Informe provisional - Informe núm. 327, Marzo 2002

Caso núm. 1955 (Colombia) - Fecha de presentación de la queja:: 02-MAR-98 - Cerrado

Allegations: Acts of anti-union discrimination

• Allegations: Acts of anti-union discrimination
  345. 345 The Committee last examined these cases at its March 2001 meeting [see 324th Report, paras. 290-302]. The Trade Union of Workers of the Bogotá Telecommunications Enterprise (SINTRATELEFONOS) presented new allegations in a communication dated 20 June 2001.
  346. 346 The Government sent its observations in communications dated 5 April, 4 September and 26 October 2001.
  347. 347 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 cases

1. 348. In its previous examination of these cases, when it considered allegations of acts of anti-union discrimination, the Committee made the following recommendations [see 324th Report, para. 302]:
   • (a) the Committee expressed the hope that the judicial proceedings begun by Ms. Adelina Molina de Cárdenas, dismissed in March 1999, would be concluded in the near future and requested the Government to keep it informed of the result;
   • (b) regarding the judicial proceedings relating to the 23 trade union members dismissed in 1997 from the Bogotá Telecommunications Enterprise (ETB), the Committee urged the legal authorities to come to a decision as soon as possible and requested the Government to ensure that the decision was complied with if it ordered the reintegration of the workers. The Committee requested the Government to keep it informed of the result of the judicial proceedings;
   • (c) the Committee requested the Government to send, without delay, its observations on the following allegations: (1) the disciplinary proceedings that were begun against the entire union executive committee of SINTRATELEFONOS for 1997-99, during which period a list of petitions for 2000-01 was presented; and (2) the dismissal of Ms. Martha Querales and Mr. Jorge Iván Castañeda, members of SINTRATELEFONOS, for reporting corruption among members of the management of the ETB; and
   • (d) the Committee requested the complainants to supply more precise information on whether the trade union officials Mr. Elias Quintana and Mr. Carlos Socha -- dismissed according to the complainants -- were workers of the ETB. As regards the allegations of the dismissal of a member of SINTRAELECOL from the Bogotá Power Company (whose name had not been provided by the complainants), the Committee requested the complainants to indicate the name of this member so that the Government might communicate its observations on the allegation.

