Rapport définitif - Rapport No. 103, 1968

Cas no 490 (Colombie) - Date de la plainte: 09-NOV. -66 - Clos

1. 36. This case was considered by the Committee at its sessions in May and November 1967, on which occasions it submitted its interim conclusions to the Governing Body in paragraphs 28 to 46 of its 99th Report and in paragraphs 299 to 318 of its 101st Report. The Governing Body approved these reports at its 169th Session (June 1967) and 170th Session (November 1967) respectively.
2. 37. Colombia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to Legislative Decree No. 939 of 20 April 1966
  38. 38 The Committee considered this aspect of the case at its sessions in May and November 1967.
  39. 39 On the first of these occasions the Committee noted (paragraph 41 of its 99th Report) that, by virtue of section 2 of Decree No. 939 of 20 April 1966, if by the fortieth day of a strike the parties by mutual consent, or the workers alone, have not requested a compulsory arbitration board to be set up, the Ministry of Labour may order the case to be submitted to such a board and may in this way, in accordance with section 3, terminate the strike within the following three days. " The Ministry would seem to be empowered so to act ", the Committee commented, " even when the workers or their unions consider the continuation of the strike useful to the defence of their occupational interests, and not only in cases where essential services or the civil service are affected but in all kinds of strikes. Consequently the application of the decree would appear to entail the risk of restricting potential trade union activities, even in cases where the services suspended by the strike are not essential and are not part of the civil service."
  40. 40 The Committee observed that the allegations relating to the right to strike were " not outside its competence in so far as they affect the exercise of trade union rights ", and in paragraph 46 (b) of its 99th Report recommended that the Governing Body " suggest to the Government that it may care to reconsider the provisions of sections 2 and 3 of that decree in the light of the principles and considerations set forth in paragraphs 39 to 41 above ".
  41. 41 At its session in November 1967 the Committee considered certain observations made by the Government in response to the conclusions just quoted. Amongst other things, the Government affirmed that the decree was beneficial in its effects on society and in no way restricted the unions. It felt that all services in a developing country could legitimately be considered " essential ".
  42. 42 The Committee did not consider that such arguments called for any modification of the conclusions it had already reached, and in paragraph 318 (b) of its 101st Report it recommended the Governing Body:
      • (b) with regard to the allegations relating to Legislative Decree No. 939 of 20 April 1966;
      • (i) to draw the Government's attention to the fact that a restrictive provision such as that contained in this decree may sometimes constitute a considerable restriction on the potential activities of trade unions and hence run counter to the generally accepted principles of freedom of association;
      • (ii) to suggest to the Government that it may care to reconsider the provisions of sections 2 and 3 of the decree in question in the light particularly of the above principle and to request the Government to be good enough to inform the Governing Body of the action it intends to take in this connection.
  43. 43 These recommendations, having been approved by the Governing Body, were forwarded to the Government. The latter, in a communication dated 8 January 1968, said that the fact that Decree No. 939 was in force had in no way held up negotiations between the parties concerned. It added that the workers could launch a strike in the confident knowledge that they would not be defeated, since in any event the decision taken on their claims would be just, and hence favourable to them. From August 1966 to December 1967, 25 arbitration boards had been convened (eight at the request of the parties concerned and 17 by the Ministry, as provided for in the decree). During the same period, 575 collective agreements and 68 collective contracts had been entered into, which showed that a mere 2.54 per cent of disputes had led to the convening of an arbitration board by the Ministry.
  44. 44 The Government once more emphasises that in its view all services in a developing country are essential, and it adds that in such a country, where trade union funds are apt to be inadequate, a strike of indefinite length is not in the interests of the workers themselves.
  45. 45 Hence the Government is merely enlarging on arguments which, when adduced on a previous occasion, did not lead the Committee to modify its final conclusions with regard to this aspect of the matter. These conclusions were repeated in the Committee's 101st Report, which was approved by the Governing Body.
  46. 46 The Committee wishes to make it clear that the point at issue here relates exclusively to the freedom of action of trade unions when legal provisions exist which enable the Government, after a certain time, to impose compulsory arbitration, and thus, indirectly, to put a stop to a strike. Hence the Committee does not, in this instance, feel called upon to give its views on other, more general, questions, such as whether or not the various activities involved could be considered " essential ". This point was not raised in the allegations, and has incidentally been considered already in cases involving Colombia.
