Effect given to the recommendations of the committee and the Governing Body - Report No 342, June 2006

Case No 2046 (Colombia) - Complaint date: 17-AUG-99 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 48. The Committee last examined this case at its meeting in November 2005 [see 338th Report, paras. 91-115]. On that occasion the Committee made the following recommendations on the matters that remained pending.
2. 49. With regard to the alleged dismissal and sanctioning of workers belonging to SINALTRABAVARIA for participating in a strike at the company on 31 August 1999, the Committee took note of the decisions adopted until that time, and requested the Government to continue to take the necessary measures to expedite the ongoing judicial proceedings and to keep it informed of the outcome of the proceedings and of the appeals lodged.
3. 50. In its communication of 23 January 2006, the Government reports on two of the pending trials in which payment of compensation for dismissal has been ordered but asserts that this was not a sanction for participating in the strike of 31 August 1999. The Committee takes note of this information and expresses the strong hope that the Government will take all the measures available to it to ensure that the pending trials are concluded as soon as possible.
4. 51. With regard to the dismissal of trade union officers at the Caja de Crédito Agrario, in disregard of trade union immunity and in contravention of the rulings ordering the reinstatement of a number of these officers, the Committee noted the Government’s statement that, of the total 34 court cases, 18 had been completed; it requested the Government to keep it informed of the outcome of the 16 remaining cases. In that regard, the Government states that it is awaiting the rulings of the various courts involved in the trade union immunity cases and will communicate them to the Committee as soon as they are handed down. The Committee takes note of this information.
5. 52. With regard to the actions taken by the Cervecería Unión to suspend the trade union immunity of William de Jesús Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Committee requested the Government to keep it informed of the final outcome of the appeals. The Committee notes that, according to the Government, in the case of Mr. Puerta Cano, the protection against dismissal that he claimed was denied. As for Mr. Rodas and Mr. Ruiz, the Court of Second Instance has not yet handed down its ruling, and the Government will inform the Committee as soon as a decision has been taken. The Committee takes note of this information and requests the Government to keep it informed of the final outcome of the appeals lodged.
6. 53. With regard to the alleged subsequent unjustified dismissal for gross misconduct of SINALTRAINBEC officials and of founders of the Trade Union of Workers of the Beverages and Foodstuffs Industry (USTIBEA), including William de Jésus Puerta Cano, Luis Fernando Viana Patiño, Edgar Dario Castrillón Munera and Alberto de Jésus Bedoya Riós, the Committee noted the Government’s statement that the Ministry of Social Protection is not competent to initiate an inquiry, which can only be ordered by a judge, and that it would forward information on any appeals that the workers involved might lodge. As to the protection of the rights of officials with trade union immunity under national legislation (sections 485 et seq. of the Labour Code on supervision and monitoring), the Committee was of the view that the administrative authorities hold certain investigative powers that can lead to the imposition of sanctions, without prejudice to the right of the parties involved to lodge an appeal. This was not a question of declaring individual rights or settling disputes, but of carrying out an inquiry into events in order to prevent any infringement of legal provisions (in this specific case, the dismissal of a trade union officer with trade union immunity in the absence of any corresponding judicial authorization) and punishing any offenders, thereby allowing the parties to appeal to the judicial authorities. That being so, the Committee renewed its request to the Government to carry out an investigation into this matter and to keep it informed. In its communication dated 23 January 2006, the Government states that in December 2005 the Office for Cooperation and International Relations sent a request to the Coordinator of the Prevention, Inspection, Supervision and Monitoring Group of the Territorial Directorate of Antioquia to begin an administrative labour inquiry into the company and that it would inform the Committee of its findings. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the inquiry.
7. 54. As regards the closure of the COLENVASES plant, which led to the dismissal of 42 employees and seven trade union leaders without their trade union immunity being waived and without complying with the Ministry of Labour’s ruling authorizing the closure but ordering the company first to comply with clauses 14 and 51 of the collective agreement in force, the Committee notes the Government’s statement that a verdict is still awaited from the Administrative Disputes Tribunal and that the Committee will be informed as soon as it is handed down. The Committee takes note of this information and requests the Government to keep it informed on the matter.
