Informe provisional - Informe núm. 329, Noviembre 2002

Caso núm. 2097 (Colombia) - Fecha de presentación de la queja:: 18-AGO-00 - Cerrado

Allegations: The complainant organizations allege dismissals of trade union officials protected by trade union immunity and the dismissal of trade unionists on anti-union grounds. They also allege that the Government has not adopted the necessary measures to give effect to the provisions of Convention No. 151 concerning the negotiation of the employment conditions of public officials.

1. 448. The Committee last examined this case at its June 2001 meeting [see 325th Report, paras. 338-353, approved by the Governing Body at its 281st Session (June 2001)]. The National Trade Union of Workers of Procter and Gamble Colombia (SINTRAPROCTERG) and the Trade Union of Workers of Antioquia Department (SINTRADEPARTAMENTO) sent additional information concerning their complaints in communications dated 28 June and 30 August 2001. The Trade Union of Workers of “Cementos del Nare S.A.” (SINTRACENARE) and the Union of State Workers of Colombia (UTRADEC) also submitted allegations relating to this case. The Single Confederation of Workers of Colombia, Antioquia executive board, and the Union of “Official” Workers and Public Employees of the General Hospital of Medellín (SINTRA Hospital General de Medellín) submitted all allegations related to these questions in their communications dated 4 and 16 June and 22 May 2002.
2. 449. The Government sent its observations in communications dated 3 June and 4 September 2001 and 1 April, 4 June and 18 July 2002.
3. 450. 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 Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 451. At its June 2001 meeting, following its examination of allegations relating to acts of discrimination and persecution against trade union officials and trade unionists in various enterprises, the Committee made the following recommendations [see 325th Report, para. 353, subparas. (b) and (c)]:
2. The Committee urges the Government to take immediate steps to begin an independent inquiry covering all the allegations made by the National Trade Union of Workers of AVINCO S.A. concerning different anti-union acts in the company AVINCO S.A. (dismissal of five workers covered by trade union immunity after they had formed a trade union organization at the company; pressure put on workers to accept a collective agreement and the subsequent withdrawal of non-statutory benefits from unionized workers; pressure on workers to make them leave the union; intransigence on the part of the company in refusing to negotiate a list of demands), and that it communicate its own observations on the basis of the inquiry’s findings.
3. The Committee requests the Government to communicate its observations on the allegations made recently by the Trade Union of Workers of Procter and Gamble Colombia (SINTRAPROCTERG). The Committee also requests the complainant to supply the names of persons who, according to the allegations, have been victims of anti-union acts. Finally, the Committee asks the Government to send its observations on the recent allegations presented by SINTRAMANCOL.
4. [SINTRAPROCTERG alleges numerous anti-union acts by the company against union members (for example: pay raises for non-unionized workers; suspension of two union members for inadvertent errors in clocking in; dismissal of 25 workers in 1996 after they had joined the union; dismissal of a worker in 1998 after he had joined the union; dismissal in 1999 of a worker covered by trade union immunity after he had presented a list of demands; offers of money to the union’s president, vice-president and executive secretary to persuade them to leave the company and thus weaken the union; a request to suspend the trade union immunity of the president, based on a report which accused him of sleeping during working hours; surveillance of the union secretary by company guards; moves to concentrate union members in a single work area; disciplinary summonses of workers joining the union with a view to intimidating them; pressure on the President, Mr. Juan Manuel Estrada, which led to his resignation from the union presidency; refusal to grant trade union leave; and offers of cash to unionized workers to encourage them to leave the company). SINTRAMANCOL explains that the owners of the enterprise Mancol Popayán S.A. decided to liquidate the said enterprise and requested authorization from the public authorities to close it definitively. The Ministry of Labour authorized the closing of the enterprise and on 4 May 1999, all the workers were dismissed. The complainant organization alleges that with regard to the trade union officials, the enterprise initiated proceedings with the judicial authorities in order to obtain authorization for their dismissal. However, on 4 December 2000, and without having obtained that authorization, the enterprise dismissed the 12 SINTRAMANCOL officials. The complainant organization indicates that it initiated legal proceedings against this decision but since the enterprise does not exist anymore, it is impossible to execute any judgement. Therefore, the complainant organization considers that the Government should bear the responsibility for these violations of trade union rights and should compensate the workers accordingly.]