  47. 47 In these circumstances the Committee considers that there are no grounds for re-examining the matters at issue here.
• Allegations relating to the Dismissal of Trade Union Members and Other Acts of Discrimination by an Undertaking
  48. 48 The allegations concerning anti-trade union action said to have been taken by the firm of Hermega remain to be considered
  49. 49 In brief, it is asserted that this firm, on being authorised to make a 30 per cent staff cut, dismissed union members first; it is also alleged that the management prohibited the leaders of the union from communicating with each other at work, whether during working hours or rest periods; that it was not paying the trade unions the dues withheld from wages; and that executives of the firm had promised better conditions to workers if they resigned from the union. In December 1966, it is asserted, a Mrs de Monguí was dismissed without just cause, five days after joining the union and one day after confirming to the management that she had joined it. The complainants enclose copies of the communications they sent to the authorities denouncing this state of affairs.
  50. 50 The Government confirms that the firm of Hermega had been authorised to make staff reductions by virtue of a Ministerial Resolution, the text of which, nevertheless, safeguarded the position of workers enjoying " trade union privileges ".
  51. 51 The Committee, having been informed by the Government that an inquiry was under way, recommended (paragraph 318 (c) of its 101st Report) that the Governing Body ask the Government about the outcome of the inquiry.
  52. 52 The Committee also asked (paragraph 318 (d)) for the Government's comments on the other allegations made.
  53. 53 With its answer, dated 8 January 1968, the Government sent a verbatim text of a decision by the Head of the Collective Disputes Department of the Ministry which, on the basis of the inquiry, absolves the firm from the accusations made against it. From the preamble to the decision it seems that the investigating official, as a result of talking to various workers in the undertaking and to members of the managerial staff, and from his inspection of books and documents, ascertained that no workers enjoying trade union guarantees had been dismissed. Furthermore, the undertaking had complied with the Ministry's recommendation that in making staff reductions every effort should be made to keep the workers with the heaviest family responsibilities and the longest service.
  54. 54 The Government explains that no formal investigation was made into the other acts of discrimination mentioned in the complaint since the allegations in this respect unlike the charges of unjustified dismissal-were not confirmed under oath.
  55. 55 In a previous case, the Committee has pointed out that its terms of reference do not include the problem of breach of employment contract by dismissal, unless the dismissal was an act of anti-union discrimination. In this particular instance, the Committee notes that when the firm was authorised to reduce its staff, those workers who under the legislation in force enjoyed " trade union privileges " were specifically exempted from dismissal. Furthermore, general criteria for dismissal were laid down for all workers, whether members of a union or not.
  56. 56 The Government affirms that the remaining allegations were not investigated because the complainants' charges were not confirmed under oath. However, the Committee notes that, as regards one of these allegations, the complainants did supply definite details, namely with respect to Mrs de Monguí, who is said to have been dismissed for joining the union.
  57. 57 Accordingly, having given due weight to the information provided by Government and complainants, the Committee would once more stress the importance it has always attached to the generally acknowledged principle that workers should be adequately protected against any act of discrimination calculated to impair their freedom of association with respect to their employment. It is especially important that this protection should be effective against any act designed to make a worker's employment conditional on his not joining, or ceasing to belong to, a union, or to dismiss or otherwise penalise him for union membership or for his participation in union activities, whether outside working hours or (when this has been authorised by the employer) within them.

The Committee's recommendations

1. 58. In these circumstances, and with respect to the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations of anti-union discrimination by an undertaking in the process of reducing its staff, to note that, according to the Government's investigation, no workers enjoying trade union privileges were dismissed; furthermore, it seems that for the purposes of dismissal, general criteria were observed which were applicable to all workers, whether or not they were union members;
   • (b) with regard to the alleged dismissal of a woman worker because of her membership of a union, and in view of the information supplied by complainants and the Government, to inform the latter of the importance which the Governing Body attaches to the principle mentioned in paragraph 57 above;
   • (c) subject to this principle, to decide that the allegations mentioned in subparagraphs (a) and (b) above do not call for further consideration.