Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 354, Junio 2009

1. 485. The complaint was lodged in a communication dated 18 September 2007 from the National Union of Food Industry Workers (SINALTRAINAL). In a further communication dated 26 October 2007, the union supplied further information. SINALTRAINAL presented additional allegations in communications dated 25 March, 1 April and 4 June 2008. In a communication dated 4 February 2009, the union presented additional information.
2. 486. The Government sent its observations in communications dated 6 December 2007, 25 April, 22 and 27 August 2008 and 9 February 2009.
3. 487. 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. The complainant’s allegations

1. 488. In its communications dated 18 September and 26 October 2007, 25 March, 1 April and 4 June 2008, and 4 February 2009, SINALTRAINAL alleges that serious acts of intimidation have been committed against the union’s officials and its members, in some instances by bottling plants (Embotelladora de Santander SA, Embotelladora Román SA, Panamco Colombia SA, Coca-Cola Femsa and Embotelladora de Carepa) and in others by paramilitary organizations, in order to dissuade them from engaging in trade union activities. The complainant also cites instances of anti-union action by other companies, to which reference will be made later in this report.
2. 489. The complainant organization states that the companies it cites have been pursuing a highly anti-union policy for more than 20 years. It refers to a series of arbitrary searches and arrests without a warrant that have occurred since 1984. Union members and officials have been kidnapped by paramilitary groups and warned not to lodge complaints against the companies. According to the complainant, the physical integrity and security of its members has been violated, they have been physically aggressed, and 32 of them have received threats. Complaints about the incidents have been lodged but the subsequent inquiries have led to nothing. According to SINALTRAINAL, many workers have given up their union activities as a result, for fear of reprisals. It adds that these violations of fundamental rights are part of a policy pursued by the State, the companies and the paramilitary groups in order to greatly restrict freedom of association. In its communications the complainant organization describes in detail numerous instances of violence, threats and intimidation, including the assassination and attempted assassination of several officials and members of SINALTRAINAL.
3. 490. According to the complainant organization the companies have stigmatized the union officials over the years in order to justify their harassment and repression, and have tried to criminalize social protest and freedom of thought, opinion and association, so as to frighten the workers and discourage them from becoming members. There have been false accusation of calumny and detraction, association for the purpose of committing a crime, terrorism and rebellion, participation in guerrilla groups, sabotage, damage to property and qualified theft, applications for the suspension of the immunity of trade union officials so that they can be dismissed, etc. In the cases that have been brought to trial the judges have rules in favour of SINALTRAINAL officials and declared them not guilty, in spite of which some of them have had to stay in prison until they have cleared their name.
4. 491. According to SINALTRAINAL, on 9 December 1996 members of paramilitary groups entered the Carepa bottling plant, called the members of SINALTRAINAL together and obliged them under threat to sign letters of resignation from the union that were printed from company computers.
5. 492. The complainant organization alleges that several bottling plants do not respect freedom of association. In 2000 the judicial authority found Embotelladora de Santander SA guilty of violating the collective agreement; the company was subsequently condemned in court in 2001 to pay the union dues it owed SINALTRAINAL, but it appealed the decision and the case is still pending. Finally, several officials of the bottling plant were fined for not respecting the right to hold meetings and the right of association.
6. 493. The complainant organization further alleges that in 2003 the Coca-Cola Femsa company brought pressure to bear on workers and threatened them to accept compensation in exchange for the resignation or else face dismissal. Complaints were lodged with the authorities, but to no effect. It adds that the Higher Court of the Judicial District of Medellín ordered that a number of the workers who were dismissed be reinstated in their jobs.
7. 494. The complainant organization also refers to the closure of production centres and bottling plants in 2003, which led to the dismissal of a large number of workers. A number of appeals for trade union immunity were brought before the courts, some of which ruled in favour of their reinstatement of the workers and some in favour of the bottling plants.
8. 495. SINALTRAINAL further alleges that on 8 July 2004, Coca-Cola Femsa requested the Ministry of Social Welfare to revoke SINALTRAINAL’s by-laws so as to prevent subcontracted workers from becoming members of the trade union organization. As a result, the Coordinating Board of the Labour, Employment and Social Security Group adopted Resolution No. 2994 revoking SINALTRAINAL’s by-laws. According to SINALTRAINAL, the Resolution was passed before it was properly notified of the request for revocation. The District Council of the Judiciary of Cundinamarca ruled that SINALTRAINAL’s application for trade union protection was legitimate, but the application was rejected on procedural grounds and its appeals denied. The complainant adds that the National General Meeting of Delegates of SINALTRAINAL, which was held from 3 to 7 December 2007 in the Municipality of Cachipay, department of Cundinamarca, approved the amendments to the by-laws declaring that the trade union was comprised of food and agriculture and allied workers, under various employment relationships and working methods. It defined the union as a democratic and class organization whose fundamental objective is to demand and promote full economic, social, cultural and labour rights, and to defend political freedoms, social welfare, national food sovereignty, the natural environment, peace, genuine democracy, solidarity, the fight against poverty, and solidarity and unity with the international trade union movement. The amendments were registered with the Ministry of Social Welfare of the Territorial Directorate of Cundinamarca in accordance with the law, and in Resolution No. 0005 of 14 January 2008, the Labour and Social Security Inspectorate of Facatativa approved the registration of the amended by-laws and declared that they were in compliance with the Political Constitution of Colombia. However, on 8 February 2008, the Panamco Colombia SA bottling company opposed the amended by-laws and accused SINALTRAINAL of procedural fraud and tried to deceive the authority into treating a perfectly legal situation as something that was illegal, so as to prevent SINALTRAINAL from amending its by-laws, on the grounds that in 2004 they were not legally registered, while ignoring the fact that a legal protection judge of Colombia had ruled that it was a fundamental right of all workers and other persons to join a trade union irrespective of the type of labour or contract concerned. The complainant organization notes that on 25 March 2008, the Coordinating Board of the Labour, Employment and Social Security Group of the Territorial Directorate of Cundinamarca issued Resolution No. 000984 annulling Resolution No. 0005 of 14 January 2008, and thus denying the registration and adoption of SINALTRAINAL’s amended bylaws. Without any legal basis, the Ministry argued that it was the same amendment made to SINALTRAINAL’s by-laws in 2001, and which the same official had refused in 2004. The Ministry now maintains that decision, which it makes even worse by adopting almost word for word the terminology proposed by Panamco Colombia SA on 8 February 2008, to the effect that the law was not properly analysed and that moreover, the Board had assumed the powers of a judge of the Republic and of the Constitutional Court itself which were outside its competence, amounting to a case of fraud.