8. 55. As regards the allegations presented by SINALTRABAVARIA concerning the pressure on workers to resign from the trade union, the Committee requested the Government to take the measures necessary to carry out an investigation into the matter within the company and to keep it informed. The Committee notes the communication of October 2005 from SINALTRABAVARIA which refers to these allegations and states that the Government has not carried out any significant investigation. The Committee also notes that, in its communication of 23 January 2006, the Government indicates that the Territorial Directorate of Cundinamarca conducted an administrative labour inquiry and issued resolution No. 00015 of 10 January 2003 in which it did not sanction the enterprise. The Government adds that the Territorial Directorate has again been requested to investigate and that it will inform the Committee of the outcome. The Committee reiterates how important it is for inquiries to be independent and to have the confidence of all parties and requests the Government to keep it informed of the outcome of the investigation initiated.
9. 56. As regards the allegations presented by the Single Confederation of Workers of Colombia (CUT), concerning the refusal of the National Federation of Coffee Growers of Colombia to collect ordinary union dues from workers who are not members of the Trade Union of Workers of the National Federation of Coffee Growers of Colombia and Almacenes Generales de Deposito de Café S.A. (SINTRAFEC) but who benefit from the collective agreement, and concerning the dismissal of several workers on account of their trade union membership and the regular use of labour cooperatives to replace workers on indefinite contracts, despite the fact that this is banned in the collective agreement, the Committee requested the Government to take the necessary steps to ensure that ordinary union dues are collected without delay from non-union workers employed by the National Federation of Coffee Growers of Colombia who benefit from the collective agreement, on behalf of SINTRAFEC, and to carry out an inquiry into the dismissal of several workers on account of their trade union membership, and into the use of labour cooperatives to replace workers on indefinite contracts, despite the fact that this is banned in the collective agreement, and to keep it informed on these matters.
10. 57. Regarding the refusal of the National Federation of Coffee Growers and Almacafé to collect union dues for SINTRAFEC, the Government indicates in its communication of 3 November 2005 that section 400 of the Labour Code provides that trade unions may request employers to collect ordinary and extraordinary dues as long as that decision is taken in a general assembly, by a vote of two-thirds of its members. This is a decision that workers’ organizations take freely and without any involvement of the authorities, and one that must be respected by employers and the administrative and judicial authorities. Since 1961, relations between the National Federation of Coffee Growers and Almacafé and the trade union have been regulated by collective agreements, negotiated every two years, sometimes through awards by arbitration tribunals. In the last 25 years, the collection of extraordinary dues for union members has been subject to a regulatory agreement, except in the Collective Agreement of 1984 and in the Arbitration Award of 1986. Colombian law has regulated the obligations of non-union members when they benefit from the collective agreement between the trade union and the employer, through Decree No. 2351 of 1965, article 39, and its Regulatory Decree No. 1376 of 1966, article 12, which set their contribution at half the ordinary dues payable by unionized workers. The National Federation of Coffee Growers and Almacafé have complied with the request to deduct union dues made to it in accordance with the law. During the period referred to in the claim, no dues or partial dues were collected, either because the relevant rules and regulations provided for in section 400 of the Labour Code had not been complied with and there had been no collective bargaining on the subject, or because the rights of those who should pay the dues were not being respected, particularly those of non-unionized workers, whose obligation is provided for by the law, where they are not willing to make any greater contribution to the union.
11. 58. According to the Government, the trade union’s failure to comply with the rules and regulations stemmed from the extraordinary dues that were not collected from its members in 1984, 1986 and 1987, that the ordinary dues of non-members were double that permitted by law, and that extraordinary dues were not collected from third parties outside the union that had not given their consent to pay them. Hence the union’s claim that employers should not collect the dues, but pay out of their own assets the amounts not collected. The trade union SINTRAFEC lodged a claim in court for a sum of money equal to what they considered had not been collected as union dues; the claim was rejected by the Courts of First and Second Instance as well as by the Supreme Court of Justice.
