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Effect given to the recommendations of the Committee and the Governing Body
Effect given to the recommendations of the Committee and the Governing Body
- 43. At its meeting of November 1998, the Committee made the following recommendations on the allegations pending (see 311th Report, para. 365):
- (a) The Committee urges the Government to take new measures to implement without delay the conclusions and recommendations it made at its meeting of November 1996 in Case No. 1879 relating to the enterprise FERTICA SA. It requests the Government to ensure that those dismissed because of their trade union office or membership are reinstated (all the members of the executive board of the workers' association and 265 members have been dismissed) and that the collective agreement is implemented. The Committee requests the Government to keep it informed in this respect.
- (b) The Committee expresses its concern at the slowness, noting that the long delay in deciding proceedings amounts to a denial of justice, and inefficiency of the proceedings on allegations of anti-trade union discrimination in a considerable number of cases and requests the Government to take the measures necessary to ensure the speedy conduct of proceedings.
- (c) The Committee deeply deplores that the enterprise FERTICA SA has once again engaged in anti-union practices and urges the Government to take the measures necessary to ensure that it recognizes the legitimate executive board of the Association of Workers of FERTICA SA (ATFe) and hand over all its members' union dues. Furthermore, recalling that the intervention of an employer to promote the constitution of the executive board of a trade union and interference with its correspondence are acts that constitute a grave violation of the principle of freedom of association, the Committee requests the Government to take measures to ensure that such acts are not repeated in the future and to guarantee the rights of the legitimate executive board.
- (d) Noting that the administrative authorities confirmed in 1998 the extension of the collective agreement in force, the Committee requests the Government to ensure that the enterprise FERTICA SA honours that collective agreement.
- (e) With regard to the allegations concerning: prohibition of entry by ATFe union officials into the premises of the company, and the prohibition from holding demonstrations, meetings and assemblies in the usual places; the dismissals alleged to have occurred in FERTICA SA on grounds of social and economic dispute despite the existence of a judicial order that such dismissals should not take place; promoting of the constitution of the SITRAFER trade union organization in FERTICA SA; the disappearance of the pension that had been established by the collective agreement and which was the property of the workers, the Committee requests the Government to take the measures necessary to conduct detailed investigations without delay into all the allegations and to ensure that the judicial orders stating that dismissals in FERTICA SA should not take place are respected and to keep it informed of the result of those investigations.
- 44. In its communication of 18 January and 22 March 1999, the Government states that as regards the alleged non-compliance with the Committee's recommendations requesting the reinstatement of trade union officials and members and the implementation of the collective agreement in the FERTICA SA enterprise, as indicated in its previous replies, the Government fulfilled its function as mediator, in particular in several meetings with the parties, and providing a timely response, by means of the conciliation machinery available under the legal system in force, to each of the Committee's recommendations. It has repeatedly urged the parties to comply with those recommendations, without at any time claiming the authority to impose measures which are the responsibility of the courts of law (the reinstatement of the workers in question who were dismissed because of their trade union office is a matter which is the exclusive competence of the courts). In particular, the Minister of Labour and Social Security, in communication DMTA.MB-210 dated 7 September 1998, invited the general manager of FERTICA and the secretary-general of ATFe to an administrative conciliation meeting, which was held on 21 September 1998, with a view to reaching an agreement on the recommendations concerning the reinstatement of the workers dismissed as well as compliance with the collective agreement. The arguments put forward by the employer against such a course of action included the statement that the dismissals of the trade union officials were made under the provisions of the collective agreement and before the latter was denounced by the ATFe. The Government also refers to a meeting that took place on 18 March 1998 between the parties and the head of labour matters of the Ministry of Labour and Social Security. During the meeting, the enterprise rejected the conciliation initiative undertaken by the ministry to examine issues similar to those examined by the Committee in Case No. 1879 and which are the subject of various judicial proceedings. Moreover, the Ministry of Labour issued an administrative guideline to the competent ministerial bodies requiring them once again to take all the necessary steps to urge the parties in dispute to reach a solution and to try to secure the reinstatement of all the dismissed workers in their workplaces and compliance with the collective agreement.