5. B. Additional information and new allegations
6. 452. In a communication dated 28 June 2001, the National Trade Union of Workers of Procter and Gamble Colombia (SINTRAPROCTERG) states that it has reached a conciliation settlement with Procter and Gamble Industrial Colombia Ltd. in respect of the complaint submitted to the Committee.
7. 453. In a communication dated 30 August 2001, the Trade Union of Workers of Antioquia Department (SINTRADEPARTAMENTO) notes that the 13 workers who had been dismissed together with 35 others following a work stoppage in the Department applied to the judicial authorities but did not receive a judgement in their favour and were not reinstated. The complainant organization alleges that these union members were dismissed on the same grounds as the 35 workers who had been dismissed and later reinstated.
8. 454. In its communication dated 16 October 2001, the Trade Union of Workers of “Cementos del Nare S.A.” (SINTRACENARE) alleges that Mr. Héctor Gómez, former trade union official and member of the union, was dismissed on 25 May 1995 in an act of anti-union persecution. The complainant organization indicates that it requested the enterprise to set up a dismissals committee, which was done on 18 August 1995, and it declared the dismissal of Mr. Gómez to be unjust and ordered his reinstatement, together with the payment of the wages and benefits he had failed to receive. The complainant organization states that the enterprise appealed against the decision made by the dismissals committee before the High Court of Medellín which ordered that the arbitral award be set aside and also indicates that the special judicial review proceedings lodged before the Labour Chamber of the Supreme Court of Justice were unsuccessful.
9. 455. In its communication dated 11 April 2002, the Union of State Workers of Colombia (UTRADEC) alleges that on 8 December 2000 the State ratified Convention No. 151 but that the measures necessary to implement the provisions of the Convention in respect of the negotiation of the employment conditions of public officials have not been adopted (according to the complainant organization, the legal secretariat of the Office of the President of the Republic twice refused to issue the regulatory decree to adopt measures to comply with the Convention).
10. 456. In their communications dated 4 and 16 June and 22 May 2002, the Single Confederation of Workers of Colombia, Antioquia executive board and the Union of “Official” Workers and Public Employees of the General Hospital of Medellín (SINTRA Hospital General de Medellín), allege that on 5 December 2001, they presented a document to the Labour Ministry which contained the petitions addressed to the administration of the General Hospital of Medellín, in order to start a negotiating round concerning these petitions. They added that the administration of the hospital has systematically refused to start the process of direct settlement of the labour dispute. For this reason, the trade union undertook public action for the application of the law before the Administrative Tribunal of Antioquia which ordered that the General Hospital of Medellín should apply Article 8 of Convention No. 151. The complainants point out that despite the decision of the Administrative Tribunal, the administration of the hospital has been refusing to start the negotiation.
11. C. Further replies of the Government
12. 457. In its communication of 3 June 2001, the Government states that the Ministry of Labour and Social Security, through the Territorial Directorate of Antioquia, initiated an administrative labour inquiry against the enterprise AVINCO S.A. in respect of the points contained in the complaint submitted to the ILO by SINTRAVI.
13. 458. The Government states that two conciliation hearings were scheduled. At the first, the enterprise AVINCO S.A. requested a copy of the complaint submitted to the ILO to enable it to respond. The legal representative of the enterprise AVINCO S.A. said that a trade union had been set up within the enterprise, and that in accordance with labour legislation, deductions for trade union dues had been made and also that trade union leave was granted. With respect to collective bargaining, the enterprise representative indicated that the meetings corresponding to the direct settlement stage had been held and that no agreement had been reached, resulting in the request to convene an arbitration tribunal in accordance with the provisions of Decree No. 801 of 1998 and Act No. 584 of 2000, which is the recognized channel for the settling of disputes directly between parties. The representative also stressed that with respect to the other rights to which the trade union considers it is entitled, and which have allegedly been violated, the decisions handed down by the administrative and judicial bodies have been adhered to.