9. 496. The complainant also refers to a number of lawsuits brought by two bottling plants, Panamco Colombia SA (now Coca-Cola Femsa) and Embotelladora Román SA, by Compañía Nacional de Chocolates SA, by Supertiendas y Droguerías Olímpica SA and by Eficacia SA in a bid to have the official registration annulled of trade unions or of the new executive boards of union branches in a number of cities, such as Girardot, Cali, Villavicencio, Bucaramanga, Santa Marta and Bogotá. The annulments were called for on the basis that there were not enough members to form a subcommittee and on the companies’ claim that the workers seeking to join the union were not food sector workers but were employed in service enterprises operating in the sector. Only in a few cases was the right of association upheld and the lawsuits decided in favour of SINALTRAINAL. In others, the annulment of the unions’ registration or the refusal to recognize the members of their executive committees meant that the companies were able to dismiss the workers who were exercising their trade union rights. As a result:
10. – On 22 August 2003, the Cundimarca Circuit Labour Court issued court order No. 0236-03 in favour of a special request to have the Girardot branch trade union dissolved and its registration revoked. The request had been submitted by Panamco Colombia SA on the grounds that the Girardot branch union did not have the minimum legal membership, as its members were in fact independent workers in the food sector. By Resolution No. 0153 of 6 February 2004, the Ministry of Social Welfare ordered the registration of the executive board of the Girardot branch union of SINALTRAINAL; but on 9 March 2004, Panamco Colombia SA lodged an appeal for a new examination of the case and on 25 August 2004 the Ministry of Social Welfare issued Resolution No. 00003196 revoking the registration of the executive board. On 7 December 2004, the Ministry of Social Welfare notified the trade union in Girardot, Cundinamarca, of Resolution No. 02065 of 30 November 2004, revoking the registration of its executive board at the request of Panamco Colombia SA.
11. – On 4 January 2002, Embotelladora Román SA submitted a request for the dissolution, liquidation and de-registration of the Santa Maria branch trade union, on the grounds that it did not meet the legal requirements for its recognition. On 4 March 2004, the Third Labour Circuit Court of Santa Maria denied the request.
12. – By Resolution No. 00627 of 13 December 2004, the Ministry of Social Welfare registered the executive board of SINALTRAINAL’s Villavicencio branch union; but on 18 January 2005, Panamco Colombia SA lodged an appeal for a new examination of the case, and on 25 August 2004, the Ministry of Social Welfare issued Resolution No. 00319 of 26 July 2005 dissolving the executive board elected on 30 November 2005.
13. – At the request of Panamco Colombia SA, the Ministry of Social Welfare issued court order No. 00001700 of 29 June 2005 annulling the registration of the executive board of the Bogotá branch union which had been elected on 18 March 2005, on the grounds that it did not have a large enough membership as some of the members were independent workers in the food sector.
14. – By Resolution No. G0287 of 27 March 2006, the Ministry of Social Welfare ordered the registration of the executive board of the Bucaramanga branch union of SINALTRAINAL, but on 7 and 18 April 2006 Compañía Nacional de Chocolates SA and Acueducto Metropolitano de Bucaramanga requested a new examination of the case and on 29 December 2006 the Ministry of Social Welfare issued Resolution No. 2022 partially dissolving the executive board.
15. – By Resolution No. 000629 of 17 April 2006, the Ministry of Social Welfare ordered the registration of the executive board of SINALTRAINAL’s Cali branch union; but on 9 May 2006 Panamco Colombia SA challenged the decision. By Resolution No. 2022 of 28 September 2006, the Ministry confirmed the board’s registration.
16. – By Resolution No. 361-062 of 2 November 2006 the Ministry of Social Welfare registered the executive board of SINALTRAINAL’s Santa Marta branch union; but in a letter dated 17 November 2006 Empresa Supertiendas and Droguerías Olímpica SA requested a new examination of the case, and on 16 January 2007 the Ministry of Social Welfare issued a Resolution partially annulling the registration of the board. The company thereupon ordered the indiscriminate dismissal of workers.
17. 497. SINALTRAINAL adds that in 2006 Eficacia SA, refused to deduct the union dues owing to SINALTRAINAL or to recognize the complaints committee, arguing that it was not part of the sector covered by SINALTRAINAL, which was food sector. According to the complainant, although the workers were employed by Eficacia SA, they had in fact been working for years for the Santander SA bottling plant. Some 70 per cent of Santander SA’s employees were subcontracted, and the company refused to grant them the rights negotiated under its collective agreement with SINALTRAINAL on the grounds that it applied only to workers it employed directly. According to the allegation, this left the Eficacia SA workers in an extremely precarious situation.
18. 498. The complainant organization goes on to state that, using the same argument, Eficacia SA refused to negotiate the list of demands presented by SINALTRAINAL on 25 August 2006. Consequently, SINALTRAINAL requested the Ministry of Social Welfare to order the company to negotiate, and to impose sanctions if it refused. However, the Ministry merely sent SINALTRAINAL a letter from Eficacia SA explaining why it was not obliged to negotiate. The Ministry itself took no decision. Since then the company has engaged in a campaign of threats to prevent its workers from joining the union and has dismissed those who attempted to do so.
