Definitive Report - Report No 393, March 2021

Case No 3112 (Colombia) - Complaint date: 09-DEC-14 - Closed

Allegations: The complainant organizations allege a series of violations of freedom of association and the right to collective bargaining within an enterprise in the mining sector and several of its contracting enterprises

1. 124. The complaint is contained in the communications of the Single Confederation of Workers of Colombia (CUT) and the National Union of Workers of the mechanical and metal sector, metal industry, metallurgy, railways and marketing undertakings in the sector (SINTRAIME) dated 9 December 2014 and 2 June 2016.
2. 125. The Government sent its observations in communications dated 26 October 2015, 13 February 2018, 12 February 2019, 14 August 2020 and 17 and 23 February 2021.
3. 126. 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. 127. In their first communication of 9 December 2014, the complainant organizations allege the existence of a series of violations against the exercise of freedom of association within the enterprise Drummond Company, Inc., a multinational enterprise in the mining sector (hereinafter referred to as “main enterprise”), and several of its contracting enterprises. The complainant organizations state that: (i) the main enterprise exploits coal in the Pribbenow and El Descanso mines, which are located in the Department of Cesar; (ii) the enterprise General Equipos de Colombia S.A. GECOLSA (hereinafter “contracting enterprise A”) performs equipment maintenance and provides support for mining operations in the mines of the main enterprise; and (iii) the enterprise DIMANTEC LTDA (hereinafter “contracting enterprise B”) performs equipment maintenance and provides support for operations in the main enterprise, but through a commercial contract with contracting enterprise A. The complainant organizations explain that SINTRAIME has a large number of members in contracting enterprise B and, at the time the events took place, there was a collective agreement that had been signed by SINTRAIME and contracting enterprise B that was valid from 1 January 2012 to 31 December 2013 (hereinafter “2012 collective labour agreement”).
2. 128. The complainant organizations state that SINTRAIME submitted a list of demands to contracting enterprise B on 13 December 2013 and allege the initial refusal by contracting enterprise B to negotiate with the union, which led the complainant organizations to submit a complaint to the Ministry of Labour to request its intervention. According to the complainants, from 9 July 2014, after the direct settlement phase had ended, SINTRAIME exercised its right to strike in the various regions of Colombia where it holds a presence. They allege that, after the strike was declared, contracting enterprise B: (i) did not allow trade union leaders to enter to inspect the stamps placed by labour inspectors on the machines and tools used by the striking workers; (ii) brought in workers from other contracting enterprises to replace the striking workers; (iii) impeded the striking workers who worked in the city of Soledad from congregating in front of its premises by continually trying to move them on; (iv) the enterprise, through certain non-unionized supervisors, spread false information on the status of the negotiations between the enterprise and the union and collected signatures calling for an end to the strike; and (v) during the week of 4 to 9 August 2014, the management of the enterprise unlawfully exerted pressure on the workers to vote in favour of ending the strike and convening an arbitration tribunal. Moreover, the complainant organizations state that the vote in favour of ending the strike was characterized by the absence of checks, the participation of staff who were not employed by contracting enterprise B, and the provision of vehicles by the employer to transport voters; furthermore, after the order to resume work had been issued, in August 2014, the employer prohibited SINTRAIME leaders and striking workers from accessing the El Cerrejón worksite.
3. 129. The complainants add that, between 31 July and 5 August 2014, during the work stoppage, flyers were circulated by a criminal organization named “Los Rastrojos” demanding that the union leaders end the strike and resign from the enterprise, in exchange for which no attempt would be made on their lives. They state that, while they reported these acts to the Ministry of Labour, the Office of the Deputy Public Prosecutor for Labour and Social Security Affairs, and the Offices of the Vice President and President of Colombia, the individuals concerned received no State protection.
4. 130. In their communication of 2 June 2016, the complainants allege that the main enterprise engaged in acts of illegal labour intermediation in order to reduce the cost of labour and annul the workers’ trade union rights in relation to the main enterprise. The complainant organizations explain that the Ministry of Labour, through a resolution dated 28 April 2014, imposed a total fine of 3,696,000 Colombian pesos on contracting enterprises A and B for illegal outsourcing of labour; in response, the enterprises concerned lodged an appeal for review. The complainants state that, faced with the penalty, contracting enterprise A changed its corporate purpose and divided its core purposes in December 2014 to create a new enterprise in the mining sector, Relianz Mining Solutions S.A.S. (hereinafter referred to as “contracting enterprise C”), which was thenceforth responsible for assigning contracts to contracting enterprise B. In relation to the appeal for review lodged by the enterprises, the complainant organizations state that, on 3 June 2015, the Ministry of Labour revoked its decision of 28 April 2014 because, while it did recognize the existence of illegal labour intermediation, it ruled that there had been a violation of due process against the enterprises and ordered that the administrative action be redone in its entirety, including the related investigations. The complainant organizations state that, on 3 December 2014, SINTRAIME submitted three complaints of illegal labour intermediation against the main enterprise and contracting enterprises B and C, which were later included in the illegal intermediation investigation. On 20 January 2016, the Ministry of Labour once again brought charges against the main enterprise and contracting enterprises A and B for alleged irregular outsourcing of labour under section 63 of Act No. 1429 of 2010.
