Interim Report - Report No 111, 1969

Case No 546 (Colombia) - Complaint date: 20-JAN-68 - Closed

1. 64. The complaint of the Trade Union Movement of Cundinamarca (Asicun) is contained in two communications of 20 January and 2 March 1968, respectively, addressed directly to the ILO. The text of these complaints was communicated to the Government, which sent its observations on 13 November 1968.
2. 65. Colombia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations concerning Measures of Anti-Union Discrimination Taken against Workers of " Mercados y Almacenes Caravana " and the Intervention of the Police in a Strike Held in That Undertaking
  66. 66 In its communication of 20 January 1968 Asicun states that as a result of the submission of a set of claims by the trade union of " Mercados y Almacenes Caravana " the management of this undertaking started a pressure campaign against the workers, which took the form of reprimands, transfers, penalties and dismissals. In view of these acts, the union submitted a complaint to the Ministry of Labour on 27 July 1967, and the Regional Labour Office of the Department of Cundinamarca was made responsible for investigating the acts in question. The complainants state that, although six months had passed since the submission of the complaint and the complaint had been renewed, the investigation has not been completed.
  67. 67 The complainants also state that the undertaking rejected the set of claims submitted and began to engage short-term staff so as to make the union appear to be a minority union. Since no settlement was reached with the undertaking, the workers voted for the calling of a strike. It was only then that the Ministry of Labour intervened, at the request of the employers, and held a number of meetings with the strike committee. These meetings, however, according to the complainants, were only a pretext for delaying negotiations, and it was therefore decided to have recourse to strike action on 24 December 1967 The strike began peacefully; nevertheless, the police intervened and demanded the withdrawal of the banners and placards referring to the strike and insisted that the staff be allowed to enter the establishment. When the President of Asicun refused to withdraw the banners and placards he was arrested by the police, who cleared the entrance of the establishment, seized the banners and placards, and even struck a number of workers and passers-by who had protested against their action. In another of the undertaking's workplaces, where a strike was also taking place, an official of the Ministry of Labour stated that if the strike was not called off the strikers would be taken into custody. The workplace was therefore opened, and this enabled some workers to enter. The complainants maintain that these acts show the hostility of the officials towards the workers and that, in short, the strike was defeated by the police.
  68. 68 The complainants go on to say that the undertaking requested the Ministry of Labour to declare the strike illegal and that the union called for the appointment of an investigator, since the undertaking had infringed trade union rights. The management of the undertaking forced an unfavourable contract on the workers and brought pressure to bear on them and the trade union leaders to leave their organisation. In short, say the complainants, the union has ceased to exist owing to the pressure campaign maintained by the undertaking, while the Ministry of Labour has taken no effective measures against the acts complained of. The complainants send with their letter substantial documentation mentioning the specific cases in which the undertaking has allegedly adopted measures of discrimination against the union.
  69. 69 In its communication of 2 March 1968 Asicun, in addition to referring to questions unconnected with the exercise of trade union rights, enlarges upon the information given in its first communication. It states that the Ministry of Labour called for confirmation of the complaint made by the union, and that this step was taken by the secretary of the union and the President of Asicun. It also sends a report from the Office of the Attorney-General, dated 24 January 1968, which was drawn up following a complaint addressed to it of inefficiency on the part of the Regional Labour Office at Cundinamarca. The report states that an inspection carried out established that the complaint of 27 July 1967 was not referred to the inspector for him to carry out the necessary investigation until 22 September 1967. The inspector sent it back on 13 October claiming that he had other investigations to carry out and requesting that another official should be designated. This was done on 28 November 1967, and since then no progress had been made with the matter.
  70. 70 In its reply of 13 November 1968 the Government refers to the allegations concerning the investigation requested on 27 July 1967 and the allegedly improper behaviour of the authorities in the strike called by the union. In respect of the first matter, the Government states that when the complaint had been received the necessary procedure was set in motion but that the investigation could not be carried out during the second half of 1967 because the complainants had not confirmed their document of complaint. The Ministry of Labour therefore had to stress to the President of Asicun the need for the members of the last managing committee of the union to carry out the necessary formality. Despite this, the president of the union never came forward to confirm the complaint. The President of Asicun undertook to find the members of the staff who had been dismissed, punished or coerced. When the investigation had been completed, the Ministry gave its decision in the case on 24 July 1968, absolving the undertaking from the charges made against it alleging infringement of the right to organise, on the grounds that the acts complained of had not been fully proved.