19. 499. According to the allegation, on 15 February 2007, Coca-Cola Femsa called a meeting of the workers subcontracted from Eficacia SA and informed them their contract had ended but that they could be subcontracted through another enterprise, PROSERVIS. However, according to the allegation, the workers affiliated to SINALTRAINAL were not taken on again.
20. 500. SINALTRAINAL states that article 2 of its by-laws reads as follows: “The membership of the National Union of Food Industry Workers (SINALTRAINAL) shall comprise workers linked to enterprises whose purpose is to cultivate, harvest, manufacture, dehydrate, pulverize, package, prepare, buy, sell, distribute, export or import food products or products that are to be mixed with any food products.”
21. 501. According to SINALTRAINAL the company’s legal argument is aimed at all the workers and supposedly justifies its refusal to negotiate the list of demands the union presented on 4 September 2006 in order to establish minimum rights for the subcontracted workers. Such workers are subjected to degrading working conditions; they are not covered by any collective agreement; they are paid minimal salaries; their right to freedom of association is not respected; and they are victims of abuse.
22. 502. SINALTRAINAL alleges that Andrés Olivar was suspended from work for having taken union leave. It also alleges that the Villavicencio and Bogotá bottling plants dismissed workers after they joined SINALTRAINAL in March 2007. This happened to 16 distributors and one other worker in Villavicencio and to Edgar Alfredo Martínez Moyano in Bogotá.
23. 503. Another service enterprise under contract to Coca-Cola Femsa, Ayuda Integral SA, refused to negotiate collectively the list of demands presented by SINALTRAINAL or to recognize its workers affiliation to the union.
24. 504. SINALTRAINAL further alleges that the Santander Territorial Directorate of the Labour, Employment and Social Security Group of the Ministry of Social Welfare refused to register Ernesto Estrada Prada as a member of the union’s executive board because he is under contract to a service enterprise, Empaques Hernández, which is a supplier of services to Saceites SA where he is employed.
25. 505. SINALTRAINAL adds that the Ministry of Social Welfare has ruled that the workers of Acueducto Metropolitano de Bucaramanga cannot join SINALTRAINAL because they are not food workers. According to the complainant, the company stocks drinking water for human consumption.
26. 506. In its communication of 4 February 2009, SINALTRAINAL refers to the legal status in Colombia of the companies Coca-Cola SA, Coca-Cola FEMSA SA, Embotelladoras de Santander SA, Embotelladoras Roman SA, Indega SA and Bebidas y Alimentos de Urabá SA and indicates:
27. – The companies Coca-Cola FEMSA SA, Embotelladoras de Santander SA, Embotelladoras Roman SA, Indega SA and Bebidas y Alimentos de Urabá SA are directly linked to and are controlled by Coca-Cola SA or Coca-Cola Company SA, by means of a franchise contract, access to which is evidently not possible, being confidential in nature.
28. – In the case of Panamco, which had direct control of Embotelladoras de Santander SA, Embotelladoras Roman SA and Indega SA, it is controlled by Coca-Cola Company or Coca-Cola SA, not only as a franchise, but also through stock ownership equivalent to 24 per cent and representatives on the board of directors and is one of the main bottlers of the Coca-Cola Company, registered as Panamerican beverages.
29. – Coca-Cola FEMSA SA acquired Panamco for $3.6 million and thereby automatically acquired Embotelladoras de Santander SA, Embotelladoras Roman SA and Indega SA by which Coca-Cola SA or Coca-Cola Company thereby increase not only its control, but also its stock ownership and representation on the board of directors.
30. – Coca-Cola FEMSA SA appeared on the letterhead of a document dated 29 October 2008 and signed by Embotelladoras de Santander SA, giving notice of approval of the merger and acquisition (of the latter) by Industria Nacional de Gaeseosas SA.
31. – Industria Nacional de Gaeseosas SA is the same company as Indega SA.
32. – Coca-Cola SA or Coca-Cola Company is registered to Coca-Cola Services of Colombia SA, through which it executes its operations with its bottlers.
33. – Embotelladoras Roman SA was acquired in the same way by Coca-Cola FEMSA SA.
34. B. The Government’s reply
35. 507. In its communications dated 6 December 2007, 25 April, 22 and 27 August 2008 and 9 February 2009, the Government states that the allegations concerning human rights (non-respect of the inviolability of people’s home and of their right to personal freedom) and the accusations of terrorism and rebellion should be examined under Case No. 1787. It adds that the office of Cooperation and International Relations has sent a copy of the allegations to the Human Rights Coordinating Board of the Ministry of Social Welfare for it to initiate appropriate inquiries.
36. 508. Regarding the legal status of the companies cited in the allegations and the links between them, the Government encloses information submitted by Industria Nacional de Gaseosas (INDEGA), according to which:
37. 1. Coca-Cola Femsa is a member of a corporate group of Mexican origin that bottles non-alcoholic drinks (including drinks bearing The Coca-Cola Company trademark) in a number of Latin American countries. In Colombia, Coca-Cola Femsa operates through the corporate group Industria Nacional de Gaseosas, which is controlled by the company Industria Nacional de Gaseosas SA (formerly PANAMCO Colombia SA).
38. 2. In December 2008, Industria Nacional de Gaseosas SA took over Embotelladoras de Santander SA and Embotelladora Román SA (both belonging to the Industria Nacional de Gaseosas group), as a result of a merger process.
39. 3. The correct name of the company was Embotelladora Román SA, not Embotelladora San Román. Our company in Colombia has nothing to do with the control or management of either of these companies.
40. 4. Coca-Cola Servicios de Colombia SA is a company that belongs to The Coca-Cola Company. Their relationship is strictly commercial and is based on a bottling contract with The Coca-Cola Company, under which the latter authorizes Coca-Cola Femsa to bottle and market its products in various parts of Colombia.