5. 131. The complainant organizations also denounce the collective dismissal of workers of contracting enterprise B. They explain that contracting enterprise B announced publicly on 20 October 2015 that contracting enterprise C would terminate the contracts for machine maintenance activities as of 31 December 2015, as the main enterprise had not selected contracting enterprise C in the bidding process for the provision of services and, as a result, the contracts of the workers in contracting enterprise B, including members of SINTRAIME, would be rescinded. It also announced that it would begin a process of transition from contracting enterprise A to the enterprise that had won the bidding process, CHM Minería S.A.S. (hereinafter “contracting enterprise D”). They state that during a meeting held on 14 December 2015 by the Ministry of Labour on the occasion of the collective dismissal, which was attended by leaders of SINTRAIME, contracting enterprise B stated that the non-renewal of contracts was due to the union activities in the enterprise and invited the leaders of SINTRAIME to encourage workers to resign from the enterprise, while contracting enterprise C stated that it was not connected to the issue in any way and that the issue was merely a commercial matter. The complainant organizations denounce that the events described above, although witnessed by the Ministry of Labour, were not recorded in the minutes sent to the central office in Bogotá, in the light of which, on 16 December 2015, SINTRAIME submitted a letter to the Ministry of Labour denouncing the dismissals and anti-union persecution in contracting enterprise B.
6. 132. The complainant organizations maintain that the non-renewal of the commercial contract was motivated by anti-union sentiment, as this action legally ruled out the possibility of carrying over the collective agreement into contracting enterprise D and of members of SINTRAIME being hired by that same enterprise with their labour rights intact. In addition, they state that the Ministry of Labour failed to carry out its inspection and monitoring obligations. The complainant organizations state that, as of 27 May 2016, 360 workers hired by contracting enterprise B had been pressured into signing “voluntary retirement letters”, 185 workers had been dismissed and 135 workers had been hired by contracting enterprise D. They state that, given the seriousness of the facts, the trade union organization submitted a tutela action (writ for the protection of constitutional rights) against the Ministry of Labour for its lack of due diligence in the investigations into the alleged illegal labour intermediation and against contracting enterprise B for its violation of due process with respect to the union members that had been dismissed as part of the collective dismissal. They state that the employment contracts were cancelled without authorization from the Ministry of Labour to proceed with the collective dismissal, which would indicate an anti-union and retaliatory strategy on the part of the enterprise. According to the complainant organizations, the first penalty issued by the Ministry of Labour to contracting enterprises B and C for illegal outsourcing of labour created a climate of anti-union discrimination against members of SINTRAIME. However, the revocation by the Ministry of Labour of that same penalty served as an excuse to carry out collective dismissals that directly affected SINTRAIME members. The complainant organizations assert that the State had a clear obligation to investigate in a diligent manner and to penalize the acts of anti-union discrimination, and emphasize that, despite the fact that the complainant trade union organization submitted several labour complaints, the Ministry of Labour did not penalize any of the actions described.
7. 133. Finally, the complainant organizations state that, in parallel to the above-mentioned facts, on 11 December 2015, contracting enterprise B initiated a process for the dismissal of the workers that had participated in a collective work stoppage between 14 March and 3 April 2013 at the enterprise Trateccol Ltd (hereinafter “enterprise E”). They explain that enterprise E merged with contracting enterprise B on 27 November 2013. As a result of the merger, the 2012 collective labour agreement between SINTRAIME and contracting enterprise B was extended to workers of enterprise E (the agreement in question was valid at that point as the arbitration tribunal had not yet issued the arbitration award). They add that, even though the Labour Appeals Chamber of the Supreme Court of Justice declared the 2013 strike at enterprise E to be illegal on 9 April 2014, contracting enterprise B should nonetheless have respected the dismissal procedure provided for under the 2012 collective labour agreement. According to article 5 of the 2012 collective labour agreement, the enterprise must, in the case of dismissal with just cause, hear the statements within three working days and ensure that the dismissed workers benefit from the minimum guarantees, including due union assistance. They emphasize that: (i) the statement hearings were initiated at least ten days after the Supreme Court of Justice had declared the strike illegal; (ii) the statement hearings were convened in such a way as to prevent the workers from benefiting from the minimum guarantees established under the collective labour agreement, as they were not given enough time to present their defences, familiarize themselves with the accusations, or convene a union committee to support them during the proceedings; (iii) contracting enterprise B did not request immediate intervention from the Ministry of Labour in order to identify the workers that were to be dismissed; and (iv) the enterprise took advantage of the situation to carry out other types of dismissals of unionized workers on such grounds as alleged breach of industrial safety rules and alleged false claims of medical incapacity.

B. The Government’s reply

1. 134. In its communications of 26 October 2015, 13 February 2018, 12 February 2019 and 14 August 2020, the Government conveys its own observations and forwards those of the main enterprise and contracting enterprises A and B. First, in relation to the alleged refusal of contracting enterprise B to negotiate with the union regarding a list of demands, the Government forwards the observations from this same enterprise, which denies the allegation that it refused to negotiate with SINTRAIME regarding a list of demands. According to the enterprise concerned, SINTRAIME submitted a first list of demands on 1 November 2013, which was then withdrawn by the trade union organization on 10 December 2013 following the workers’ decision to convene an arbitration tribunal. That same day, SINTRAIME submitted a new list of demands with minimal changes, and the enterprise informed the Ministry of Labour of this fact in writing so that the Ministry could determine the correct way to proceed and whether the enterprise was obliged to enter into negotiations with respect to the second list. The Government, for its part, maintains that there was no refusal on the part of contracting enterprise B to negotiate with the trade union organization, nor did the enterprise act in bad faith, as the enterprise had just completed a direct settlement phase and was under the false impression that it had no obligation to negotiate anew.