14. 459. The Government states that the enterprise failed to attend the second hearing scheduled by the Territorial Directorate of Antioquia and the trade union organization confirmed the facts contained in the complaint submitted to the ILO; as a result it was decided to continue with the administrative labour inquiry, which is currently at the evidence stage. The Government indicates that it will inform the ILO of the final result of the inquiry.
15. 460. In its communication dated 4 September 2001, the Government states with regard to the pending allegations submitted by the complainant organization SINTRAMANCOL that the enterprise Manufacturas Colombianas Popayán “Mancol S.A.” terminated the employment contracts of the trade union officials of SINTRAMANCOL without prior approval by the labour judge, thereby infringing the provisions of article 405 of the Labour Code, which requires a legal decision prior to the dismissal of a worker covered by trade union immunity. In addition, it violated article 39 of the Constitution by failing to recognize the trade union immunity covering the members of the executive committee. The Government states that the Territorial Directorate of Cauca consequently handed down resolution No. 018 of 11 June 2001 in which the enterprise was ordered to pay 35 prevailing legal minimum wages (equivalent to 10,010,000 Colombian pesos). The Government indicates that an application for reconsideration was lodged against this resolution; this is currently being processed and the Government will subsequently send further observations on this application.
16. 461. In its communication of 4 June 2002, the Government states, with respect to the allegations submitted by the trade union organization SINTRACENARE, that Mr. Héctor Gómez was dismissed by the enterprise Cementos del Nare S.A., citing article 88, No. 17 of the in-house regulations and No. 8, clause (ñ) of the individual contract which provide that it is prohibited to participate actively or passively in acts of protest or meetings carried out in the various workplaces or in any of the enterprise’s facilities either during or outside working hours. The enterprise’s facilities include the areas where the managers’, professionals’ and employees’ offices are situated.
17. 462. The Puerto Nare branch of the trade union organization SUTIMAC consequently requested the enterprise concerned to convene the committee responsible for ruling on whether a worker’s dismissal has been just or unjust, in accordance with the provisions of clause 13 of the collective labour agreement. In an award dated 24 August 1995, the committee decided to reinstate the worker, a situation covered by clause 13, No. 3(2) of the prevailing collective labour agreement, which provides as follows: “If the committee decides by a majority to reinstate or retain the worker in his post, the company may insist on its decision to dismiss, in which case it shall pay the worker the following compensation plus an additional 12 per cent”.
18. 463. Clause 13, No. 5 of the collective agreement indicates as follows: “The decisions of the committee, with the exception of the authority given to the enterprise to insist on the dismissal, cannot be appealed against and are obligatory for the parties which have expressly resolved to submit this type of difference to the arbitration provided for in this clause and in so doing have renounced seeking recourse through legal channels”. Nevertheless, the Government indicates that the enterprise applied to the Labour Chamber of the High Court of Medellín, in order to homologate the decision of the abovementioned committee; the High Court of Medellín decided to set aside the arbitral award handed down on 24 August 1995 by the arbitration tribunal convened in this matter and instead declared that the dismissal of the worker Mr. Héctor Gómez had been for just cause.
19. 464. The Government adds that, as previously stated, SINTRACENARE submitted a claim against the enterprise Cementos del Nare S.A. for violation of clause 13 of the collective labour agreement to the Antioquia Regional Directorate of the Ministry of Labour and Social Security. In resolution No. 0082 of 18 March 1996, the administrative authority sanctioned the enterprise Cementos del Nare S.A. for violation of the abovementioned clause of the collective labour agreement. This decision was confirmed in resolution No. 0211 of 5 June 1996. Subsequently, the Regional Director of Labour and Social Security of Antioquia decided in resolution No. 085 of 27 August 1996 on the appeal lodged by the enterprise and revoked the two abovementioned resolutions, a decision based on the ruling handed down by the Labour Chamber of the High Court of Medellín. The Government indicates that if Mr. Héctor Gómez does not agree with the Government’s decision, he should initiate judicial administrative proceedings.