41. 5. As for Embotelladora Carepa, we confirm that our company has no relationship whatsoever either with that establishment or with its holding company Bebidas y Alimentos de Urabá SA However, (i) we are aware that Embotelladora Carepa operates in Urabá, and (ii) our bottling contract does not cover that area, and therefore, we cannot operate there.
42. 509. For the rest, the Government, basing itself on the observations sent by the INDEGA group and by the Inspection, Monitoring and Enforcement Group of the Ministry of Social Welfare, makes the observations below.
43. 510. Following a brief summary of the group’s activities in keeping with the right to freedom of association, INDEGA states that it operates within the framework of the Constitution and legislation of Colombia and is deeply committed to the observance of human rights, the right of association, collective bargaining and the furtherance of trade union activities.
44. 511. INDEGA works with more than 16 trade union organizations, with which it has entered into three collective agreements that are renegotiated every two years. All three are currently in force, and SINALTRAINAL was party and signatory to all of them. Some 30 per cent of INDEGA’s employees belong to a trade union, one of which is SINALTRAINAL. At each of its plants, the company maintains an open and permanent dialogue with the union shop stewards; it also provides financial assistance to all 18 executive boards registered in the country, more than half of which are part of SINALTRAINAL. In addition, the company encourages trade union activity by offering a number of tangible advantages that guarantee freedom of association. For example, it grants the trade unions 6,000 days of paid leave for union activities, as well as US$500,000 in funding of which SINALTRAINAL, with 40 per cent of the overall membership, is the principal beneficiary.
45. 512. INDEGA adds that it is committed to preserving the integrity and security of the workers, and duly and diligently does everything it can in that direction. The company has a specific plan with appropriate procedures and resources for dealing with security issues raised by SINALTRAINAL. It is in permanent contact with the human resources directorates of the Ministry of the Interior and with the Office of the Vice-President of the Republic, which are responsible for issuing security plans to over 6,000 people in Colombia, of which 1,500 are trade union officials, with an annual investment of US$40 million. The company holds regular meetings with SINALTRAINAL’s officials and members to assess any security problems that might arise and provides direct assistance in the form of cell phones, paid leave, transport, housing subsidies, flexible working hours and other kinds of help in addition to that afforded by the Government. Whenever workers and their organizations have been subjected to threats, the company has recommended that the authorities be informed and be requested to conduct an inquiry into the matter and adopt appropriate protective measures.
46. 513. Regarding the restructuring process, the company states that it was obliged to introduce a plan to streamline its production line which was overstaffed in terms of market requirements at the time, and this generated high costs and a loss of competitivity that threatened the stability of the enterprise. It therefore invited some of its collaborators from plants whose production was being cut back, irrespective of whether they were union members or not, to consider a voluntary retirement plan. The plan envisaged financial incentives beyond those required by law or by the collective agreement, along with additional benefits. To implement its offer it contracted the services of an enterprise specializing in career guidance and reconversion to provide advice to those who wanted to accept the voluntary retirement plan.
47. 514. The voluntary retirement plan was taken up by 220 production workers throughout the country, some of them members of trade unions and others not, with whom financial arrangements were reached that on average were 250 per cent above the legal requirements. Of all those who left the company, less than one-third were members of SINALTRAINAL. Since some of the collaborators turned down the plan and the number of vacancies corresponding to their profile was limited, the company requested the Ministry of Social Welfare to authorize their collective dismissal. The Ministry gave its approval for the dismissal of 88 production workers in the country as a whole (copy of the authorization attached). Once the administrative procedure was completed, the company began judicial proceedings to implement the decision. A dialogue was maintained with the trade unions throughout the process. In the specific case of SINALTRAINAL, and after several months of discussion, the company and the union reached an agreement that entailed both sides dropping the judicial proceedings they had initiated, along with the relocation of some workers and the retirement by mutual consent of others, with whom a conciliation procedure was engaged through the Ministry (copy attached). In accordance with the agreement, the union undertook not to engage in any further legal action with respect to the reorganization of production and the Ministry of Social Welfare’s authorization of the collective dismissal. Similarly, and as part of the agreement, the company undertook to relocate 24 workers.
48. 515. The Government stresses that the termination of the workers’ contracts was unrelated to their union membership and that before beginning the collective dismissal process the company duly consulted the organization.
49. 516. Regarding the accusation of slander the company states that the accused distributed printed material denouncing the company for criminal conduct. Moreover, a poster containing slanderous information was put up on the union’s noticeboard. The company accordingly lodged a complaint on 27 January 2004 requesting that the incident be investigated. As a result of the complaint an investigation was undertaken that brought to light the involvement of the accused. Following an agreement with SINALTRAINAL the company withdrew its criminal and civil charges.
50. 517. In another instance of alleged libel and slander, the company states that it lodged a complaint against several members of SINALTRAINAL requesting the Office of the Attorney-General to determine whether a complaint lodged by SINALTRAINAL officials with a federal court in the State of Florida, United States, and other public statements and press conferences accusing the company of associating with groups outside the law, along with other illegal activities, constituted libel and slander. Though a ruling of the Office of the Attorney-General initially took the view of the complainant, it reversed its decision after the appeal lodged by the union was settled in January 2004, and the case was dropped.
51. 518. The company also recognizes that it brought criminal charges against members of SINALTRAINAL for accusations voiced at a protest meeting in front of its main office in Bogotá on 5 December 2002. The case is currently with the Office of First Instance of the Attorney-General pending the formal start of the trial in court. The Government makes the point that, in a company that directly generates over 8,000 jobs in Colombia and which has been operating in the country for over 80 years, it is both understandable and logical that over the years situations should have arisen in which it disagrees with the behaviour or actions of its workers – whether unionized or not, members of SINALTRAINAL or not – just as it is obvious that in the course of 80 years the workers should sometimes have been at odds with decisions taken by the company. The important thing is that such differences of view be settled within the framework of the law. If in the course of a demonstration the union carries banners claiming that “Coca-Cola kills”, “Coca-Cola violates human rights”, “Coca-Cola sponsors the AUC” (the AUC are illegal paramilitary groups) and “Coca-Cola murders its workers”, it is hardly surprising that the company should bring legal charges of libel and slander. There is a limit to people’s rights, but one right is that the good name of juridical and natural persons must be respected. In this kind of situation, the least a company can do is defend its reputation, which it has built up thanks to the day-to-day efforts of its workers. Of course it has to do so through the appropriate legal channels and in accordance with the rulings handed down by the authorities. Nobody can claim that any legal steps involving a trade union that the company has ever taken to defend its rights amount to “trade union persecution”.