  71. 71 With regard to the intervention of the authorities in the strike called by the union, the Government states that, while the national Constitution guarantees the right to strike, it also guarantees other rights, including that of the free movement of persons. Under the Labour Code a strike must be confined to the collective, temporary and peaceful stoppage of work. If the strike is carried out in a way that infringes the rights of persons unconnected with the strikers, the authorities, and especially the police, must intervene, for Decree No. 2351 of 1965 makes the police responsible for such preventive and suppressive action as is necessary " to ensure that the strikers and any persons connected with the strikers do not depart from the lawful purposes of the strike or attempt to make use of it to promote unrest or commit offences ". The Government explains that the strike came under this provision, since the workers involved did not confine themselves to vacating their workplace peacefully but endeavoured to prevent the entry of the staff, at the same time hindering the free movement of passers-by. This infringement, the Government points out, is recognised implicitly by the complainants in their complaint. The allegation made against an official of the Ministry of Labour to the effect that he had threatened the strikers with the intervention of the police if they did not call off the strike is inexact, since the official in question confined himself, as was his duty, to verifying the existence of the strike, which he reported to his superiors.
  72. 72 The Committee observes that this is basically a case of two types of allegation, concerning, on the one hand, measures of discrimination taken by the employer against trade unionists and those sympathising with the trade union organisation and, on the other, interference by the authorities, which, the complainants maintain, is contrary to the exercise of the right to strike.
  73. 73 With regard to the allegations of the first type, the Committee recalls the importance that it has always attached to the principles contained in Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in accordance with which workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment, and more particularly against acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.
  74. 74 The Committee observes that the Labour Code of Colombia contains various provisions protecting the right of workers to organise. Thus, section 59 (4) prohibits employers from exercising any form of pressure on workers in their exercise of this right: section 354 lays down that in accordance with the provisions of section 309 of the Penal Code no person shall interfere with the right to organise in trade unions, the payment of a fine being prescribed in the event of contravention of this rule; section 405 and the following sections, which relate to trade union privilege, grant special protection to the founders of a trade union, to trade union leaders and to workers involved in a collective dispute. Decree No. 3378 of 1962 contains detailed provisions defining the various acts by the employer that are considered to be infringements of the right to organise in trade unions.
  75. 75 According to the complaint received, the union of " Mercados y Almacenes Caravana " submitted a memorandum at the end of July 1967 to the Ministry of Labour requesting that an official be designated to investigate a series of acts of anti-union discrimination, a series of acts described with some detail and specifying the persons concerned. From the information supplied by the Government, it appears that only one year later did the Ministry give its decision in this case absolving the undertaking on the ground of insufficient proof of the facts alleged. Meanwhile, according to the complainants, the union had ceased to exist.
  76. 76 The Committee observes that the Government, faced with the specific facts mentioned in the complaint, confines itself to stating that on the basis of the investigation it was decided to absolve the undertaking of the charges brought against it. In this connection, the Committee must point out that one of the principles established in the procedure for the examination of alleged infringements of trade union rights is that, where precise allegations are made, the Committee cannot regard as satisfactory replies from governments which are confined to generalities.
  77. 77 Moreover, the Committee considers that the existence in the legislation of basic provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice. Thus, for example, as was pointed out by the Committee of Experts on the Application of Conventions and Recommendations in its Conclusions of 1959, "it may often be difficult, if not impossible, for a worker to furnish proof " of an act of anti-union discrimination of which he has been the victim. This shows the full importance of Article 3 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which provides that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organise.
  78. 78 The Committee observes that in the present case the procedure before the Ministry of Labour was delayed excessively, as is shown by the report from the Attorney-General's Office, to which reference was made in paragraph 69 above. While expressing no opinion on the existence of acts of anti-union discrimination in the absence of sufficient information thereon, the Committee considers that delays of this type can be particularly prejudicial to the exercise of trade union rights and the normal course of labour relations when it is a matter of action by the authorities to protect these rights in respect of employment. The Committee therefore considers that the requirement of certain formalities such as confirmation by the trade union officers of a complaint made to the Ministry of Labour ought not to constitute a reason for preventing the appropriate measures being taken by the Ministry. In this connection, the Committee must point out, as it did in another case, the importance which should be attached to expeditious proceedings, in the absence of which an offended employee will feel a growing sense of injustice, with consequent harmful effects on industrial relations, and to the risk of violating trade union rights inherent in the absence of expeditious proceedings of this type.