20. 465. In its communication dated 18 July 2002 the Government transmits, with regard to the allegations submitted by the trade union organization UTRADEC, a copy of the record signed by the district administration and the district trade union organizations, describing the establishment of a committee for consultation about the employment conditions of district public officials.

D. The Committee’s conclusions

1. 466. At its June 2001 meeting, the Committee urged the Government to take steps to begin an independent inquiry covering all the allegations made by the complainant organization SINTRAVI (the dismissal of five workers covered by trade union immunity after they had formed a trade union organization at the company AVINCO S.A.; pressure put on workers to accept the collective agreement and subsequent withdrawal of non-statutory benefits from unionized workers; pressure on workers to make them leave the union; and intransigence by the company in refusing to negotiate a list of demands) and requested it to communicate its observations on the basis of the inquiry’s findings.
2. 467. In this respect, the Committee notes the Government’s information that: (1) an administrative labour inquiry was initiated on the allegations submitted by the complainant organization and two conciliation hearings were scheduled; (2) during the first conciliation meeting, the enterprise representative indicated that: with respect to collective bargaining, meetings had been held corresponding to the direct settlement stage, but given that no agreement was reached, a request was made to convene an arbitration tribunal; as regards the other rights that the complainant organization considers have been violated, the enterprise is adhering to the decisions handed down by the administrative and judicial bodies; and (3) given that the enterprise representatives did not attend the second conciliation hearing and that the complainant organization confirmed the facts contained in the complaint, it was decided to continue with the administrative inquiry, which is currently at the evidence stage.
3. 468. The Committee regrets that the inquiry initiated by the authorities into serious allegations of violations of trade union rights has not yet been completed. In these circumstances, the Committee urges the Government: (1) to take measures to ensure that the inquiry is completed as soon as possible, that it covers all the allegations and to send the results; (2) if it is found that the five dismissed workers were covered by trade union immunity and that there was not just cause to dismiss them, to take measures to ensure the aggrieved workers are reinstated in their jobs, with no loss of pay and benefits; and (3) to keep it informed about the ruling handed down by the arbitration tribunal in relation to the collective bargaining process between SINTRAVI and AVINCO S.A.
4. 469. Concerning the allegations submitted by SINTRAMANCOL (still pending during the last examination of the case) relating to the dismissal of 12 trade union officials from the enterprise Mancol Popayán S.A., without authorization by the judicial authorities, the Committee notes the Government’s confirmation that the enterprise dismissed the trade union officials without judicial authorization thus violating the provisions of article 405 of the Labour Code and article 39 of the Constitution by failing to recognize trade union immunity. Likewise, the Committee notes the Government’s statement that, on that basis, the Territorial Directorate of Cauca sanctioned the enterprise with the payment of a fine of 35 legal minimum wages (sum equivalent to 10,010,000 Colombian pesos) and that the enterprise has lodged an application for reconsideration of the administrative resolution which imposed the sanction.
5. 470. In these circumstances, observing that the administrative authority has concluded that the dismissals in question were undertaken in violation of the provisions of national legislation, the Committee requests the Government to take measures to facilitate the reinstatement of the dismissed trade union officials and, if it is confirmed that the enterprise no longer exists as the complainant organization indicates, to ensure that the persons concerned are fully compensated.