B. New allegations by the complainants

1. 349. In its communication of 20 June 2001, the Trade Union of Workers of the Bogotá Telecommunications Enterprise (SINTRATELEFONOS) states that, of the 23 trade union members dismissed on 4 November 1997, the following three trade union officials have not been reinstated; Rafael Humberto Galvis J., President of SINTRATELEFONOS, Rodrigo H. Acosta B., legal adviser for SINTRATELEFONOS and Sandra Patricia Cordero T., press and information secretary. On 11 April 2000, the Constitutional Court, in decision T-418, overturned the ruling of protection (tutela) that ordered the reinstatement of the majority of those workers who had been dismissed by the Bogotá Telecommunications Enterprise (ETB), which had subsequently taken place, with the exception of the trade union official Rodrigo Acosta, who did not benefit from this temporary reinstatement. During this period, Sandra Patricia Cordero T. and Rafael H. Galvis Jaramillo were elected to the new trade union executive committee, but the enterprise refused to acknowledge their trade union privileges and proceeded to dismiss them again.
2. 350. The complainant organization states that the Office of the Procurator-General of the Nation decided, on 20 September 2000, to suspend the sale procedure for the ETB as a result of serious irregularities such as those that have been reported by SINTRATELEFONOS since 1997. This prompted the management of ETB to dismiss the trade union officials and a further 20 workers. The Ministry of Labour and Social Security repealed resolutions Nos. 002286 and 002287 of 9 October 1997, which declared the work stoppages of 1997 illegal, through resolution No. 00864 of 18 May 2001. Therefore, there is no legal argument to support the dismissals of the 23 workers belonging to SINTRATELEFONOS, including the three trade union officials. However, the management of the ETB refuses to reinstate them. The complainant organization points out that continual delays and the inefficiency of the justice system in Colombia have meant that the courts for both the ordinary proceedings and for the special jurisdiction proceedings have not ruled now for three years and seven months. To date, only Jorge Ayala, worker, has been reinstated under Order No. 0282 of the High Court of Cundinamarca and the enterprise has not fully complied with the ruling as it tried to place him in a job that was different from that which he had when he was dismissed. The result of this is that his length of service is not recognized. As can be seen, the employer shows no respect for trade union guarantees and even less for the rights of workers. Hernando Casallas and Hernando López were only temporarily reinstated at the ETB as a result of the protection ruling and these labour issues are to be resolved in the civil courts.
3. 351. According to the complainant organization, justice has also not been done in the other cases. However, Germán Rodríguez, Alfredo Tarazona, Bernardo Hernández, Serafín Gómez, Josué Moisés Carrasco, Orlando Chingate Cabrera, and Guillermo Ferreira have taken early retirement. The proposal by the ETB management that trade union officials Rafael H. Galvis and Rodrigo Acosta Barrios take early retirement and that Sandra Patricia Cordero receive compensation was not accepted by the three trade union officials. Nor was it accepted by ten of their colleagues: Rafael Benítez, Guillermo Blanco, Rafael Guerra, Esmedi Wilson López, José Marino, Juan de la Cruz Páez, Raúl Ramírez, Fernando Rodríguez, Pedro Rojas and Felipe Toledo. Subsequent to the dismissals (4 November 1997), the trade union officials Sandra Patricia Cordero, Rafael Humberto Galvis Jaramillo and Rodrigo Hernán Acosta were subjected to an increase in disciplinary proceedings under Law No. 200 (single disciplinary code) with the aim of proving "presumed just cause" for the dismissals by the ETB. The complainant organization states that Flor Alba Pérez, Gladys Pérez, Jorge Alejandro Sánchez, Alvaro Miguel Vásquez, Arcadio Virviescas and Héctor Parra, workers at the Engativa Office of the ETB, were illegally laid off on 27 January 1999 as a result of supposed administrative restructuring and are still without jobs. This violates the collective agreement in force signed by the ETB and SINTRATELEFONOS. Martha Querales and Jorge Iván Castañeda were dismissed for having reported corruption among members of the enterprise’s management to SINTRATELEFONOS.
4. 352. Six workers from the commercial division (Gustavo Albarracín Villegas, Martha Yaneth Contreras, Ricardo Alberto López, Adelina Molina de Cárdenas, William Alberto Quevedo Ramírez and Amparo Zapata Valderrama) have not been reinstated because of presumed breaches of contract that have been established unilaterally by the enterprise. The complainant organization states in reply to a request from the Committee on Freedom of Association, that Elías Quintana and Carlos Socha have still not been reinstated and used to work for the ETB. They were affiliated with SINTRATELEFONOS, held no official trade union post and were restricted from entering certain areas of the enterprise and from attending meetings with workers from the enterprise, by order of the ETB management. Finally, the complainant organization states that the ETB management disregarded the collective work agreement: (1) disregarding the bonus for performance, which had already been paid out unequally and with a substantial difference in favour of workers in management who were generally not members of a union; (2) imposing in 1996, a new procedure, which differed from previous agreements, denying the retroactivity of redundancy compensation, and, from October 1996 applying Law No. 50 of 1994; and (3) replacing employees or staff with contracted workers from intermediary enterprises, and the murder of the legal adviser of SINTRATELEFONOS, Dr. Eduardo Umaña Mendoza, which occurred on 18 April 1999 and remains unresolved and unpunished, as on 18 April 2001 the Attorney-General’s Office released one of the principal suspects on the very date three years to the day that the murder took place.