2. 135. Second, the Government forwards the observations of contracting enterprise B in relation to the alleged acts of interference during the strike called by SINTRAIME in July 2014. The enterprise asserts that: (i) the vote held between 26 and 28 June 2014 to determine whether the collective dispute with SINTRAIME should lead to a strike or an arbitration tribunal was flawed: the trade union organization did not allow the Ministry of Labour to provide support for the holding of the vote; an independent and secret location for casting votes was not determined; the ballot box was not sealed at the start of the voting day; and some of the enterprise’s workers were not called to vote; (ii) it can be discerned from the records of the Ministry of Labour that, during the series of votes that were held in June 2014, members of SINTRAIME exerted pressure on, issued threats against and engaged in acts of violence towards workers intending to vote in favour of referring the collective dispute to an arbitration tribunal; (iii) from the initiation of the strike on 9 July 2014, leaders of SINTRAIME prevented unionized and non-unionized staff members from entering the premises of the main enterprise and of contracting enterprises A and B; (iv) members of SINTRAIME prevented the staff members of other contracting enterprises from carrying out work, blocked access to the mining projects and premises of the enterprises, and attacked and threatened workers that wanted to work; (v) in the light of the multiple irregularities described, the enterprise submitted a request to declare the strike illegal and, on 16 November 2016, the Labour Appeals Chamber of the Supreme Court of Justice ruled in favour of contracting enterprise B; (vi) at no point were the striking workers replaced; the enterprises using the services of enterprise B simply contracted other enterprises; (vii) with regard to the ending of the strike, the relevant process was undertaken by a group of non-unionized workers that had not been called to vote; (viii) as to the allegations that contracting enterprise B had not granted the majority of workers access to the El Cerrejón worksite after the strike had ended, it denies the complainant organizations’ allegations and states that the persons under valid commercial contracts gained access without issue to complete their work; and (ix) the delay in the convening of the arbitration tribunal was due to the delayed notification by SINTRAIME of its designated arbitrator.
3. 136. The Government also conveys the observations of the Territorial Directorate of the Ministry of Labour of the Department of Atlántico, which states that: (i) from 9 July 2014, the Ministry of Labour sent inspectors with the aim of investigating the dismissals reported by the trade union organization and, in finding that there were no violations of the right to strike, closed the investigation; (ii) as to the allegation that contracting enterprise B had refused to allow the striking workers to congregate in front of the premises of contracting enterprise A, it states that the tents were indeed located on the property of contracting enterprise A and contracting enterprise A asked them to move on because they were preventing access for its workers, but the authorities intervened to ensure that the workers remained on the aforementioned site; and (iii) as to the allegations that the management of contracting enterprise B unlawfully exerted pressure on workers to vote in favour of ending the strike, a resolution dated 15 August 2014 states that labour inspectors were present and had ensured that workers were voting freely and spontaneously and, once it became clear that the workers in contracting enterprise B had voted in favour of ending the strike, the seals were removed, an action of which the leaders of SINTRAIME were informed. The Government maintains that the Ministry of Labour completed the administrative actions requested by SINTRAIME in relation to the alleged refusal to negotiate, proceeded to close down the premises once the strike had been called and formed the arbitration tribunal once the workers had decided to proceed with this option. It also states that the trade union organization concerned did not provide appropriate evidence of the alleged irregularities in the ending of the strike, the formation of the arbitration tribunal, or the alleged violation of the rights to association or collective bargaining.
4. 137. As regards the process of negotiating the second list of demands, the Government states that the Deputy Minister for Labour Relations, through a resolution dated 15 August 2014, ordered the convening of an arbitration tribunal to resolve the dispute between SINTRAIME and contracting enterprise B and, while recognizing the existence of delays, also states that these were due to the resignation of one of the arbitrators and disagreement between the parties on the nomination of a third arbitrator. It further states that, in the ruling dated 8 February 2017, the Supreme Court of Justice dismissed the appeal lodged by the parties against the arbitration award issued by the compulsory arbitration tribunal; and, as a result of this ruling, the enterprise made the payments ordered in the award to workers who were members of SINTRAIME. The Government highlights the fact that, on 22 March 2019, a new two-year collective labour agreement between contracting enterprise B and SINTRAIME was signed and was valid from 1 January 2018 to 31 December 2019.
5. 138. Third, in relation to the alleged threats from the criminal organization named “Los Rastrojos”, the Government forwards the observations of contracting enterprise B, which denies having any involvement with any criminal organization. It also conveys the observations of the National Protection Unit. The National Protection Unit states that it performed a number of actions in favour of SINTRAIME leaders and members: (i) Mr William Eduardo Kerguelen González did not provide the documentation necessary to initiate a protection process, and yet requested the head of the Department of Cesar to perform preventive patrols at his place of residence for a period of four months; (ii) measures were taken to support Mr Rafael Ojeda Castro, Mr Sergio Becerra Moreno and Mr Ismael Avedaño, who were contacted by the Committee of Risk Assessment and Recommendation of Measures (CERREM); (iii) as for Mr Rafael de la Hoz Fontalvo, upon reassessment, his case was found to be pending revision and signature by the director of the CERREM; and (iv) no protective measures were taken for Mr Nelson Enrique Mendoza Jiménez given the assessed level of risk.
