Informe provisional - Informe núm. 333, Marzo 2004

Caso núm. 2068 (Colombia) - Fecha de presentación de la queja:: 20-ENE-00 - Cerrado

Allegations: Dismissal of workers from the Textiles Rionegro enterprise; refusal to reinstate dismissed trade union leaders of ASEINPEC, banning of a meeting, denial of appeals for protection of constitutional rights aimed to protect the trade union immunity of a number of trade union leaders of ASEINPEC, refusal to return the offices of the ASEINPEC organization and a number of anti-union acts against ASEINPEC, mass dismissal of workers at SOFASA

1. 465. The Committee last examined this case at its May-June 2003 meeting [see 331st Report, paras. 255-266] and submitted an interim report to the Governing Body.
2. 466. The Single Confederation of Workers of Colombia (CUT) sent new allegations in a communication dated 11 March, received by the Office on 18 and 26 August 2003.
3. 467. The Government sent its observations in communications dated 8 April, received by the Office on 12 June, 13 August, 5, 6, 24 and 25 September 2003.
4. 468. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 469. At its May-June 2003 meeting, the Committee formulated the following recommendations [see 331st Report, para. 266]:
2. – As regards the dismissal of 34 workers from Textiles Rionegro, the Committee once again requests the Government to carry out the relevant investigations without delay, to inform it of any legal proceedings begun and to send its observations on the current situation in respect of these workers.
3. – As regards the ruling handed down by the Honourable Council of State with regard to the action for the protection of constitutional rights lodged by the trade union official María Librada García deciding to turn the file over to the Court of First Instance in order to ensure that due process was observed with regard to her dismissal, the Committee requests the Government to keep it informed of the outcome of the legal proceedings and hopes that these proceedings will be concluded in the near future.
4. – As regards the allegations presented by the Trade Union Association of Employees of the National Penitentiary and Prison Institute (ASEINPEC) relating to the refusal to reinstate trade union officials and the constant threats received by these officials, anti-union persecution through measures against union leaders including sanctions, disciplinary proceedings and transfers, the dismissal of union leaders in violation of trade union immunity, the suspension of trade union leaders without pay for having conducted a peaceful demonstration, pressure on members to leave the union and the refusal to return the trade union offices to the complainant organization in spite of a legal ruling ordering this, the Committee requests the Government to ensure that the National Penitentiary and Prison Institute (INPEC) complies with the legal ruling ordering the reinstatement of the dismissed trade union officials, and that it take the necessary steps to ensure that the ASEINPEC offices are returned to the trade union organization without delay as ordered by the legal authority. The Committee requests the Government to keep it informed in this respect and to reply without delay to the other allegations.
5. – As regards the murders of trade union officials Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García, the Committee requests the Government to take the necessary steps to ensure that the investigations allow those responsible for these murders to be punished in the near future and to keep it informed in this respect.
6. – As regards the other allegations presented by ADEM, the Trade Union of Workers of Sintéticos S.A. (SINTRASINTETICOS) and the National Union of Textile Industry Workers (SINTRATEXTIL), the Committee requests the Government to send its observations without delay so that the Committee may formulate its conclusions in full possession of the facts.
7. These allegations are reproduced below:
8. – The Official Employees’ Association of the Municipality of Medellín (ADEM) alleges the violation of the agreement under which the Government had undertaken to reinstate the 83 workers enjoying trade union protection, and on the lack of consultations during the administrative restructuring process initiated by the Council of Medellín.
9. – The Trade Union of Workers of Sintéticos S.A. (SINTRASINTETICOS) alleges: (a) pressure and threats by the Odissey Limited enterprise to force workers to leave the union; (b) interference by the enterprise in internal union matters; (c) delays in the settlement of proceedings before tribunals relating to violation of freedom of association; (d) sanctions against trade union leaders for making use of trade union leave; (e) the enterprise refusal to hold meetings for collective bargaining.
10. – The National Union of Textile Industry Workers (SINTRATEXTIL) alleges: (a) in the Fabricato enterprise: (1) there is violation of the collective agreement; (2) trade union leave is denied; (3) trade union leaders are denied access to the premises; (b) in the Enka enterprise: (1) non-fulfilment of agreements concluded between the president of the company and the trade union; (2) violation of the collective agreement through the conclusion of contracts with companies to conduct work directly covered by the collective agreement; (3) distribution of the hardest tasks to unionized workers; (c) in the Coltejer enterprise: dismissals on the grounds of restructuring, in violation of a collective agreement; and (d) in the Textiles Rionegro enterprise: (1) favouritism towards one of the enterprise trade unions to the detriment of the industry union; and (2) violation of the collective agreement.