52. 519. The Government observes that in July 2008, an evaluation mission was carried out in five Coca-Cola bottling plants in Colombia to assess employment conditions and labour relations. The mission took place after consultation with the country’s authorities and with the national employers’ and workers’ organizations concerned, which agreed to the mission.
53. 520. Six high-level ILO officials visited the sites unannounced, with a questionnaire which the parties concerned answered and to which they contributed such documentary evidence as they saw fit. On each occasion the mission called a meeting of the company and the union, visited the plant’s installations and interviewed union representatives in private.
54. 521. This direct inquiry by the ILO was described in a report that not only lists the incidents that gave rise to the original complaint but contains an extensive and accurate evaluation of such issues as the performance of their duties by the workers, freedom of association and collective bargaining in Coca-Cola’s various bottling plants in Colombia. In certain of the observations which follow, the Government refers to that report which, though it does not substitute for the normal functions of the ILO’s regular or special supervisory bodies, is the fruit of a serious and direct inquiry conducted by high-level ILO officials who gave the parties every opportunity to express their views on the case.
55. 522. Regarding relations between SINALTRAINAL and the Coca-Cola bottling plants in Colombia, the Government has established that 247 of the 587 unionized workers at Coca-Cola Femsa are members of SINALTRAINAL. There are three registered collective agreements that are reviewed every two years by direct agreement among the parties concerned. According to the territorial directorates of North Santander, Magdalena, Meta, Santander and Valle, no complaints are pending with the labour inspection and monitoring authorities regarding any failure to implement the law or the collective agreements.
56. 523. The ILO report states:
57. In general terms, everything suggests that conditions of work applicable to direct employees are duly respected, to the extent that they are regulated by legal instruments, collective agreements or accords.
58. …
59. The complexity of labour relations in the Coca-Cola bottling plants in Colombia in large measure reflects the complexity of these relations nationally. On the one hand, there are a considerable number of trade unions. On the other, some unions of a national or regional character play a role which sometimes goes beyond defence of the specific interests of their members in the plants and also play an active part in actions of socio-political sectoral and/or national order.
60. The Government is aware that the steady improvement of labour relations is an ongoing process and therefore considers it appropriate to invite the company and the union to take part in the social dialogue programmes being organized in cooperation with the ILO and the Swedish Government.
61. 524. Regarding the allegation concerning the Carepa bottling plant belonging to Bebidas y Alimentos de Urabá SA, the Government has forwarded the information provided by the company, to the effect that it is common knowledge that around the middle and end of the 1990s the Urabá area especially was the scene of violent incidents. During that period the entire banana-growing zone comprising the municipalities of Turbo, Apartado, Carepa, Chigorodó, Mutatan and Necocli bore the brunt of this violence, which had a direct impact on Bebidas y Alimentos de Urabá SA. Before this period of violence the area had been dominated by left-wing illegal armed groups which in the mid- and late 1990s attempted to take control of the rich area of Urabá by force.
62. 525. Bebidas y Alimentos de Urabá SA played no part in this, either directly or indirectly or even tacitly in favour of one side or the other, but it still suffered the ill effects of the armed conflict, which led to loss of life and to part of the company plant’s personnel leaving the area. Though there were violent incidents everywhere, it was the civil bodies that suffered most, including the administrative headquarters of SINALTRAINAL and a large number of workers who, whether members of the union or not, worked for the company. Once the violence, which was common knowledge, had died down, SINALTRAINAL appealed to the competent authorities for protection and for assurances that the life, right to work, freedom of association and other rights of the entire working population, and not just the trade union, would be guaranteed. Despite all the complaints that were lodged and the impartiality of the company, and given the magnitude of the armed confrontation, there were inevitably people who preferred to set up a smokescreen and to try to implicate the company – as the visible and well-known face of Coca-Cola which operates in this banana-growing area – as the direct instigator of the incidents.
63. 526. By a ruling of 11 April 2001, the subsequent investigation, with file No. 164 UDH, (copy attached), ordered by the Human Rights Unit of the Office of the Attorney-General, into the events of October, November and December 1996 which had led to the assassination of one of the company’s workers, Isidro Segundo Gil Gil, as well as other crimes, established the total innocence of the manager of the company and absolved Bebidas y Alimentos de Urabá SA of any responsibility in the matter.
64. 527. The foregoing conclusions were reached not only by the Human Rights Unit of the Office of the Attorney-General but by SINALTRAINAL itself, whose vice-president and education secretary, in a statement issued on 30 September 1996, called on the national executive board to withdraw the press release it had published against Bebidas y Alimentos de Urabá SA.
65. 528. In a ruling of 22 April 1997, the Tenth Criminal Circuit Court rejected the request for trade union immunity presented by workers of Bebidas y Alimentos de Urabá SA on a number of counts, including acts of violence. It considered that the company did not violate the workers’ rights but, on the contrary, had notified the authorities and requested security measures for them.
66. 529. The Government adds that it also sent a copy of the case to the Office of the Coordinating Board of the Human Rights Group of the Ministry of Social Welfare for it to investigate the incident.
67. 530. Regarding Embotelladora de Santander SA’s alleged non-compliance with the collective agreement, the company states that on several occasions the trade union in Cúcuta y Bucaramanga brought legal charges against the company for allegedly violating some of its provisions. The outcome was a number of judgements in favour of the company and two ordering it to post vacancy notices and the corresponding requirements for any jobs covered by the Convention. The company duly complied with the decisions of the authorities.