6. 139. Fourth, the Government forwards the observations of the main enterprise and contracting enterprises A and B in relation to the allegations of illegal labour intermediation on the part of the aforementioned enterprises in order to evade compliance with labour standards and union rights. The main enterprise states that: (i) the contracting and subcontracting enterprises referenced by the complainants were not formed for the specific purpose of entering into contracts with the main enterprise, these enterprises had an established presence on the market and a robust network of different clients in various areas of activity; (ii) the corporate purpose of the main enterprise is different from those of the contracting enterprises; (iii) the complainant organizations, in stating that SINTRAIME signed a collective agreement with contracting enterprise B, explicitly recognize the quality of the enterprise as an employer and provide evidence that the enterprise’s workers enjoyed the rights to freedom of association and collective bargaining; (iv) the main enterprise does not outsource its core activities, but rather contracts enterprises to maintain and repair some equipment that it uses given the extremely high level of specialization and the particular experience required to perform such work; (v) the contracting enterprises conducted their operations with complete administrative, technical and financial independence without interference from the main enterprise in the hiring of staff for those enterprises; (vi) in 2012, the main enterprise and contracting enterprises A and B were investigated for the first time at the request of SINTRAIME for alleged illegal labour intermediation and, in 2013, the Ministry of Labour ruled for the case to be closed due to lack of grounds for imposing penalties; (vii) in 2014, another investigation was launched for the same reason against the same enterprises as a result of the same complainant, and the Territorial Directorate of Atlántico issued a resolution on 19 October 2015 which absolved the enterprises concerned; (viii) in 2017, unusually, the Ministry of Labour launched another investigation against the main enterprise and, through a new ruling, the enterprise was penalized; (ix) the enterprise submitted appeals and appeals for review to the Ministry of Labour and subsequently submitted an action for annulment and restoration of law to the administrative tribunal against the various rulings issued by the Ministry of Labour; (x) the Administrative Tribunal of Cesar accepted the action in May 2017 and has yet to issue a ruling; and (xi) to date, eight trade unions are active in the enterprise and several collective agreements are valid, which is proof of the enterprise’s respect for freedom of association.
7. 140. In relation to the allegations of illegal labour intermediation, contracting enterprise A states that: (i) the spin-off process that led to the creation of contracting enterprise C had no anti-union purpose, but rather sought to adapt the enterprise to the realities and needs of each of the markets of which it was part, leaving contracting enterprise A with the role of importing machinery and dividing its other core purposes into companies to allow for a simpler, more efficient and better managed operational structure; (ii) since 1 January 2015, all of the enterprises created have been fulfilling their corporate purposes autonomously and independently and have been undertaking their commercial, labour and administrative endeavours as entirely independent legal entities; (iii) contracting enterprise A has not contracted and does not contract activities relating to the permanent core activities of the main enterprise, its role in the value chain is clearly defined, its commercial relations with the main enterprise are limited to the maintenance and repair of certain equipment and machinery that require specialized staff or equipment; (iv) the Territorial Directorate of the Ministry of Labour of Atlántico investigated the facts at the time and released contracting enterprise A and the other defendant enterprises of the charges described; (v) the enterprise has a long and successful history of trade union relations, several trade unions operate within the enterprise and it has excellent worker-employer relations with all of them; and (vi) since 2016, efforts have been made to implement the arbitration award with SINTRAIME, and the trade union has, to date, submitted no claims or complaints to the judicial or labour authorities.
8. 141. Contracting enterprise B indicates, for its part, that SINTRAIME, by explicitly recognizing the content of article 3 of the 2012 collective labour agreement, which states that this enterprise enters into and implements commercial contracts as a regular part of its operations, and having made no observation regarding the impact of that practice on freedom of association, implicitly accepted that those contracts did not violate workers’ rights and recognized the quality of contracting enterprise B as an employer, as well as the inherently entrepreneurial nature of the company. Moreover, it emphasizes that, in a resolution dated 12 October 2017, the Ministry of Labour absolved contracting enterprise B of the penalty imposed in the first instance.
9. 142. In its observations, the Government states that the corporate purposes of the enterprises referred to are completely different, such that the decision by the main enterprise to contract other contracting enterprises did not include any permanent core activities of the main enterprise: (i) the corporate purpose of the main firm is the exploration, transport and mining of coal; (ii) contracting enterprise A is primarily engaged in the marketing and representation of brands of heavy machinery for different sectors; activities carried out directly, with its own organization and administrative and commercial resources, within direct formal employment relationships through the various contractual modalities provided for in labour legislation; (iii) contracting enterprise C specializes in providing services for the maintenance, repair, reconstruction, manufacture, installation and assembly of all types of machinery. The Government indicates that, according to the provisions of article 34 of the Substantive Labour Code, independent contractors are natural or legal persons who are contracted to perform one or several tasks or provide services to benefit third parties for an agreed price, assuming all the risks, using their own means, and with technical and managerial freedom and independence. In addition, it emphasizes that entrepreneurs in Colombia, under article 333 of the Political Constitution, have the right to freedom of enterprise, and entrepreneurs therefore may freely carry out their activity within the limits of the common good. Therefore, enterprises have the authority to work towards fully achieving their corporate purpose and have contractual freedom, as long as they comply with standards that govern decent work, that is, providing all legal guarantees.