C. The Government’s reply

1. 353. In its communications dated 5 April, 4 September and 26 October 2001, the Government states:
   • (a) the judicial proceedings begun by Ms. Adelina Molina de Cárdenas are currently in the preliminary stages, and Ms. Molina de Cárdenas admits that she stated that she was pregnant following the termination of her contract. The Bogotá Telecommunications Enterprise (ETB) confirms that the grounds used to dismiss the worker were not related to her pregnancy;
   • (b) regarding the dismissal of 23 trade union members on 4 November 1997, seven workers freely and voluntarily accepted a conciliation procedure (Germán Rodríguez, Alfredo Tarazona, Fernando Hernández, Serafín Gómez, Josué Moisés Carrasco, Orlando Chingate and Guillermo Ferreira) and there are 16 cases pending before the Ordinary Labour Court (including proceedings for trade union officials Rafael Galvis, Rodrigo Acosta and Sandra P. Cordero). These are in the preliminary stages. The Ministry of Labour and Social Security, in resolution No. 00864 of 18 May 2001 (attached), repealed in their entirety resolutions Nos. 002286 and 002287 issued by this office on 9 October 1997 in which the partial stoppages carried out by the workers of the ETB on 17 April, 27 and 30 May, and 4, 5 and 6 June 1997 were declared illegal. It was these administrative acts that led to the dismissal of the complainants. Therefore, the ETB now has no legal basis for having dismissed the employees concerned. The Government is awaiting the legal rulings in the light of the published resolutions and it will send information with regard to these decisions when they are forthcoming;
   • (c) regarding Martha Querales and Jorge Iván Castañeda, the Internal Affairs Department of the ETB has taken no disciplinary steps. This being the case, there is no inquiry with regard to the complainants;
   • (d) with regard to the sale of shares owned by the Capital District of Santa Fe de Bogotá in the ETB, and the dismissals that took place on 4 November 1997, the enterprise states that these are two different processes, in so far as the legality of the privatization process has no direct bearing on the dismissals referred to by the complainants. The ETB adds that the privatization process was declared in court and the ETB and the Capital District received favourable rulings in all procedures. Therefore, the ETB concludes that the fact that the sale procedure was declared illegal has nothing to do with the illegality of the dismissals of trade union officials and activists and that the reasons for which the sale procedure was stopped are to be found in Decree No. 792 of 21 September 2000;
   • (e) regarding the declaration that the work stoppages that took place on 17 April, 30 March, 4, 5 and 6 June 1997 were illegal, the ETB states that in spite of that which is laid down in the Ministry of Labour and Social Security’s resolution No. 00864 of 18 May 2000, which revokes resolutions Nos. 002286 and 002287 of 9 October 1997, in which the Ministry declares that such work stoppages are illegal, it is for a labour court ultimately to decide whether or not those dismissed are to be reinstated;
   • (f) the ETB states that it complied with the ruling of Bogotá Circuit Court No. 18 for Labour and the Judicial District Labour High Court with regard to the reinstatement of Jorge Ignacio Ayala Benavides. The employee was reinstated in a job similar to that which he had had when he was dismissed and he received unpaid wages covering the period from the date of dismissal until his reinstatement. Moreover, since his reinstatement he has continued to benefit from the same wage and benefits conditions laid down in the collective labour agreement signed between SINTRATELEFONOS and ETB and applicable to him at the time of his dismissal;
   • (g) regarding those who did not accept the conciliation proposal of the enterprise, this occurred for economic reasons as those concerned did not agree with the amount offered;
   • (h) regarding the cases of Flor Alba Pérez, Gladys Pérez, Jorge Alejandro Sánchez, Alvaro Miguel Vásquez and Arcadio Virviescas, who were dismissed in 1999, the ETB states that as a result of restructuring in 1999 it was necessary to cut some positions with the resulting unilateral termination of labour contracts with a number of people, among them those mentioned in the complaint. This termination was based on the collective labour agreement, clause 19, and the Substantive Labour Code. The former workers began labour proceedings in the ordinary courts and these are under way. The ETB adds that, to date, Jorge Iván Castañeda is still with the enterprise and Martha Querales was laid off with the appropriate compensation and benefits. Finally, the ETB states that regarding the cases of Gustavo Albarracin Villegas, Martha Yaneth Contreras, Ricardo Alberto López, Adelina Molina de Cárdenas and William Alberto Quevedo Ramírez, their employment was terminated with just cause and in accordance with the collective labour agreement and the law. The workers lodged an action for protection of constitutional rights (tutela proceedings), which was unsuccessful;
   • (i) regarding the status of Elias Quintana and Carlos Socha, the ETB states that these men do not seem to be registered in their archives as workers;
   • (j) regarding the disciplinary proceedings, the ETB states that two disciplinary proceedings were begun against Rafael Galvis, Germán Rodríguez and Sandra Cordero, one for violence against the vehicle transporting the president of the enterprise, in which no sanctions were imposed through application of article 6 of Law No. 200 of 1995, according to which, all reasonable doubt shall favour the person accused when there is no way of removing this. The other disciplinary proceedings relates to preventing workers from entering the workplace, in which Rafael Galvis and Sandra Cordero were subject to disciplinary measures. In both proceedings they were allowed a representative to act for them, which shows that due process was respected. However, the ETB states that the behaviour investigated in these disciplinary proceedings bears no relation to the motives upon which were based the dismissals with just cause that took place on 4 November 1997. Finally, the ETB states that Rodrigo Acosta was not the subject of an inquiry nor was he subject to disciplinary measures;
   • (k) the ETB states that, for security reasons, there is restricted entrance to some areas, such as telephone operator services, general distribution, computing centres and the CAOM (Centre for Administration, Operations and Maintenance of Exchange and Transmission), among others. This restriction applies to all enterprise staff; and
   • (l) regarding the pay-out of the performance bonus, this payment was based on achieving the goals established for 2000.

