign a collective agreement, the Government states in its communications of 16 April, 10 September and 30 December 2002:
17. (i) that with a view to dealing with the complaint submitted by SINALTRABAVARIA, it had asked the territorial labour and social security directorates of Santander, Valle and Boyacá to open administrative inquiries into the Bavaria S.A. company. In Santander, the inquiry was quickly concluded. The Government adds that in resolution No. 000089 of 18 March 2002, the coordinator of the Inspection and Surveillance in the Valle Territorial Labour and Social Security Directorate, concluded two administrative inquiries. In the first one, it decided to fine Bavaria S.A. ten times the current minimum wage for breach of the collective agreement and in the second investigation, it left the parties free to resort to the ordinary labour court. Appeals were made against this decision and were decided in Decree No. 0703 of 4 April 2002, action for recourse (reposición), upholding the decision in resolution No. 000089 of 18 March 2002 and granting leave to appeal, the result of which will be notified in due course;
18. (ii) as regards the Boyacá Territorial Labour and Social Security Directorate, the Government states that in resolution No. 000105 of 8 May 2002, it was decided not to impose a sanction on Bavaria S.A. and to leave the parties free to resort to the ordinary labour court. That resolution was upheld;
19. (iii) the Government adds that SINALTRABAVARIA submitted a complaint against Bavaria S.A. for alleged collective dismissal. The parties were summoned to the Tenth Labour Inspection Unit of the Inspection and Surveillance Group on several occasions but the proceedings did not take place because the trade union did not attend at any time;
20. (iv) as regards the request for investigation by SINALTRABAVARIA of the alleged coercion by the company to make the workers accept a collective agreement, the Government states that the Twelfth Labour Inspection Unit initiated an inquiry on 20 November 2002, the trade union did not attend the meeting with the company and thus the inquiry is still in progress. The Fifteenth Labour Inspection Unit is investigating the allegation by SINALTRABAVARIA against Bavaria S.A. concerning the closure of some factories and the alleged collective dismissals, under reference No. 39553 of 14 September 2001, and a decision on the complaint is now pending.
21. 517. With respect to the registration of the SINALTRAPROAL organization, in its communication of 19 November 2002, the Government replies that the Antioquia Territorial Directorate issued resolution No. 2284 of 20 November 2001 refusing registration of the SINALTRAPROAL organization because the former members of the SINTRANOEL executive committee had not consented to the repeal of the administrative act registering them as officers of SINTRANOEL. Consequently, the new executive committee of SINTRANOEL was not recognized and the amendment of SINTRANOEL’s statutes by the new executive committee to change it to SINALTRAPROAL was invalid and could not be registered.

D. The Committee’s conclusions

1. 518. The Committee observes that this case concerns numerous acts of discrimination and anti-union persecution and restrictions on collective bargaining in various companies and institutions.
   • Bavaria S.A. company
2. 519. As regards the alleged dismissals of members of the SINALTRABAVARIA union for having participated in the strike of 31 August 1999, the Committee notes the Government’s information that the Ministry of Labour and Social Security decided in resolution No. 000222 of 8 February 2002 not to institute administrative proceedings against the Bavaria S.A. enterprise, so as to allow the parties to resort to the courts. The Committee requests the Government to take measures to expedite all proceedings that may be initiated and to inform it of any judicial decision that may be issued.
3. 520. With respect to the new and serious allegations submitted by SINALTRABAVARIA concerning failure to apply the collective agreement, the refusal to deduct union dues, intimidation of workers to make them sign a collective agreement and preventing the union from entering the premises to advise workers in that connection, the refusal to allow trade union leave and the dismissal of many officers and members of various branches and pressure to accept a voluntary retirement scheme, the Committee notes the Government’s information that various administrative inquiries were initiated, most of which are in progress. The Committee notes the fine imposed on the company of ten times the current statutory minimum wage for breach of the collective agreement in one of the inquiries conducted by the Valle Territorial Directorate of Labour and Social Security. The Committee requests the Government to take steps to ensure that these inquiries are concluded without delay and to continue to keep it informed of the results thereof. In addition, the Committee notes that the Government states that some inquiries, such as those concerning the alleged mass dismissals and coercion by the company to make the
   • workers accept a collective agreement, cannot be concluded because the trade union does not attend hearings when invited. Given that it cannot verify these statements made by the Government, the Committee cannot pronounce itself in this respect. In these conditions, the Committee requests the complainants to provide their comments in this respect.
   • Cervecería Unión S.A.
4. 521. With respect to the alleged failure to recognize the right of SINALTRAINBEC to participate in collective bargaining in the company, the Committee notes the Government’s information that the Ministry of Labour and Social Security in its resolution No. 002505 of 11 December 2001 exonerated the company from responsibility, and that this decision was upheld by the Antioquia Territorial Directorate because there was already a collective agreement in force in the company up to 31 August 2002 with the majority union SINTRACERVUNION and that under the law, there could not be more than one collective agreement in that situation.
5. 522. As regards the recent allegations of anti-union persecution against the 47 founders of the Colombian Union of Food, Beer, Malt, Drinks, Juices, Refreshments, Mineral Water Workers of Colombia (USITAC) in Barranquilla on 16 March 2002, disciplinary measures to remove the union immunity of Messrs. William de Jesús Puerta Cano, José Evaristo Rodas and other officials of the organization, the seizure of trade union information bulletins about the foundation of USITAC, pressure on the workers which resulted in eight leaving the union and voluntary early retirement of nine of them, and the refusal to grant paid leave in order to attend a trade union training course in the United States, the Committee regrets that the Government merely reported that the registration of USITAC had not yet been finalized and that the Office of the Human Rights of the Ministry of Labour and Social Security informed the Human Rights Unit of the Attorney-General of the denial of leave to Mr. Puerta Cano. The Committee therefore once again reiterates that no person should be prejudiced in his or her employment by reason of his or her trade union membership or legitimate trade union activities, whether past or present [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 690] for carrying out legitimate trade union activities. The Committee requests the Government to fully guarantee the trade union rights of the founders of USITAC. The Committee requests the Government to take measures to conduct an inquiry into these allegations and to send its observations thereon.
   • Caja de Crédito Agrario and Banco de Crédito Agrario
6. 523. With respect to the mass dismissals due to the conversion of the Caja de Crédito Agrario into the Banco de Crédito Agrario, the Committee notes the Government’s information that the Ministry of Labour and Social Security arranged a meeting but that it did not yield a positive outcome. The Committee requests the Government to continue to keep it informed of efforts to find a consensual solution in this regard.
7. 524. As to the dismissal of officers due to failure to recognize their union immunity and failure to comply with the orders for reinstatement of some of those officers by the Caja de Crédito Agrario, the Committee regrets that the Government has not sent its observations thereon and again urges it to take measures without delay to ensure compliance with the court orders for reinstatement. The Committee requests the Government to keep it informed thereof.
   • Noel Food Industries and Noel Biscuit Company S.A.
8. 525. As to the alleged refusal by the Antioquia trade union registry to register the change of SINTRANOEL (an enterprise union) into SINALTRANOEL (an industry union), as a result of the splitting of Noel Food Industries into Noel Food Industries and Noel Biscuit Company S.A. and despite a decision by the Supreme Judiciary Council which approved the change, the Committee notes the Government’s information that the Antioquia Territorial Directorate refused registration because the legal requirement of consent by the executive committee, the former executive committee of SINTRANOEL, recorded in that directorate’s trade union register, had not been met.
9. 526. In this respect, the available documentation shows that the new executive committee (of SINALTRAPROAL, an organization changed into an industry union) is registered in the trade union register of the Cundinamarca department but not in the Antioquia department. However, the former executive committee (of the original company prior to its transformation, SINTRANOEL) continues to be considered legitimate and, according to the Antioquia administrative authority, the consent of the former executive committee of SINTRANOEL is required in order to process the registration. It also appears from the available documentation that this matter has been the subject of a judicial decision in favour of the SINALTRAPROAL executive committee. The Committee recalls the principle whereby in order to avoid the risk of seriously undermining the right of workers to elect their representatives freely, actions whereby the results of elections are contested in labour courts by an administrative authority should not have the effect of suspending the validity of such elections where the final result of the judicial proceedings is not known [see Digest, 4th edition, 1996, para. 404].