10. 143. The Government states, concerning the procedures carried out by the Ministry of Labour with regard to the allegations of illegal labour intermediation, that: (i) on 21 November 2013, the Deputy Minister of Labour Relations and Inspection ordered the Special Investigations Unit to begin a preliminary inquiry into the alleged illegal labour intermediation; (ii) in a resolution dated 27 April 2015, the Coordination of the Special Investigations Unit ordered that contracting enterprises A and B should be penalized for conducting prohibited labour intermediation, a decision that was subsequently challenged by the enterprises; (iii) in a resolution dated 3 June 2015, the Coordination of the Special Investigations Unit rescinded the administrative act, and in its place stipulated that the investigation should be redone in both contracting enterprises; (iv) SINTRAIME submitted administrative complaints to the Ministry of Labour against the main enterprise and contracting enterprises A and B, which were subsequently included in the investigation against the various enterprises; (v) on 8 March 2016, charges were brought once again against the three enterprises under investigation and the administrative procedure for the imposition of penalties was initiated for the enterprises’ alleged use of illegal outsourcing of labour and improper contracting of temporary services; (vi) in a resolution dated 23 September 2016, the administrative authority penalized the main enterprise and contracting enterprises A and B; subsequently the enterprises concerned submitted their respective statements; (vii) in a resolution dated 19 September 2017, the administrative authority settled the appeal for review and ordered the file to be sent to the Directorate of Inspection, Supervision, Monitoring and Territorial Management in order to settle the additional appeal that had been submitted; and (viii) in a resolution dated 12 October 2017, the Ministry of Labour absolved contracting enterprise B from the penalty imposed in the first instance, and that enterprise was absolved of all the complaints relating to the alleged illegal labour intermediation.
11. 144. Fifth, the Government forwards the observations of contracting enterprise B in relation to the alleged anti-union dismissal of workers from this enterprise, from 11 December 2015, as a result of the cancellation of the commercial contract signed between contracting enterprises B and C. In that regard, it states that: (i) the decision of contracting enterprise C to cease to use the services of enterprise B had a serious effect on that enterprise and brought with it financial and administrative difficulties, which disrupted the economic and financial balance of the company and had an impact on the demographic composition of the enterprise’s workforce; (ii) both unionized and non-unionized workers were affected by the cancellation of the commercial contract, which confirms that it was not an act of anti-union discrimination; and (iii) it was a legal cause for termination of employment contracts, insofar as the termination was not based on a unilateral decision of the employer but rather the acceptance of objective facts, outside the enterprise’s control. For its part, the Government states that, as reflected in the different decisions relating to the tutela actions submitted by the workers affected by the termination of employment contracts, the courts considered that the tutela action was not an appropriate mechanism and that the workers should access the ordinary courts; and emphasizes that the complainants did not provide proof that they had resorted to this instance.
12. 145. Sixth, the Government forwards the observations of contracting enterprise B in relation to the dismissal of workers from enterprise E, which later merged with contracting enterprise B; dismissals which, according to the allegations of the complainant organizations, had violated the agreed provisions of the 2012 collective labour agreement and had been anti-union in nature. Contracting enterprise B states that: (i) the ruling handed down by the Supreme Court of Justice declaring the work stoppage that took place between 14 March and 3 April 2013 to be illegal was finalized on 7 December 2015; (ii) the enterprise complied with the obligation set out in Decree No. 2164 of 1959, presenting the labour inspector, in the context of a strike declared to be illegal, with a list of workers who it considered necessary to dismiss for having participated or intervened in the work stoppage; (iii) the procedure set out in the collective labour agreement to arrange statement hearings was complied with for all workers, who were guaranteed their right to defence and to due process; (iv) article 5 of the 2012 collective labour agreement specifies that the statements should be made by the worker within the following three working days, and this timeline was met given that the agreement referred to did not establish a minimum time period in which a hearing was to take place and thus there was nothing to prevent the respective proceedings from being carried out on the same day on which the workers and SINTRAIME were notified; (v) contrary to the allegation made by the complainant organizations, it is reflected in the records of the statement hearings that the workers concerned benefited from the presence, participation and support of trade union leaders; (vi) the alleged facts were presented to the tutela judges, and resolved in favour of contracting enterprise B in both the first and second instance; and (vii) with regard to the claims initiated by some of the workers to demand their reinstatement, contracting enterprise B states that the cases remain pending. For its part, the Government states that, as part of a tutela action being considered by the First Criminal Court which supervises compliance of the municipality of Soledad (Atlántico), that court considered that the trade union body had not been subject to a persecutory attitude, that no proof had been provided of the fact that the dismissed workers had a particularly active role or a leadership role in the trade union, and that the trade union had other appropriate and adequate methods of judicial defence in the ordinary labour courts. With regard to the above, the Government states that the trade union organization did not provide any proof, nor did it have knowledge in this instance, of the fact that the dismissed workers had accessed the ordinary courts, nor did it specify which workers had been dismissed. The Government recalls that the Committee on Freedom of Association has indicated that it is not within its competence to rule on the termination of employment contracts, except where they are alleged to be the result of anti-union discrimination. Regarding the allegation that contracting enterprise B did not request the Ministry of Labour to intervene in order to identify the workers that participated in the work stoppage that has been declared to be illegal, the Government states that the Constitutional Court has ruled that, in order to dismiss a worker who has participated in a work stoppage that has been declared to be illegal, it is not necessary to have followed a prior procedure with the Ministry of Labour. The employer must only complete a prior procedure in order to analyse the behaviour of the employee, guarantee the right to defence and due process, and the Government emphasizes that it is not necessary that that procedure be carried out by the Ministry of Labour. The Government states that contracting enterprise B followed a procedure to dismiss the workers that had participated in the work stoppage, and that, as stated by the trade union organizations in their allegations, the workers were individually notified of their statement hearings and they were individually provided with a date for their hearing, and thus it is proven that the enterprise complied with the prior procedure referred to by the Constitutional Court.