D. The Committee's conclusions

1. 354. The Committee observes that, when it examined this case at its March 2001 meeting, it requested the Government to take action on a number of allegations. Specifically, the Committee requested the Government: (1) to keep it informed of the outcome of the legal proceedings initiated by Ms. Adelina Molina de Cárdenas and of the judicial proceedings relating to the 23 trade union members dismissed in 1997 from the Bogotá Telecommunications Enterprise (ETB) and, should the ruling call for the reinstatement of the workers, to ensure that this was complied with; (2) to send observations on the disciplinary proceedings against the entire trade union executive committee of SINTRATELEFONOS for 1997-99 and the dismissal of Martha Querales and Jorge Iván Castañeda for reporting corruption among members of the management of the ETB. The Committee requested the complainants to supply more precise information on whether the trade union officials Elías Quintana and Carlos Socha -- dismissed according to the complainants -- were workers of the ETB and to indicate the name of the member of SINTRAELECOL who was dismissed from the Bogotá Power Company. The Committee also observes that SINTRATELEFONOS has presented new allegations relating to the following points:
   • (a) excesssive delays in the judicial proceedings;
   • (b) the 23 trade union members (including three trade union officials, Rafael Humberto Galvis, Rodrigo H. Acosta and Sandra P. Cordero) have not been reinstated and on 11 April the Constitutional Court reversed the ruling for protection of constitutional rights (tutela) that ordered that the majority of workers be reinstated, including the trade union officials who had been elected to the trade union executive committee. Of these 23 workers, seven (Germán Rodríguez, Alfredo Tarazona, Bernardo Hernández, Serafín Gómez, Josué Moisés Carrasco, Orlando Chingate Cabrera and Guillermo Ferreira) took early retirement, while the three trade union officials and ten workers refused it. Furthermore, Sandra P. Cordero, Rafael H. Galvis Jaramillo and Rodrigo H. Acosta were subjected to an increase in disciplinary proceedings aimed at demonstrating just cause for dismissal and were restricted in their access to certain areas of the enterprise as well as to meetings with workers;
   • (c) the Office of the Procurator-General of the Nation ordered that the sale of the ETB be halted because of serious irregularities; this had already been reported by the complainant organization, which led to the dismissals;
   • (d) the Ministry of Labour repealed resolutions Nos. 002286 and 002287 of 9 October 1997, which declared the work stoppages of 1997 illegal and which also gave rise to the dismissals. In spite of the fact that there is no longer any legal basis for these dismissals, the enterprise refuses to reinstate the workers (it has only reinstated Jorge Ayala, placing him in a job that differs from his previous one, and Hernando Casallas and Hernando López, on a temporary basis);
   • (e) the judicial proceedings have been postponed and there is no ruling on that basis;
   • (f) the following have still not been reinstated: Flor Alba Pérez, Gladys Pérez, Jorge Alejandro Sánchez, Alvaro Miguel Vásquez and Arcadio Virviescas, workers at the Engativa Office of the ETB who were dismissed in January 1999, Martha Querales and Jorge Iván Castañeda for reporting corruption among members of the management of the ETB, and Gustavo Albarracín Villegas, Martha Yaneth Contreras, Ricardo Alberto López, Adelina Molina de Cárdenas, William Alberto Quevedo Ramírez, and Amparo Zapata Valderrama, from the commercial division;
   • (g) the breaches of the collective agreement in paying out the performance bonus in an unfair way which benefited workers not belonging to a trade union, in denying retroactive redundancy compensation and in replacing employees with contract workers;
   • (h) the release of the main suspect in the murder of Dr. Eduardo Umaña Mendoza, legal adviser of SINTRATELEFONOS.
2. 355. With regard to the judicial proceedings begun by Ms. Adelina Molina de Cárdenas, the Committee notes that the Government states that this is in the preliminary stages and that when questioned Ms. Adelina Molina de Cárdenas acknowledged that she stated that she was pregnant following her dismissal and that the ETB confirms that the grounds used to dismiss her were not related to her pregnancy.
3. 356. With regard to the allegations relating to the 23 trade union members belonging to SINTRATELEFONOS dismissed by the ETB, the Committee notes the information provided by the Government according to which seven conciliation procedures took place freely and voluntarily (in the cases of Germán Rodríguez, Alfredo Tarazona, Bernardo Hernández, Serafín Gómez, Josué Moisés Carrasco, Orlando Chingate Cabrera and Guillermo Ferreira) and that the remaining legal procedures are in the preliminary stages, including those of the three trade union officials. Moreover, the Committee notes the Government’s statement that resolutions Nos. 002286 and 002287, which declared the work stoppages that took place in 1997 illegal and which led to the dismissals, were repealed but that the ETB declares that it is for a labour court ultimately to determine whether or not those dismissed are to be reinstated. The Committee requests the Government to let it know whether the ETB has begun legal proceedings and, if this is not the case, that the dismissed workers be immediately reinstated and receive their unpaid salaries. The Committee requests the Government to keep it informed of developments.