11. B. New allegations
12. 470. In its communications of 11 March and 26 August 2003, the Single Confederation of Workers of Colombia (CUT) refers to the mass dismissal in 1992 of SOFASA workers affiliated to SINTRAUTO (the Committee examined these allegations in its 325th Report, para. 331). As a result of those dismissals, the Envigado executive subcommittee of SINTRAUTO, to which the SOFASA workers were affiliated, ceased to exist. The complainant organization adds that in 1996 the National Trade Union instituted judicial proceedings against the enterprise for non-compliance with the collective agreement, without the participation of the Envigado executive subcommittee as it no longer existed. In 1997, the National Trade Union reached an agreement with the enterprise, accepting compensation of 17 million pesos for non-compliance with the collective agreement, and a clause was included in the conciliation document stating that there was no other charge against the enterprise (the Government sent a copy of the conciliation document). The CUT indicates that the Envigado executive subcommittee of the trade union did not participate in the conciliation and that the resulting economic benefits remained with the national executive committee. The question of mass dismissals therefore remains pending.
13. C. The Government’s replies
14. 471. In its communications dated 8 April, 13 August, 5, 6, 24 and 25 September 2003, the Government states that, as regards paragraph (a) of the recommendations relating to the dismissal of 34 workers from Textiles Rionegro, to date and in accordance with the relevant judicial decisions, 15 workers have been reinstated, the enterprise has reached agreements with 13 workers through legal channels and the ruling relating to three workers is pending before the High Court of Antioquia, with their reinstatement having been ordered in the first instance. The Government says it will send the decisions when they are handed down.
15. 472. With respect to paragraph (b) of the recommendations relating to the ruling handed down by the Honourable Council of State with regard to the action for protection of constitutional rights lodged by the trade union official María Librada García, deciding to turn the file over to the Court of First Instance in order to ensure that due process was observed with regard to her dismissal, the Government indicates that the trade union organization has not instituted the relevant actions to make compliance with the amparo mechanism effective.
16. 473. As regards paragraph (d) of the recommendations, relating to the allegations submitted by ASEINPEC concerning the constant threats received by trade union leaders, anti-union persecution through measures against union leaders including sanctions, disciplinary proceedings and transfers, the dismissal of union leaders in violation of trade union immunity (with respect to when the High Court of the Judicial District of the Department of Quindío ordered reinstatement), the suspension of trade union leaders without pay for having conducted a peaceful demonstration, pressure on members to leave the union and the refusal by the director of the INPEC to return the offices of the trade union organization, in spite of a legal ruling ordering this, the Government states that it does not share the views of the trade union organization.
17. 474. Concerning paragraph (f) of the recommendations, relating to the allegations presented by SINTRASINTETICOS concerning persecution of the trade union at Sintéticos S.A. targeting trade union members and leaders to make them resign from the trade union [see 328th Report, paras. 151-163], which involved the dismissal of Gabriel Arturo Martínez Tirado, Gildardo Antonio Arboleda Suárez, Jaime González, Rafael Pareja, Carlos Ruíz, Joel Cardona, José Abad García, Guillermo Márquez, Diego Obando, Gabriel Martínez, Fabián Taborda and Mario de Jesús Sánchez, the Government states that the amparo proceedings they lodged were dismissed, a decision that was confirmed by the High Court of Medellín, on 4 September 2000. In accordance with the terms of the judicial decision, the dismissed workers can appeal through the normal legal channels. The Government adds that the Territorial Directorate of Antioquia of the Ministry of Labour and Social Security initiated two administrative labour inquiries against Sintéticos S.A., the first for alleged violation of the collective agreement and the second for violation of the in-house regulations. The Government states that in the first inquiry the Territorial Directorate sanctioned the enterprise for violation of the agreement by way of resolution No. 000681 of April 2002, a decision which was confirmed by way of resolutions Nos. 01472 of 23 July 2002, and 03268 of 11 December 2002. As to the second inquiry, the Territorial Directorate, in accordance with resolution No. 03259 of December 2002, left the parties free to apply to the ordinary labour courts as it was not competent to issue value judgements.
18. 475. As regards the allegations presented by ADEM concerning non-compliance with an agreement in which the Government had undertaken to reinstate 83 workers covered by trade union immunity and the lack of consultations during the administrative restructuring process initiated by the Council of Medellín, the Government indicates that there is no evidence on its records of such an agreement having been reached.
19. 476. With respect to the allegations provided by the CUT concerning SOFASA, the Government refers to the reply it gave in the framework of the 325th Report of the Committee and notes that the Committee has already addressed those allegations.