6. 471. As regards the alleged dismissal of 13 workers from the Department of Antioquia affiliated to the complainant organization SINTRADEPARTAMENTO together with a further 35 workers (who were later reinstated) following a work stoppage, the Committee notes with regret that the Government has not sent its observations. It observes, however, that in its previous examination of the case, when dealing with the allegation concerning the dismissal of workers from the Department, the Government had informed it that the 35 workers who had been reinstated had taken legal action and that the 13 remaining had not done so [see 325th Report, para. 349]. The Committee notes the complainant organization’s statement that the 13 workers who were not reinstated also took legal action but that they were unsuccessful, although they had been dismissed on the same grounds as the 35 who were reinstated. This being the case, the Committee requests the Government to notify it of the specific grounds for the dismissal of these 13 workers and to send a copy of the corresponding legal decision.
7. 472. Regarding the allegation submitted by the complainant organization SINTRACENARE concerning the anti-union dismissal of the trade union official Mr. Héctor Gómez from the enterprise Cementos del Nare S.A. on 25 May 1995, the Committee notes the Government’s information that: (1) to dismiss Mr. Gómez the enterprise invoked the provisions of the in-house regulations and the individual contract which do not permit active or passive participation in acts of protest or meetings carried out at the workplace or in any of the enterprise’s facilities either during or outside working hours; (2) in accordance with the collective agreement, the trade union requested the convening of a committee responsible for deciding whether or not the dismissal had been for just cause; (3) the committee in question decided to reinstate the worker on 24 August 1995; (4) clause 13(5) of the collective agreement provides that the decisions of the committee, with the exception of the authority given to the enterprise to insist on the dismissal – in which case it must pay the worker the compensation due plus an additional 12 per cent – cannot be appealed against and are obligatory for the parties; the latter expressly decided to submit this type of difference to arbitration as provided in the clause in question and consequently renounced using legal channels; (5) the enterprise applied to the High Court of Medellín in order to homologate the ruling of the dismissals committee and that court decided to set aside the ruling and declared that the dismissal of Mr. Héctor Gómez had been for just cause; (6) consequently, the complainant organization submitted a claim against the enterprise to the Ministry of Labour and Social Security, Antioquia Regional Directorate, for the violation of clause 13 of the collective agreement and by way of resolutions dated 18 March and 5 June 1996, the administrative authority sanctioned the enterprise; and (7) the enterprise lodged an appeal against these resolutions and the Regional Director of Labour and Social Security of Antioquia decided to revoke them on the basis of the ruling handed down by the High Court of Medellín, with the possibility remaining that Mr. Gómez could initiate judicial administrative proceedings.
8. 473. In this respect, first of all the Committee regrets that the decision of a body established in accordance with the prevailing collective agreement was not respected. The Committee observes with concern that it has recently examined allegations concerning non-compliance with current collective agreements and recalls that on that occasion it stressed that “the Collective Agreements Recommendation, 1951 (No. 91) provides in Part III that ‘collective agreements should bind the signatories thereto and those on whose behalf the agreements is concluded’ and emphasizes therefore that ‘agreement should be binding on the parties’ and that ‘mutual respect for the commitment undertaken in the collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground’” [see 325th Report, Case No. 2068, Colombia, para. 329].
9. 474. More specifically in relation to the dismissal of Mr. Héctor Gómez from the enterprise Cementos del Nare S.A., so as to be able to give its views with all the information before it, the Committee requests the Government: (1) to send it the text of the legal decision to set aside the ruling of the dismissals committee ordering his reinstatement; (2) to inform it whether Mr. Gómez has initiated judicial administrative proceedings; and (3) to inform it whether he has been paid the corresponding compensation dismissal plus an additional 12 per cent, which the Government indicated he would be entitled to under the provisions of the prevailing collective agreement.