4. 357. Regarding the situation of Jorge Ignacio Ayala Benavides who, according to the allegations, was reinstated in a different job from that which he had held previously, the Committee notes the Government’s statement that in accordance with the ruling of Circuit Court No. 18 the worker was reinstated in a position of similar category, that he was paid the wages owing to him and that he is covered by the provisions laid down in the collective labour agreement.
5. 358. Regarding the disciplinary proceedings begun against the trade union officers, the Committee notes the Government’s statement that one of these proceedings relates to violence against the vehicle transporting the president of the enterprise but that no disciplinary measures were taken and the other relates to Rafael Galvis and Sandra Cordero, who were subjected to disciplinary measures for preventing workers from entering the workplace, and that according to the Government these processes had no bearing on the dismissals of 4 November 1997 and that on both occasions the defendants’ right to a defence was guaranteed. The Committee also notes that, according to the enterprise, the restricted entry to some areas of the enterprise applied to all staff. The Committee recalls that "governments should guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionization" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 954]. The Committee requests the Government to ensure that this principle is fully respected.
6. 359. Regarding the allegations relating to the dismissal of Martha Querales and Jorge Iván Castañeda, members of SINTRATELEFONOS, for having reported corruption among members of the ETB management, the Committee notes the Government’s statement that Jorge Iván Castañeda is still employed by the enterprise and that Martha Querales has been laid off with the appropriate compensation. The Committee requests the Government to take steps to ensure that an independent investigation is promptly undertaken into the circumstances of this dismissal, and if it is confirmed that it took place for anti-union reasons that the employee is immediately reinstated and paid the wages owing to her. The Committee requests the Government to keep it informed of developments.
7. 360. Regarding the suspension of the sale procedure of the ETB ordered by the Office of the Procurator-General of the Nation as a result of serious irregularities, the Committee notes the Government’s statement that this had no bearing on the dismissals at the ETB.
8. 361. Regarding the dismissals of Gustavo Albarracín Villegas, Martha Yaneth Contreras, Ricardo Alberto López, Adelina Molina de Cárdenas, William Alberto Quevedo Ramírez, and Amparo Zapata Valderrama, from the commercial division, the Committee notes the Government’s statement that these employees were dismissed in accordance with the collective labour agreement and that the proceedings for protection of constitutional rights (tutela) were unsuccessful.
9. 362. Regarding the dismissals of Flor Alba Pérez, Gladys Pérez, Jorge Alejandro Sánchez, Alvaro Miguel Vásquez and Arcadio Viviescas, of the Engativa Office of the ETB who were dismissed in January 1999, the Committee notes the ETB’s information that these dismissals took place as a result of restructuring and that the employees have begun legal proceedings, which are in the preliminary stages. The Committee requests the Government to keep it informed of the outcome of these proceedings.
10. 363. The Committee notes that the Government’s observations and the allegations presented by the complainant regarding the association of Elías Quintana and Carlos Socha with the ETB and their membership of SINTRATELEFONOS are contradictory as the enterprise denies that these persons are employees. Given that the complainants have alleged that these persons were dismissed, the Committee requests the Government to carry out an inquiry and to correct any prejudicial action taken against these persons for anti-union reasons. The Committee requests the government to keep it informed of the outcome of this inquiry.
11. 364. Finally, regarding the alleged anti-union discrimination in the payment of the performance bonus envisaged in the collective labour agreement, the Committee notes that according to the ETB this pay-out was based on achieving the goals established for 2000. The Committee regrets that the Government sent no information with regard to the other violations of the collective labour agreement presented by the complainant. The Committee requests the Government to ensure that the collective labour agreement is adhered to and to ensure that the payment of the performance bonus is not used as an instrument of anti-union discrimination in that it benefits only those workers who do not belong to a trade union.
12. 365. The Committee also regrets that the Government has sent no information with regard to the inquiry into the murder of Dr. Eduardo Umaña Mendoza, legal adviser of SINTRATELEFONOS. However the Government notes that this murder was referred to in Case No. 1787 and that it will be examined under this case
13. 366. Finally, as concerns the allegations of continual delays and inefficiency of the justice system in Colombia that, according to the complainants, have meant that the courts for both the ordinary proceedings and for the special jurisdiction proceedings have not ruled for three years and seven months, the Committee recalls the principle that justice delayed is justice denied [see Digest, op. cit., para. 105].