68. 531. The Government emphasizes the diligence of the officials of the Ministry of Social Welfare in monitoring and enforcing the labour standards with regard to the right of freedom of association.
69. 532. Regarding the non-payment of union dues, the company states that in 1995 SINALTRAINAL brought charges against it in Santander, alleging that it had stopped paying some of the dues owing to the union. The Court of First Instance ruled that the company must pay over to the union the dues that it should have deducted from non-unionized workers covered by the collective agreement. The Court of Second Instance demurred and partially absolved the company, on the grounds that the dues to which the ruling referred concerned only the workers who were engaged in the tasks described in article 93 (Scope of the agreement) between 25 January 1993 and 29 June 1995. The company therefore owed SINALTRAINAL the dues that it should have deducted from the workers covered by article 93 of the collective agreement during that period. These sums the company duly paid. Although the company could have appealed the ruling, on 25 January 2006 it opted not to do so. The company states that in meetings with the union’s lawyer it handed over to SINALTRAINAL documents listing the dues it had paid at the time in respect of the workers covered by article 93 of the collective agreement between 25 January 1993 and 29 June 1995, and the matter was closed.
70. 533. Regarding the amendment to SINALTRAINAL’s by-laws, the Government states in a communication dated 9 February 2009, that the union has not yet taken any legal steps to have Resolution No. 000984 of 25 March 2009 (annulling the registration of their amendment) rescinded.
71. 534. Furthermore, the Ministry of Social Welfare has modified its union registration criteria and procedures pursuant to Constitutional Court rulings Nos C-695, C-465 and C-732 of 2008, to the effect that any dispute over the registration of trade unions or their executive boards or by-laws must be referred to the ordinary courts of law. Ruling No. C-695 reads as follows:
72. This modification means that the Ministry of Social Welfare may no longer deny the registration of amendments to the bye-laws of trade unions that are submitted to it. Insofar as the requirement placed on the union is simply to “submit” an amendment to its bye-laws – which also means depositing the relevant documents confirming that the amendment conforms to legal requirements – the Ministry is not competent to determine whether or not the amendment complies with the Constitution or the law. Should the Ministry deem that an amendment submitted is unconstitutional or illegal, it shall refer the matter to the appropriate labour court to decide.
73. The submission of an amendment merely serves as a means of publicizing the fact, which is in keeping with the principle of trade union autonomy, […] and it does not entitle the Ministry of Social Welfare to carry out a preliminary verification of the amendment to the bye-laws.
74. In addition, the Office of the Attorney-General issued a directive summarizing the above rulings in accordance with the standards in force, which concludes:
75. Amendments to trade union bye-laws and changes in the composition of their executive boards must be duly registered. Should the Ministry or employer have any objection to their registration, they must submit a corresponding request for an election or modification with the labour courts.
76. 535. The Government states that, as a result, the Ministry of Social Welfare has since October 2008, taken note of registrations automatically, for which purpose it has no special resources. The Ministry has instructed all its officials with monitoring and enforcement responsibilities to ensure strict compliance with the new criteria and procedures relating to trade union registration.
77. 536. In accordance with the information provided by the Facatativá Labour Inspectorate, SINALTRAINAL’s by-laws were duly submitted under No. 0003 on 22 October 2008 (the Government attached a copy of the relevant record).
78. 537. Regarding the request for the annulment of the registration of the Santa Marta branch union, the Government refers to the company’s statement that Colombian legislation requires that trade unions and their branches have at least 25 members, without which they must be dissolved. In January 2002, the company initiated legal proceedings to have the Santa Marta branch executive board dissolved, since according to the company’s information it had only ten members. The company’s case was dismissed on the grounds that the trade union had produced evidence showing that a number of independent workers other than those ten people were also members of the organization. Although under Colombia’s regulations only dependent workers may join industrial trade unions, the Ministry of Labour did at that stage of the proceedings authorize an amendment to SINALTRAINAL’s by-laws allowing independent workers to become members. The amendment was subsequently declared illegal. The company states that the branch union is currently functioning normally and maintains an open dialogue with the company, under an agreement whereby it receives assistance and a number of advantages.
79. 538. Regarding the annulment of the registration of the executive branch of the Girardot union branch by the Ministry of Social Welfare, INDEGA states that in February 2004 SINALTRAINAL workers of the city of Girardot held a meeting to elect an executive board that was mostly attended by independent workers – including street vendors and shopkeepers. However, the law requires that, as an industrial trade union, it be composed of dependent workers, i.e. workers employed by a company. As this requirement was not fulfilled, the company appealed against the Ministry’s decision to register the branch union, and on 25 August 2004 the Ministry’s hierarchical superior reviewed the matter, confirmed that the SINALTRAINAL branch union in Girardot did not meet the legal requirements and proceeded to cancel its registration. In the Ministry’s words, “to belong to a company or industrial trade union (such as SINALTRAINAL) it is a sine qua non that, in the first instance, a worker be employed by the said company and, in the second, that the worker be employed in one or other of the companies operating in the said industry or branch of economic activity, which is clearly not the case in the matter before the Ministry where 40 stationary street vendors appear as “members” of SINALTRAINAL. Although as street vendors the latter cannot be members of a food industry trade union, this does not mean that they may not form trade unions, inasmuch as the law makes provision for them to establish guilds and trade associations of various kinds so long as they do not claim to be members of an industrial trade union” (Resolution No. 3196 of 25 October 2004).
80. 539. The Government considers that the Ministry acted in accordance with Colombian law, bearing in mind the recognized classification standards for union organizations – in this case the standards governing industrial trade unions.