D. The Committee’s conclusions

1. 477. The Committee observes that when examining this case relating to acts of discrimination and anti-union persecution at its May 2003 meeting, it had requested the Government to take certain measures or to communicate certain information [see 331st Report of the Committee, para. 266].
   • Paragraph (a) of the Committee’s recommendations at its May 2003 meeting
2. 478. As regards the dismissal of 34 workers from Textiles Rionegro, the Committee notes the Government’s information concerning the reinstatement of 15 workers in compliance with legal decisions ordering this, the agreements reached through legal channels between the enterprise and 13 workers, and the pending rulings relating to three workers. The Committee nevertheless observes that this information relates to 31 workers, while the allegations concerned 34 workers. The Committee therefore requests the Government to keep it informed of the results of the pending judicial proceedings relating to three workers, and with respect to the situation of the other three workers to whom the Government makes no reference in is observations.
   • Paragraph (b) of the Committee’s recommendations
3. 479. As regards the ruling handed down by the Council of State with regard to the action for protection of constitutional rights lodged by the trade union official María Librada García deciding to turn the file over to the Court of First Instance, the Committee notes that according to the Government the trade union organization has not yet taken the relevant action to make compliance with the amparo mechanism effective.
   • Paragraph (d) of the Committee’s recommendations
4. 480. As regards the allegations presented by the Trade Union Association of Employees of the National Penitentiary and Prison Institute (ASEINPEC) relating to the constant threats received by trade union officials, anti-union persecution through measures against union leaders including sanctions, disciplinary proceedings and transfers, the dismissal of union leaders in violation of trade union immunity (whose reinstatement was ordered by the High Court of the Judicial District of the Department of Quindío), the suspension of trade union leaders without pay for having conducted a peaceful demonstration, pressure on members to leave the union, and the refusal by the director of the INPEC to return the trade union offices to the complainant organization in spite of a legal ruling ordering this, the Committee regrets to observe that the Government has limited itself to indicating that it does not share the views of the trade union organization, without referring specifically to the failure of the INPEC to comply with the rulings ordering the reinstatement of the trade union officials and the return of the offices to the trade union organization. Neither has the Government sent its observations with respect to the other allegations concerning anti?union discrimination. The Committee recalls once again that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, para. 748]. The Committee also emphasizes the importance of judicial decisions relating to the INPEC being implemented swiftly. The Committee requests the Government to take measures to ensure that the judicial decisions ordering the reinstatement of the dismissed trade union leaders and the return of the trade union offices are implemented without delay and to send its observations with respect to the further allegations of anti-union discrimination relating to threats, sanctions, disciplinary proceedings and transfers involving trade union officials of ASEINPEC.
   • Paragraph (e) of the Committee’s recommendations
5. 481. As regards the murders of trade union officials Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García, about which the Government had stated that the Attorney-General’s Office on violations of trade union members’ human rights had carried out investigations, the Committee regrets to observe that the Government has not sent any further information and adds that these issues will be dealt with in future in the framework of Case No. 1787. The Committee repeats its previous recommendation in which it requested the Government to take the necessary steps to ensure that the investigations allow those responsible for these murders to be punished in the near future and to keep it informed in this respect.
   • Paragraph (f) of the Committee’s recommendations
6. 482. As regards the allegations presented by SINTRASINTETICOS concerning persecution of the trade union at Sintéticos S.A. targeting trade union members and leaders to make them resign from the trade union [see 328th Report, paras. 151-163], and the dismissal of Gabriel Arturo Martínez Tirado, Gildardo Antonio Arboleda Suárez, Jaime González, Rafael Pareja, Carlos Ruíz, Joel Cardona, José Abad García, Guillermo Márquez, Diego Obando, Gabriel Martínez, Fabián Taborda and Mario de Jesús Sánchez, the Committee notes the Government’s information that: (i) the amparo proceedings lodged by the workers were rejected, a decision which was confirmed by the High Court of Medellín, on 4 September 2000, in accordance with the terms of the judicial decision, the dismissed workers can still appeal through the normal legal channels; (ii) the Territorial Directorate of Antioquia of the Ministry of Labour and Social Security initiated two administrative labour inquiries against Sintéticos S.A., the first for the alleged violation of the collective agreement and the second for violation of the in-house regulations. In the first inquiry the Territorial Directorate sanctioned the enterprise by way of resolution No. 000681 of April 2002 for violation of the agreement, a decision which was confirmed by way of resolutions Nos. 01472 of 23 July 2002, and 03268 of 11 December 2002. As to the second inquiry, the Territorial Directorate, in accordance with resolution No. 03259 of December 2002, left the parties free to apply to the ordinary labour courts.
7. 483. As regards the allegations presented by ADEM concerning non-compliance with an agreement in which the Government had undertaken to reinstate 83 workers covered by trade union immunity, and on the lack of consultations during the administrative restructuring programme initiated by the Council of Medellín, the Committee notes that according to the Government it has no evidence on its records of such an agreement having been concluded. The Committee recalls in this respect that according to the complainant organization on 20 February 2001 the Mayor signed a Memorandum of Understanding committing him to respect workers’ rights and freedom of association and admitted that the administration had made a mistake in dismissing the 83 employees and, under paragraph 7 of the Memorandum, agreed to order that they be reinstated in their posts [see 328th Report, para. 131]. The Committee requests the Government to carry out an investigation at the office of the Mayor of Medellín to determine whether the agreement was in fact concluded, and if it was, to take measures to ensure it is implemented as soon as possible.
8. 484. The Committee regrets to observe that the Government has not sent its observations with respect to the allegations submitted by the National Union of Textile Industry Workers (SINTRATEXTIL) which relate to [see 331st Report, para. 259(g)]: (a) in the Fabricato enterprise: (1) there is violation of the collective agreement; (2) trade union leave is denied; (3) trade union leaders are denied access to the premises; (b) in the Enka enterprise: (1) non-fulfilment of agreements concluded between the president of the company and the trade union; (2) violation of the collective agreement through the conclusion of contracts with companies to conduct work directly covered by the collective agreement; (3) distribution of the hardest tasks to unionized workers; (c) in the Coltejer enterprise: dismissals on the grounds of restructuring, in violation of a collective agreement; and (d) in the Textiles Rionegro enterprise: (1) favouritism towards one of the enterprise trade unions to the detriment of the industry unions; and (2) violation of the collective agreement. The Committee requests the Government to send its observations in this respect without delay.
   • Allegations relating to SOFASA S.A.
9. 485. As regards the allegations of the Single Confederation of Workers of Colombia (CUT) concerning the mass dismissal of workers from SOFASA S.A., which meant the disappearance of the Envigado executive subcommittee of SINTRAUTO, the Committee agrees with the Government’s observation that they have already been examined [see 325th Report, para. 331]. The Committee furthermore indicates that in accordance with the conciliation document (sent by the Government), the conflict was resolved between the Government and the national branch of the trade union. As concerns any disagreements between the Envigado executive subcommittee and the National Trade Union concerning the way in which the conflict was resolved, the Committee recalls that conflicts within a trade union lie outside its competence and should be resolved by the parties themselves or by recourse to the judicial authority or an independent arbitrator [see Digest, op. cit., para. 972].