10. 475. With respect to the allegations submitted by the Union of State Workers of Colombia (UTRADEC) concerning the Government’s failure to adopt measures to comply with the provisions of Convention No. 151 relating to the negotiation of the employment conditions of public officials, the Committee notes the Government’s information that the district administration and the district trade union organizations signed a document recording the establishment of a committee for the consultation of the employment conditions of district public officials. In this respect, the Committee recalls that when it gave its views recently concerning a complaint submitted against the Government of Colombia, it referred to the right to collective bargaining of public servants, and therefore refers to the conclusions made on that occasion [see 325th Report, Case No. 2068, Colombia, para. 323]:
    • The Committee observes that, while some categories of public servants must have already enjoyed the right to collective bargaining under Convention No. 98, this right is recognized in general for all public servants as of the ratification of Convention No. 154 on 8 December 2000. In these circumstances, recalling that special modalities of application may be fixed with regard to collective bargaining in the public service, the Committee requests the Government to take the necessary measures to ensure that the right of public servants to collective bargaining is respected in accordance with the provisions of the Convention which has been recently ratified.
11. 476. The Committee requests the Government to take measures without delay to ensure that these recommendations are fully applied.
12. 477. Concerning the allegations submitted by the complainant organization SINTRAPROCTERG that had remained pending, the Committee notes that in a communication dated 28 June 2001 that organization stated that it had reached a conciliation settlement with Procter and Gamble Industrial Colombia Ltd. concerning the complaint submitted to the Committee. This being the case, the Committee will not pursue the examination of the allegations submitted by this organization.
13. 478. Finally, the Committee requests the Government to communicate its observations on the allegations submitted recently by the Single Confederation of Workers of Colombia (CUT), Antioquia executive board, and the Union of “Official” Workers and Public Employees of the General Hospital of Medellín (SINTRA Hospital General de Medellín).

The Committee's recommendations

1. 479. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the inquiry initiated by the authorities into serious allegations of violations of trade union rights submitted by the complainant organization SINTRAVI has not yet been completed and urges the Government: (1) to take measures to ensure that the inquiry is completed as soon as possible, that it covers all the allegations and to send its results; (2) if it is found that the five dismissed workers were covered by trade union immunity and that there was not just cause to dismiss them, to take measures to ensure the aggrieved workers are reinstated in their jobs, with no loss of pay and benefits; and (3) to keep it informed about the ruling handed down by the arbitration tribunal in relation to the collective bargaining process between SINTRAVI and AVINCO S.A.
   • (b) Observing that the administrative authority has concluded that the dismissals of the 12 trade union officials belonging to the organization SINTRAMANCOL occurred in violation of the national legislation, the Committee requests the Government to take measures to facilitate the reinstatement of the dismissed trade union officials and if it is confirmed that the enterprise no longer exists, as the complainant organization indicates, to ensure that the persons concerned are fully compensated.
   • (c) With respect to the allegation concerning the dismissal of 13 workers from the Department of Antioquia affiliated to SINTRADEPARTAMENTO together with a further 35 workers (who were later reinstated) following a work stoppage, the Committee requests the Government to notify it of the specific grounds for the dismissal of these 13 workers and to send a copy of the corresponding legal decision.
   • (d) Regarding the dismissal of Mr. Héctor Gómez from the enterprise Cementos del Nare S.A., so as to be able to give its views with all the information before it, the Committee requests the Government: (1) to send it the text of the legal decision setting aside the ruling of the dismissals committee ordering his reinstatement; (2) to inform it whether Mr. Gómez has initiated judicial administrative proceedings; and (3) to inform it whether he has been paid the corresponding compensation for dismissal plus an additional 12 per cent, which the Government indicated he would be entitled to under the provisions of the prevailing collective agreement.
   • (e) Recalling that special modalities of application may be fixed with regard to collective bargaining in the public service, the Committee requests the Government to take the necessary measures to ensure that the right of public servants to collective bargaining is respected in accordance with the provisions of the Convention which has been recently ratified.
   • (f) The Committee requests the Government to communicate its observations on the allegations submitted by the Single Confederation of Workers of Colombia (CUT), Antioquia executive board, and the Union of “Official” Workers and Public Employees of the General Hospital of Medellín (SINTRA Hospital General de Medellín).