  79. 79 With regard to the second aspect referred to, that is the interference of the authorities in the strike declared by the union, the Committee recalls that it has always applied the principle that allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights, and that on various occasions it has pointed out that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. On the other hand, on the basis of considerations it has expressed previously in comparable cases, the Committee considers that intervention by security forces in cases of necessity should be limited to the maintenance of public order and not restrict the legitimate exercise of the right to strike. With reference to strike pickets, the Committee has stressed the importance it attaches to the principle that pickets acting in accordance with the law should not be subject to interference by the public authorities. The Committee has considered legitimate a legal provision that prohibited pickets from disturbing public order and threatening workers who continued to work.
  80. 80 The Committee observes that in the present case the police intervened to enable persons wishing to work to enter the workplace and to ensure the free movement of passers-by, with the object of guaranteeing freedom to work and public order, respectively.
  81. 81 The police, however, also ordered the withdrawal of the placards and banners referring to the strike, arrested the President of the Trade Union Movement of Cundinamarca when he refused to comply with this order, and then seized these objects themselves. On the same occasion some of the workers and even some passers-by were struck by police officers. These facts, alleged by the complainants, have not been denied by the Government. The Committee considers that although the police may have wished to avoid the occurrence of disorders or other irregularities, the acts mentioned seem to have had the opposite effect and, at any rate, were such as to amount to an infringement of trade union rights in the case of a legal strike. This would also apply to the alleged statement by an official of the Ministry of Labour, concerning the strike in another workplace belonging to the undertaking, to the effect that if the strike were not called off the strikers would be taken into custody. This declaration, however, has been denied by the Government in its reply.
  82. 82 In these circumstances, the Committee recommends the Governing Body:
      • (a) to draw the Government's attention to the principles set forth in the preceding paragraphs concerning measures of anti-union discrimination and the exercise of the right to strike;
      • (b) to suggest to the Government that it should consider the adoption of such measures as may prove necessary to provide an expeditious and effective procedure for the investigation of complaints concerning acts of anti-union discrimination and for the adequate protection of the exercise of trade union rights in respect of employment;
      • (c) to point out to the Government the importance of taking appropriate measures to have instructions issued to the authorities, and especially the police, to avoid the risk of improper intervention in the exercise of the right to strike in accordance with national legislation.
  83. Allegations concerning Acts of Anti-Union Discrimination in the San Diego Hospital
  83. 83 In its communication of 2 March 1968 the complainants allege that the National Association of Assistant Nurses (Analferaux) submitted a set of claims to the management of the San Diego Hospital on behalf of the nurses. On account of this, the management dismissed twenty-three of its members. When a complaint had been lodged concerning these acts of discrimination carried out against the union, the Ministry of Labour ordered an investigation, which has given no result. What is more, the management of the hospital forced the nurses to leave the organisation and to sign an agreement without taking the organisation into account.
  84. 84 The Committee notes that the Government does not refer to this aspect of the complaint in its reply. The Committee, therefore, recommends the Governing Body to request the Government to be good enough to send its observations on the facts alleged by the complaints.

The Committee's recommendations

1. 85. With regard to the case as a whole, the Committee recommends the Governing Body:
2. (1) with regard to the allegations concerning measures of anti-union discrimination against workers of " Mercados y Almacenes Caravana " and the intervention of the police in a strike in this undertaking:
   • (a) to draw the Government's attention to the principles set forth in the preceding paragraphs concerning measures of anti-union discrimination and the exercise of the right to strike;
   • (b) to suggest to the Government that it should consider the adoption of such measures as may prove necessary to provide an expeditious and effective procedure for the investigation of complaints concerning acts of anti-union discrimination and for the adequate protection of the exercise of trade union rights in respect of employment;
   • (c) to point out to the Government, in view of the considerations expressed in paragraph 79 above, the importance of taking appropriate measures to have instructions issued to the authorities, and especially the police, to avoid the risk of improper intervention in the exercise of the right to strike in accordance with national legislation;
3. (2) with respect to the allegations concerning acts of anti-union discrimination in the San Diego Hospital, to request the Government to be good enough to send its observations on the facts alleged by the complainants, on the understanding that the Committee will submit a further report when it has received these observations.
   • Geneva, 26 February 1969. (Signed) Roberto AGO, Chairman.