- 45. As regards the Committee's recommendations concerning the slowness of justice, the Government states that the Committee's report was transmitted to the President of the Supreme Court of Justice and high-ranking members of the judiciary have been reminded of the ILO principle in the sphere of freedom of association that justice should be both speedy and seen to be done. Furthermore, on 15 May 1998 the present Minister of Labour and Social Security issued circular DMT-063-98 which reminded the competent ministerial authorities of their obligation to apply in a speedy manner, within a period of two months and without prejudice to the rights resulting from the principles of due process and legitimate defence, the applicable procedure in cases of anti-union discrimination. This time limit was established by the Constitutional Court, in decision No. 4298-97 of 23 July 1997. According to this jurisprudence, in cases of suspected trade union persecution and unfair labour practices, the task of the Ministry is to determine whether or not there are grounds for a denunciation to be made to the competent courts by the Director-General of Labour (the latter's decision may be appealed to the Ministry of Labour), with a period of two months being established for the completion of the administrative inquiry. According to the Government, it is the parties in dispute who have been mainly responsible for delaying the proceedings through the use of delaying tactics and procedures facilitated by due process. Moreover, the Government emphasized its unequivocal readiness to address the Committee's concern about the supposed slowness of justice in administrative proceedings on unfair labour practices.
- 46. Furthermore, the Government states that it deplores all the anti-union practices which infringe the rights of the workers in the FERTICA SA enterprise and it recalls in this respect that the Ministry of Labour and Social Security has confirmed at the administrative level the validity of the collective agreement signed on 15 September 1994 between FERTICA SA and AFTe. This constitutes a clear recognition of the current executive board of this organization, which has been duly registered.
- 47. As regards the handing over of members' union dues, the Ministry of Labour and Social Security intervened in the matter on 21 September 1998 with a view to ensuring that the employer change its practice regarding the handing over of members' union dues. However, the employer claimed that since the supposed representation of the ATFe trade union in the person of Marco Antonio Guzmán Rodríguez is being challenged in the ordinary labour court by Messrs. Tomás Alberto Cortés Gómez and Oscar Fernández Salazar, FERTICA SA has transferred the said trade union dues to the Trade Union of Workers of FERTICA, the legal personality of which is recorded in the register of the Ministry of Labour. Moreover, the employer states that the different legal cases related to the matters in hand are still under way. As a result, the Minister of Labour has instructed the competent labour authorities to study and ensure the application of all labour legislation, with a view to establishing a harmonious relationship between the e
- mployer and employees, as a guarantee of order and social justice. In this context, direct instructions have been given to these authorities to intervene in the settlement of the dispute with a view to achieving an extrajudicial conciliation between the parties.
- 48. Furthermore, the Government states that the supposed interference of the employer in the election of the executive board of ATFe and interference with its correspondence are "non-proven facts" contained in the report issued by the Labour Inspectorate on 26 November 1996. At all events, with a view to furthering the abovementioned search for peaceful labour relations, comprehensive and express instructions have been given to the National Directorate of Labour Inspection, in the abovementioned communication, for vigilance to be exercised at all times as regards the protection of the collective rights of workers, non-interference by employers in the election of the executive boards of trade unions and non-interference in trade union correspondence, guaranteeing in this way the exercise of the rights of the members of the executive boards of social organizations.
- 49. As regards the Committee's request that the Government ensure that the FERTICA SA enterprise honours the collective agreement in force, the Government points out that the Ministry of Labour has recognized at the administrative level the validity of the collective agreement and, in the same terms, the competent ministerial authorities have been applying it in accordance with the law and have received instructions to ensure that, in accordance with the law, the FERTICA SA enterprise complies with and respects the collective agreement. Furthermore, the Government states that pursuant to administrative resolution No. DRT166-99 of 18 March 1999, the Department of Labour has extended the collective agreement in question for a period ending 15 September 2000.