The Committee's recommendations

1. 486. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the dismissal of 34 workers from Textiles Rionegro, the Committee requests the Government to keep it informed of the results of the pending judicial proceedings relating to three workers to whom the Government made no reference in its observations. Moreover, as to the other allegations submitted by SINTRATEXTIL concerning the enterprises Fabricato, Enka and Coltejer and Rio Negro, the Committee requests the Government to send its observations without delay.
   • (b) Concerning the allegations presented by ASEINPEC relating to constant threats, sanctions, disciplinary proceedings and transfers involving trade union leaders, the dismissal and suspension of trade union leaders without pay in violation of trade union immunity and the refusal by the director of the INPEC to return the trade union offices, the Committee requests the Government to take measures to ensure that the judicial decisions ordering the reinstatement of the trade union leaders and the return of the trade union offices are implemented without delay and to send its observations with respect to the further allegations of anti-union discrimination relating to threats, sanctions, disciplinary proceedings and transfers involving trade union leaders of ASEINPEC.
   • (c) As regards the allegations submitted by ADEM concerning non-compliance with an agreement in which the Government had undertaken to reinstate 83 workers covered by trade union immunity, the Committee requests the Government to carry out an investigation at the office of the Mayor of Medellín to determine whether the agreement was in fact concluded and if it was, to take measures to ensure it is implemented as soon as possible.
   • (d) As regards the murders of trade union officials Jesús Arley Escobar, Favio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García, the Committee once again requests the Government to take the necessary steps to ensure that the investigations allow those responsible for these murders to be punished in the near future and to keep it informed in this respect.