The Committee's recommendations

1. 527. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the alleged dismissals of members of SINALTRABAVARIA for having participated in the strike of 31 August 1999, the Committee requests the Government to take measures to expedite all proceedings that may be initiated and to keep it informed of any judicial decision that will be issued.
   • (b) As regards the new and serious allegations by SINALTRABAVARIA concerning failure to apply the collective agreement, the refusal to deduct union dues, intimidation of workers to make them sign a collective agreement and preventing the union from entering the premises to advise workers in that connection, the refusal to allow trade union leave and the dismissal of many officers and members of various branches and pressure to accept a voluntary retirement scheme, the Committee requests the Government to take steps to ensure that these inquiries are concluded without delay and to continue to keep it informed of the outcomes thereof.
   • (c) The Committee requests the complainants to provide their comments concerning the Government’s observations according to which certain investigations cannot be concluded because the complainant organization does not attend hearings.
   • (d) As regards the recent allegations of anti-union persecution against the 47 founders of the Colombian Union of Food, Beer, Malt, Drinks, Juices, Refreshments, Mineral Water Workers of Colombia (USITAC) in Barranquilla on 16 March 2002, disciplinary measures to remove the union immunity of Messrs. William de Jesús Puerta Cano, José Evaristo Rodas and other officials of the organization, the seizure of trade union information bulletins about the foundation of USITAC, pressure on the workers which resulted in eight of them leaving the union, as well as on the denial of paid trade union leave to trade union officer William de Jésus Puerta Cano, the Committee requests the Government to carry out an inquiry into these matters and send its observations thereon; meanwhile, the Committee requests the Government to fully guarantee the trade union rights of the founders of USITAC.
   • (e) With respect to the mass dismissals due to the conversion of the Caja de Crédito Agrario into the Banco de Crédito Agrario, the Committee requests the Government to continue to keep it informed of efforts to find an agreed solution.
   • (f) As to the dismissal of officers due to failure to recognize their union immunity and failure to comply with the orders for reinstatement of some of those officers by the Caja de Crédito Agrario, the Committee again urges the Government to take measures without delay to ensure compliance with the court orders for reinstatement. The Committee requests the Government to keep it informed thereof.
   • (g) As to the alleged refusal by the Antioquia trade union registry to register the change of SINTRANOEL (an enterprise union) into SINALTRAPROAL (an industry union), the Committee notes that there is a judicial decision in favour of the SINALTRAPROAL. The Committee recalls the principle whereby in order to avoid the risk of seriously undermining the right of workers to elect their representatives freely, complaints whereby the results of elections are challenged in labour courts by an administrative authority should not have the effect of suspending the validity of such elections where the final result of the judicial proceedings is not known.