81. 540. The company adds that in November 2004, the members of SINALTRAINAL in Girardot again tried to register a new district branch but failed to meet the requirements of the law – notably with regard to the membership of independent workers, which is against the law that states that industrial union members must by hypothesis be employed by a company in the said industry, and not independent workers. Consequently, the company requested the authorities not to register the executive board since it did not conform to the labour standards in force. As a result, the Ministry of Social Welfare issued a ruling on 30 November 2004 refusing to register the branch union. SINALTRAINAL appealed against the ruling, which the Ministry reconfirmed. That said, the fact that SINALTRAINAL has no branch executive board in Girardot does not mean that it has no members in the city. On the contrary, the organization currently has 11 members in Girardot and the company has taken no action against them.
82. 541. Regarding the executive board of the Villavicencio branch union, INDEGA states that on four occasions the four company workers who are affiliated to SINALTRAINAL tried to register a branch executive board without meeting the legal requirement as to membership, i.e. 25 workers from the same city who are employed in any food industry enterprise. The company thereupon took steps to ensure compliance with the law. In no case did the Ministry register the executive board once it had established that it did not meet the legal requirements. In July 2005, SINALTRAINAL again applied for the registration of a branch executive board, which the Ministry did register as it met the necessary conditions. However, at the beginning of 2007 Almacenes YEP SA – a company that has no link whatsoever with INDEGA – requested that the decisions to register the Villavicencio branch of SINALTRAINAL be reversed as it did not have the 25 members required for the establishment of a branch union in a city. After conducting a count of the branch’s membership and verifying the evidence presented by Almacenes YEP SA, the Ministry of Social Welfare acceded to its request.
83. 542. Regarding the refusal to register the executive board of the Bogotá branch union, the company states that in March 2005 members of SINALTRAINAL in Bogotá applied for the registration of a branch union. Following normal procedures, the Ministry raised objections and requested further information and documentation as evidence that the minimum legal requirements were met. As the trade union failed to produce the information requested, the Ministry issued Resolution No. 1700 on 20 June 2005 refusing the branch union’s registration.
84. 543. As for the partial rejection of the Bucaramanga branch executive board, the company states that it had no objection to the registration of SINALTRAINAL’s Bucaramanga branch; on the contrary, it recognizes the branches’ officials, maintains an open dialogue with the union and grants leave for union activities, plane tickets and financial assistance under the collective agreement with SINALTRAINAL.
85. 544. Regarding the registration of the executive board of SINALTRAINAL’s Cali branch union, the company states that the union has operated in Cali since its establishment. The company has recognized the legality of its constitution, respected the immunity of its officials, reached collective agreements with its delegates and provided its management with financial assistance by means of a monthly contribution and paid leave in accordance with a collective agreement. In April 2006, SINALTRAINAL changed the executive board of the Cali branch and submitted it for registration as required by law. The Ministry notified the company of the request, and the company asked it to verify that it had the minimum number of members required by law, bearing in mind that 12 company workers were affiliated to SINALTRAINAL in Cali. The Ministry decided to register the change notified by SINALTRAINAL and the company respected the decision taken.
86. 545. Regarding the incidents relating to Eficacia SA, the Government states that this is a company that provides services to third parties in whatever is required for the normal conduct of activities in banking, agro-industry, cleaning, marketing and sales, advertising and trade in general.
87. 546. The commercial contracts it enters into are carried out by workers whose labour relationship with it is that of service providers, which means that they make their services available to companies in whatever industry or branch of economic activity its clients are engaged in. Such is the case with Embotelladora de Santander SA, according to the complaint it lodged, inasmuch as the economic activity of Eficacia SA is not “to cultivate, manufacture, dehydrate, pulverize, package, prepare, buy, sell, distribute, export or import food products or products that are to be mixed with any food products”. Consequently, there is no legal basis whatsoever for claiming that its workers meet the criteria for membership of SINALTRAINAL.
88. 547. The Government adds that, as the company’s general manager points out, “considering that Eficacia SA’s clients include such companies as Colgate, Procter & Gamble, Johnson & Johnson, Pfizer, Beidersdorf (BDF), Bayer, Schering, Avon, Prebel, Belleza Express, Exito, Carulla, Olímpica, Colsubsidio and Comfandi, one might well ask how its workers could provide such services while being members of a food industry trade union”.
89. 548. The Government goes on to state that article 2 of the trade union’s by-laws stipulates that “the membership of the National Union of Food Industry Workers (SINALTRAINAL) shall comprise workers linked to enterprises whose purpose is to cultivate, harvest, manufacture, dehydrate, pulverize, package, prepare, buy, sell, distribute, export or import food products or products that are to be mixed with any food products”. That being so, Eficacia SA’s workers do not meet the criteria either of the legislation or of SINALTRAINAL’s own by-laws for membership of the organization.
90. 549. In the light of the foregoing, a trade union organization that accepts members who do not conform to the requirements of its own by-laws would be in an illegal and irregular situation that would have many implications for its legal rights, one of which is that no list of demands could be submitted or agreements negotiated in its name without the outcome being invalidated; for these reasons, Eficacia SA is not required to negotiate the list of demands presented by SINALTRAINAL.
91. 550. The Government further states that the Territorial Directorate of Santander did conduct a labour administration investigation into Eficacia SA for violating the right to freedom of association and refusing to negotiate a list of demands, as a result of which it passed Resolution No. 0802 of 28 June 2007 clearing Eficacia SA of the charges and releasing the parties so that they could initiate legal proceedings, since the case involves a legal controversy that only the courts are competent to judge.
92. 551. Should the organization believe that its right to bargain collectively has been infringed, there are a number of administrative bodies to which a decision in the matter could be referred but which the union chose to forego. In any case, SINALTRAINAL is at liberty to submit the case to an ordinary labour court for it to conduct a new investigation. According to the company, it has not been notified of any such court action having been taken.
93. 552. The Government adds that the Ministry of Social Welfare will take immediate action should any similar situation arise and will monitor these companies at all times to ensure that they comply with the law in terms of their obligation to deduct and transfer union dues to their unionized workers and to negotiate the demands submitted by them.