13. 146. By means of additional communications received on 17 and 23 February 2021, the Government first submits updated comments from the contracting enterprises A and B and the main enterprise. The contracting enterprise A, while reiterating its commitment to freedom of association, points out in particular that: (i) it has employees associated with four different trade union organizations, three of them being industrial trade unions and one being a trade union at the enterprise level; (ii) the arbitration award issued on October 1, 2015, following the negotiations with SINTRAIME, which is currently a source of benefits for an employee of the enterprise, remains in force; (iii) the negotiations with SINTRAINDUSTRIA, on the one hand, and SINTRAMETAL, on the other hand, are giving rise to the establishment of arbitration tribunals ; and iv) the trade union of workers of GECOLSA-SEGECSA was founded in October 2019 and its first collective agreement was signed in September 2020. The contracting enterprise B, while reaffirming the full compliance of Conventions Nos 87 and 98, indicates that: (i) it signed a new collective agreement with SINTRAIME for the period from 1 January to 31 December 2020; (ii) the negotiations for the renewal of such agreement were opened on February 11, 2021; (iii) it also signed a collective agreement with the trade union organization SINTRAPCA for the period from April 1, 2017 to March 31, 2020; and (iv) given that the negotiations with SINTRAPCA have not led to a new collective agreement, following SINTRAPCA's decision in this regard and in accordance with the legislation in force, the Ministry of Labour is expected to complete the formation of an arbitration tribunal. The main enterprise states that: (i) there are currently nine union organizations within the enterprise with a unionization rate of 63.86 per cent, which is well above the national average (5 per cent), which demonstrates full respect for freedom of association within the enterprise; (ii) the enterprise has signed collective bargaining agreements with 8 of these organizations.
14. 147. The Government goes on to state that there have been no violations of ILO conventions and principles on freedom of association in the present case, that the various enterprises mentioned-above have collective bargaining agreements in force and that, with respect to the alleged facts, the Ministry of Labour acted diligently in order to ensure respect for labour legislation.

C. The Committee’s conclusions

1. 148. The Committee observes that the present case refers to the allegation of violations of freedom of association in a main enterprise and several of its contracting enterprises operating in the mining sector: contracting enterprise A (mainly, according to the Government, engaged in the marketing and representation of brands of heavy machinery for different sectors and responsible for equipment maintenance and providing support for mining operations in the mines of the main enterprise), contracting enterprise B (responsible for maintenance, repair and construction in the main enterprise, by means of a commercial contract with contracting enterprise A, and subsequently with contracting enterprise C), and contracting enterprise C (which emerged as a result of a spin-off within contracting enterprise A in December 2014). In that context, the Committee observes that the complainants allege the following violations: (i) the refusal of contracting enterprise B to negotiate a new collective labour agreement with SINTRAIME; (ii) as part of a strike action, various acts of interference by contracting enterprise B, including contracting workers to replace striking workers and acts of coercion; (iii) death threats made by a criminal organization against members and leaders of SINTRAIME aimed at putting an end to the strike, and indifference on the part of the public authorities when confronted with this fact; (iv) illegal labour intermediation aimed at reducing the cost of the workforce and preventing the full exercise of trade union rights of workers in the contracting enterprises in relation to the main enterprise; (v) as part of the restructure and cancellation of the commercial contract between contracting enterprises B and C, the massive anti-union dismissal of workers from contracting enterprise B; and (vi) the anti-union dismissal by contracting enterprise B of the trade union members that had participated in a strike in an enterprise that later merged with contracting enterprise B and the violation of the due disciplinary process established in the collective labour agreement of the enterprise.