- 50. As regards the final paragraph of the Committee's recommendations, the Government notes the Committee's observations and the Ministry of Labour and Social Security accordingly undertakes to instruct all its inspectors to exert greater vigilance in the FERTICA SA enterprise with a view to ensuring that there is no obstacle to the constitutional right of assembly of workers and trade union officials and the right to hold peaceful meetings and assemblies with the workers. In this respect it should be noted that in accordance with the national law in force, the mere fact of participating in a strike picket or the open and peaceful incitement to other workers not to take up their workplaces is not considered an illegitimate act and therefore this right is guaranteed in the legal system applicable to workers.
- 51. Furthermore, as regards the allegation of the promotion of the constitution of the SITRAFER trade union organization by the employer, the Minister of Labour and Social Security has given instructions to the National Directorate of Labour Inspection to undertake the respective inquiry with a view to ascertaining the truthfulness of the allegations. As a result of the above, SITRAFER is an organization which is now properly constituted, as can be seen from the file, and for this reason enjoys all the rights guaranteed by the law in force, without prejudice to the rights of other organizations in similar conditions. The Government undertakes to keep the Committee informed in this respect.
- 52. As regards the alleged disappearance of the pension fund which is the property of the workers in the FERTICA SA enterprise, the Minister of Labour has instructed the Labour Affairs department and the National Directorate of Labour Inspection to undertake conciliation measures on a coordinated basis or, failing that, the necessary administrative inquiry with a view to establishing the truth of the matter. The Government undertakes to keep the Committee informed in this respect. Finally, the Government reiterates its readiness to comply with all the recommendations made by the Committee on Freedom of Association.
- 53. The Committee notes the measures taken by the Government to conciliate and mediate between the FERTICA SA enterprise and the ATFe organization and to try to secure the reinstatement of the workers dismissed from their workplaces and compliance with the collective agreement and notes with interest that the administrative authorities have taken steps to ensure that the enterprise complies with and respects the collective agreement and that pursuant to an administrative decision, this collective agreement has been extended up to 15 September 2000. On the other hand, it regrets that the enterprise, in disregard of the Committee's recommendations, refuses to reinstate the trade union officials and members dismissed. The Committee requests the Government to keep it informed of the outcome of the instructions given to the administrative authorities with a view to finding a solution and achieving the reinstatement of the dismissed persons and expresses the hope that these reinstatements will be made in the very n
- 54. The Committee notes with interest that the Constitutional Court, in decision No. 4298-97 of 23 July 1997, fixed a time limit of two months for the holding of administrative inquiries into acts of anti-union persecution and unfair practices. The Committee requests the Government to study the possibility of amending legislation so that once an inquiry concludes that acts of anti-union discrimination have occurred, the effects of such acts shall be declared null and void at least until the judicial authorities have ruled on the matter.
- 55. The Committee notes that the Minister of Labour has given instructions to the administrative authorities to try to resolve the dispute in the FERTICA SA enterprise through extrajudicial conciliation on the matter, including as regards the payment of trade union dues to AFTe (an organization which moreover the Government recognizes, as it does SITRAFER). It also notes that instructions have also been given to ensure non-interference by employers in the executive boards of trade unions and trade union correspondence and that the Government has instructed the labour inspectors to step up their monitoring of the FERTICA SA enterprise to ensure that there is no impediment to the constitutional right of assembly of workers and trade union officials and that they are permitted to hold peaceful assemblies. The Committee also notes the Government's remarks concerning conciliation measures or, failing that, an administrative inquiry into the alleged disappearance of the pension fund which is the property of the workers of the enterprise, set up under the collective agreement. The Committee requests the Government to keep it informed of the outcome of the various aspects of this case, including the new dismissals which occurred as a result of a socio-economic dispute. The Committee also requests the Government to carry out an inquiry into the alleged promotion by the enterprise of an executive board parallel to that of the Association of Workers of FERTICA SA (AFTe) and to keep it informed of the inquiry into the promotion by the enterprise of a new trade union (SITRAFER). The Committee hopes that its recommendations on this case will be applied in the near future.