The Committee's recommendations

1. 367. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Regarding the 23 trade union members of SINTRATELEFONOS who were dismissed by the Bogotá Telecommunications Enterprise (ETB), the Committee requests the Government to provide information on whether the ETB has begun legal proceedings and, if this is not the case, that those workers dismissed be immediately reinstated and paid the wages owing to them. The Committee requests the Government to keep it informed of developments in this respect.
   • (b) Regarding trade union officials being restricted from entering some areas of the enterprise, the Committee requests the Government to ensure respect for the principle according to which governments should guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionization.
   • (c) Regarding the dismissal of Martha Querales, member of SINTRATELEFONOS, for having reported corruption among members of the ETB management, the Committee requests the Government to take steps to ensure that an independent investigation is promptly undertaken into the circumstances of her dismissal, and if this is confirmed to have taken place for anti-union reasons that she be immediately reinstated and paid the wages owing to her. The Committee requests the Government to keep it informed of developments.
   • (d) The Committee requests the Government to keep it informed of the outcome of the judicial proceeding launched by the workers from the Engativa Office in 1999.
   • (e) Regarding the association of Elías Quintana and Carlos Socha with the ETB and their membership of SINTRATELEFONOS, the Committee requests the Government to carry out an inquiry into the matter and to resolve any prejudicial action taken against these persons for anti-union reasons. The Committee requests the Government to keep it informed of the outcome of this inquiry.
   • (f) Regarding the pay-out of the performance bonus, envisaged in the collective labour agreement in an anti-union manner, the Committee requests the Government to ensure that the provisions of the collective labour agreement are fulfilled and that the payment of the bonus is not used as an instrument of anti-union discrimination in that it benefits only those workers who do not belong to a trade union.