2. 149. With regard to the alleged refusal by contracting enterprise B to negotiate a new collective labour agreement, the Committee observes that it appears from the information submitted by the parties that, at the time the events took place, there was a collective labour agreement in force that had been signed between SINTRAIME and contracting enterprise B, which was valid from 1 January 2012 to 31 December 2013. It observes that both the complainant organizations and the Government state that: (i) following a first unsuccessful attempt on the part of SINTRAIME to negotiate a first list of demands, the trade union organization submitted a second list of demands to contracting enterprise B in order to negotiate a new collective labour agreement; (ii) between 28 and 30 June 2014, SINTRAIME organized a vote to decide whether the dispute should lead to a strike or an arbitration tribunal; (iii) on 9 July 2014, once all the stages of the direct settlement phase had been exhausted, SINTRAIME initiated a strike; (iv) subsequently, a group of workers voted to end the strike and establish an arbitration tribunal; (v) on 15 August 2015, the Deputy Minister of Labour Relations and Inspection ordered an arbitration tribunal to be convened and, despite various delays attributed to both parties, on 15 February 2016 the arbitration tribunal handed down an arbitration award that would be valid until 31 December 2017. The Committee observes that, subsequently, two collective labour agreements were signed between contracting enterprise B and SINTRAIME, the first was valid from 1 January 2018 to 31 December 2019, the second from 1 January to 31 December 2020, and negotiations are underway to renew it. Since the list of demands referred to in this case led to an arbitration award, the implementation of which was not questioned by the complainant organizations, and that subsequently, new collective labour agreements were signed between the parties, and in the absence of any additional information on the part of the complainants, the Committee will not pursue its examination of this allegation any further.
3. 150. With regard to the allegations of interference by contracting enterprise B in the strike carried out by SINTRAIME between 9 July and 15 August 2014, the Committee observes that: (i) on the one hand, the complainant organizations denounce acts of interference and intimidation following the declaration of a strike on 9 July 2014 (prohibiting representatives of SINTRAIME from accessing the premises of the enterprise, replacing striking workers, and harassing striking workers), as well as during actions aimed at ending the strike (spreading false information about the status of the negotiations between the enterprise and the trade union, collecting signatures to request that the strike should be ended, the management of the enterprise intimidating workers so that they would vote in favour of ending the strike, irregularities during the vote to end the strike, and the employer providing vehicles to transport voters; and when the order was given to resume work, prohibiting striking workers and trade union leaders from accessing the worksite); (ii) on the other hand, contracting enterprise B states that there were irregularities in the vote held between 26 and 28 June 2014 for the workers to decide whether the dispute should lead to an arbitration tribunal or a strike (the fact that the Ministry of Labour did not provide support for the vote, the failure to convene all the workers, and acts of pressure, threats and violence against the workers that wanted to vote for the collective dispute that were all referred to the arbitration tribunal) and that there was an overreach in the exercise of the right to strike (the strikers blocked the access to mining projects and premises of the contracting enterprises for non-unionized workers, threatening the workers that wanted to work); and (iii) the Government states that, at the start of the strike, the Ministry of Labour sent inspectors in order to investigate the allegations submitted by the trade union organization and, on not finding any irregularity, closed the investigation; furthermore, it states that, as reflected in a resolution of the Ministry of Labour dated 15 August 2014, inspectors were present during the vote that ended the strike and were assured that the workers were voting freely and voluntarily. The Committee takes note of the contradictory versions given by the parties regarding the alleged commission of acts of interference and violence during the votes for declaring and ending the strike, as well as during the work stoppage. In addition, the Committee observes that, at the request of contracting enterprise B and in its ruling dated 16 November 2016, the Labour Appeals Chamber of the Supreme Court of Justice declared the strike to be illegal, having considered that, according to the provisions of article 444 of the Substantive Labour Code, the trade union organization, as a minority, should have obtained a majority vote from the workers of the aforementioned enterprise prior to the blockade of operations. Under these circumstances, the Committee will not pursue its examination of this allegation.
4. 151. With regard to the allegation of death threats by a criminal organization named “Los Rastrojos”, the Committee notes the allegations of the complainant organizations, according to which, during the work stoppage that took place between 31 July and 5 August 2014, flyers were circulated demanding that the trade union leaders end the strike and that, despite the fact that those acts were reported to the competent authorities, the threatened leaders had not, as of December 2014, received any protection from the State. The Committee takes note of the list of acts carried out by the National Protection Unit, which was provided by the Government, to benefit Mr Rafael Ojeda Castro, Mr Sergio Becerra Moreno and Mr Ismael Avedaño. In addition, it takes note of the indication that Mr William Eduardo Kerguelen did not provide the documentation required to reactivate the protection and that, with respect to Mr Nelson Enrique, no protection measures had been implemented given the assessed level of risk. Observing that the Government has not provided information regarding whether an investigation was initiated with regard to these death threats, the Committee recalls that the exercise of trade union rights is incompatible with violence or threats of any kind and it is for the authorities to investigate without delay and, if necessary, penalize any act of this kind [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 88].