12. 59. Regarding the termination of the employment contracts of members of SINTRAFEC, the Government notes that, according to information sent by the Federation, of 125 members of SINTRAFEC seven left by mutual agreement (labour conciliation), two died, three came to the end of their fixed-term contracts, two were dismissed for just cause, two were granted an old-age pension, and four were dismissed without just cause, making a total of 20 workers who left the company. The Government refers to another five workers who were dismissed; in two cases their reinstatement has been ordered (one of these has already been reinstated) and the other three are awaiting a court ruling.
13. 60. Regarding the contracts with associated labour cooperatives, the Government reports that the National Federation of Coffee Growers and Almacafé enter into service contracts for activities which, because they entail not physical labour but civilian activities, call for technical and managerial autonomy rather than subordination. For occasional, incidental or casual labour, recruitment may also be through temporary work enterprises, as provided for by the Labour Code. Temporary workers are also employed to replace staff on holiday, on maternity or sick leave and to cope with increased production, transport, sales of products or merchandise, harvest time for coffee beans, when they may be taken on for six months, renewable. The Government has on a number of occasions explained that article 333 of the Constitution provides for economic freedom, which should be understood as the freedom of people to engage in economic activities in order to maintain or increase their assets, though always within reason and in such a way as to be compatible with other people’s rights. In exercising this freedom, enterprises can make contracts with associated labour cooperatives in order to be more efficient, more productive and more competitive.
14. 61. The Government adds that since 2001 the National Federation of Coffee Growers and Almacafé has, on its own initiative, been encouraging dialogue with SINTRAFEC, with a view to improving labour relations, promoting coexistence and establishing a system of cordial business relations, and has invited the union to work together with it in to enhance their collective wealth in terms of productivity, competitiveness and employability, as a vital component of a commercial enterprise. The Committee takes note of this information.
15. 62. With regard to the allegations presented by the National Trade Union of Industrial Workers in the Production, Manufacture and Processing of Food and Dairy Products (SINALTRAPROAL), concerning the refusal to register union members elected to the executive board of SINTRANOEL, to register the change of status of SINTRANOEL from a company-based union to an industry-based union (SINALTRAPROAL), and to register the new members of SINTRANOEL’s executive board following the break-up of Industrias Alimenticias Noel into two separate companies, Compania Galletas Noel S.A. and Industrias Noel S.A., on the grounds that, according to the Council of State, workers in the employ of one of the companies cannot sit on the executive board of the trade union of the other company and that the change of the company trade union into an industry organization is not valid because it happened after the company split in two, the Government states that it has to respect the decision made by the Council of State, which is the highest judicial authority with the power to examine decisions made by the administrative authority. The Committee takes note of this information.
16. 63. Regarding the communication of the Single Confederation of Workers of Colombia (CUT) dated 15 February 2006, the Committee regrets that the Government has not sent its observations on the matter and requests it to do so without delay. The Committee also requests the Government to keep it informed of all the judicial decisions and administrative inquiries referred to in the preceding paragraphs which remain pending, namely: the actions taken by Cervecería Unión to have the trade union immunity of various union officials waived and the corresponding legal appeals; the inquiry into the dismissal without cause of SINALTRAINBEC officials and founders of the Trade Union of Workers of the Beverages and Foodstuffs Industry (USTIBEA); the inquiry into the closure of the COLENVASES plant, which led to the dismissal of 42 employees and seven trade union leaders without their trade union immunity having been waived and without complying with the Ministry of Labour’s resolution authorizing the closure but ordering the company first to comply with clauses 14 and 51 of the collective agreement in force; the inquiry into the allegations presented by SINALTRABAVARIA concerning the pressure on workers to resign from the trade union.