5. 152. In respect of the allegations concerning illegal labour intermediation, the Committee understands, based on the information provided by the complainant organizations and the Government, that: (i) the contracting enterprises were penalized once on 27 April 2014 for acts of illegal labour intermediation, and the enterprises concerned submitted an appeal for review against that penalty; (ii) in December of that same year, contracting enterprise A changed its corporate purpose and divided its core objectives, creating contracting enterprise C; (iii) in a resolution dated 3 June 2015, the Ministry of Labour ruled on the appeal for review in favour of the enterprises and ordered the corresponding investigations to be redone; (iv) on 20 January 2016, the Ministry of Labour once again brought charges against the main enterprise and the contracting enterprises for illegal labour intermediation; and (v) while a new penalty was initially imposed by the Ministry of Labour (resolution dated 23 September 2016), contracting enterprise B was subsequently absolved (resolution dated 12 October 2017). In the light of the above, the Committee considers it necessary to emphasize that, from the resolutions of the Ministry of Labour and the administrative labour inspection reports submitted by the parties, it is not clear that the actions initiated by SINTRAIME in order to declare the labour intermediation processes to be irregular in nature mean that the alleged anti-union motivation behind those actions exists. The Committee recalls that its competence relates to violations of freedom of association, and not cases of abuse of labour intermediation or the abusive use of temporary contracts, even though many workers may be affected, and that it is only competent to examine allegations made by the complainant union where a connection is established between such cases and the trade union membership or activities of the persons concerned [see Compilation, para. 37]. In view of the above, the Committee will not pursue its examination of this allegation.
6. 153. With regard to the alleged anti-union motivation of the cancellation of the commercial contract signed between enterprises B and C, as well as the anti-union nature of the dismissals that occurred subsequently in enterprise B, the Committee notes that the complainant organizations denounce that, from December 2015, a large number of workers from contracting enterprise B, which had a strong union presence, were dismissed. In addition, it notes that, according to the complainants, the cancellation of the commercial contract sought to remove the legal possibility of the collective labour agreement being carried over to the enterprise that won the bidding process and to prevent members of SINTRAIME from being contracted by the new enterprise with their labour rights intact. The Committee notes that the complainant organizations also allege that: (i) the cancellation of employment contracts took place without the authorization of the Ministry of Labour; (ii) the procedure agreed in the collective labour agreement signed between SINTRAIME and contracting enterprise B was not respected; (iii) the Ministry of Labour’s first decision to issue a penalty for illegal outsourcing of labour had generated a climate of anti-union discrimination against the members of SINTRAIME; and (iv) the Ministry of Labour failed to carry out its inspection and monitoring obligations, having not dealt with the allegation made to that institution on 16 December 2015 concerning anti-union dismissals and persecution as part of the cancellation of the commercial contract signed between contracting enterprises B and C. The Committee takes note of the fact that, for its part, contracting enterprise B states in its observations that the decision made by contracting enterprise C to cancel the commercial contract with enterprise B brought with it significant financial repercussions and that this action affected both its unionized and non-unionized workers. The Committee also takes note that the Government states that: (i) as reflected in the various decisions relating to the tutela actions submitted by the workers affected by the termination of their employment contracts, the courts considered that a tutela action was not the appropriate mechanism, and that the workers should have resorted to ordinary justice; and (ii) the complainants did not provide proof of the fact that they had done so in this case.
7. 154. The Committee takes due note of the various pieces of information provided by the parties. The Committee observes that it appears from a document submitted by contracting enterprise B that: of the 523 workers from that enterprise who took advantage of the voluntary retirement plan, 53 per cent were union members; of the 137 workers who were transferred internally to other operations, 40 per cent were union members; and of the 77 workers who did not take voluntary retirement, 87 per cent were union members. The Committee also takes note that, of the tutela actions submitted by the dismissed workers and conveyed by the parties, there is no evidence of the alleged effect on trade union rights. In the light of this information, the Committee will not pursue its examination of this allegation further.
8. 155. Without prejudice to the foregoing, the Committee observes that SINTRAIME alleges that the Ministry of Labour did not deal with the complaint it submitted on 16 December 2015 concerning anti-union dismissals and persecution as part of the cancellation of the commercial contract signed between contracting enterprises B and C, and that the Government does not state that it has carried out an investigation into those allegations. In this regard, the Committee recalls that, where cases of alleged anti-union discrimination are involved, the competent authorities 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] and trusts that the Government will ensure the full respect of the above.
9. 156. Finally, with regard to the dismissal carried out in December 2015 by contracting enterprise B of trade union members that had participated in a strike in 2013 in an enterprise that later merged with enterprise B and the corresponding allegations of anti-union discrimination and violation of the disciplinary process established by the collective labour agreement, the Committee observes that it is clear from the information and documents provided by the parties that: (i) the Labour Appeals Chamber of the Supreme Court of Justice ruled on 9 April 2014 that the strike carried out by this group of workers was illegal; (ii) it appears from the summons to statement hearings, which have been provided by the Government, that the workers involved were given two days to present themselves to the employer and that two members of the trade union were allowed to be present; (iii) the First Criminal Court which supervises compliance of the municipality of Soledad (Atlántico), on considering a tutela action, ruled on 12 January 2016 that there was no evidence of a persecutory attitude against the trade union body and considered that the case should be referred to the ordinary courts, where the evidence could be extensively assessed in order to determine whether the trade union association was truly affected; and (iv) there is no information about the possible actions brought in the ordinary courts concerning the alleged situation. On the basis of the above, the Committee will not pursue its examination of this allegation any further.

The Committee’s recommendation

1. 157. In the light of its foregoing conclusions, which do not call for further examination, the Committee invites the Governing Body to approve the following recommendation:
2. The Committee trusts that the Government will ensure that, where there are allegations of anti-union discrimination and threats, the competent authorities will immediately investigate and take appropriate measures to remedy the consequences of such acts.