94. 553. Regarding these companies and the workers they employ, the ILO evaluation mission report states:
95. In all the plants visited there are collective agreements and accords, with the exception of Barranquilla and Carepa-Urabá, where there are only collective agreements.
96. …
97. In general terms, everything suggests that conditions of work applicable to direct employees are duly respected, to the extent that they are regulated by legal instruments, collective agreements or accords.
98. With regard to the administration of the company payroll, i.e. full payment of wages at intervals laid down by law, collective agreement or accord, payment of wages in a form which ensures that they are enjoyed in full, respect for the working time regime (eight hours per day and 48 hours per week) and rest, no comments or complaints were made which might suggest problems of compliance.
99. 554. For the Government, the situation as to trade union membership that was verified by the ILO mission and reflected in its report is highly significant and a clear indication of the freedom of association that is enjoyed by bottling plant employees in Colombia. As the report points out, the company appears to tolerate demonstrations (e.g. workers with tshirts alluding to their demands) by unionized workers.
100. 555. Though the report contains statements from people interviewed that reveal profound differences of opinion between the company and the trade union, it is equally clear that the employers respect fundamental rights at work, such as freedom of association, the right to bargain collectively, non-recruitment of minors, non-discrimination and an eight-hour working day. The report also recognizes that the benefits accorded in the collective agreements, which are periodically renegotiated, are greater than those required by law and that the mission received no complaints of non-compliance with those agreements.
101. 556. As to the alleged refusal of PROSERVIS, the new provider of specialized services to Embotelladora de Santander SA, to engage union members, the Government refers to the mission’s direct verification of this issue and to the conclusion reached on the subject in its report:
102. ... it appears that no action by the company has up to now indicated any type of discrimination in pre-contracting processes.
103. …
104. In the case of direct employees, the average length of service is fairly long, and this is reflected in a particular way between the company representatives and the union leaders. This means that the turnover rate (entrants to leavers) of employees is low despite the incorporation of technological innovations in the production processes.
105. According to data provided by the company, in the Barranquilla plant the average length of service is 11.9 years. In the Bogotá-Norte plant, out of a total of 494 recognized direct employees, 359 have over eight years’ service and the average is 15.02 years. In the Cali plant, out of a total of 193 recognized direct employees, 122 have over eight years’ service and the average is 13.94 years. In the Medellín plant, out of a total of 274 recognized direct employees, 188 have over eight years’ service and the average is 15 years. In the Bogotá-Sur plant, out of 83 direct employees, 34 have between 10 and 15 years’ service and 11 even have over 30 years. In Carepa-Urabá, lastly, 33 per cent of workers have over eight years’ service and 25 per cent have between five and eight years.
106. 557. Regarding the suspension of Andrés Olivar’s contract, the company states that on 28 February 2007, SINALTRAINAL requested permission for Mr Olivar, an employee of the company and a union member, to attend a trade union activity. Mr Olivar is a company liquidator, and at that time there was a problem with the system platform that had been holding up data for more than three days. As the liquidator, Mr Olivar’s presence was essential, and so the company informed the trade union and, after explaining the reasons, informed Mr Olivar in person and in writing that it could not grant him the time off. In spite of this, Mr Olivar ignored the decision and did not turn up for work, as a result of which – as required by law and the agreements in force – the company had to call him in to explain himself. After hearing his explanation and since it did not justify his absence from work, Mr Olivar was duly sanctioned in accordance with the collective agreement, the company’s internal regulations and the law.
107. 558. As part of the normal dialogue between them, a meeting of the company and SINALTRAINAL was held on 24 May 2007 at which it was agreed to waive the sanction, on the understanding by both parties that this did not mean that Mr Olivar had not committed a serious fault that warranted his being sanctioned. Since an agreement has been reached between the company and the trade union organization, the Government considers that the incident does not call for further examination.
108. 559. The company adds that the distribution of the products it bottles is carried out by independent micro-enterprises with which it has a trade relationship in the form of a concession to re-sell the products. Under this arrangement, each concession holder buys the company’s products and then re-sells them on the market. It is an exclusive contract that places mutual obligations on the parties involved. To conduct their business (i.e. the re-sale of the product) the concession holders use their own means and contract their own employees directly. Their commercial activities generate a profit which is the difference between their purchasing price and the selling price once they have covered their overheads. The company does not pay or in any way remunerate the concession holders; on the contrary, it is they who pay the company for products that they buy at a preferential rate.
109. 560. In March, the company exercised its legal and contractual faculties to break off trade relations with some of its concession holders for a variety of reasons, some for their failure to fulfil the contractual clauses and others because they decided to give up their routes.
110. 561. As to the incidents surrounding the demonstration by subcontracted workers at the Villavicencio distribution centre, INDEGA states that on 23 April 2007, some of the concession holders whose contracts had been terminated organized a demonstration to block access to the company’s distribution plants, occupying the public area without authorization. Following neighbours’ complaints of “visual and noise pollution” the authorities took action to clear the public area and suggested to the demonstrators that they use the legal channels to make known their complaints or concerns. As already mentioned, the Government considers that the police acted correctly in restoring public order, which is in line with the principles of the Committee on Freedom of Association.
111. 562. Regarding the dismissal of Edgar Alfredo Martínez Moyano, INDEGA states that it has a contract for specialized services with Ayuda Integral SA. Under Colombian legislation, service contracts imply the technical and administrative autonomy of the contractor, which, inter alia, covers the administration of its employees. All the contracts entered into by the company require that the contractor comply with the law and that the contract be subject to the control and enforcement of the state authorities. According to information supplied by Ayuda Integral SA, Edgar Alfredo Martínez Moyano was questioned about failing to carry out his duties and, on the basis of information received, Ayuda Integral SA terminated his contract for just cause – namely, that while he was under employment Ayuda Integral SA had never been informed of his affiliation to SINALTRAINAL. In April 2006 SINALTRAINAL informed Ayuda Integral SA of the affiliation of Carlos Alberto Guzmán Rojas, Luis Enrique Pacheco Contreras and Luis Eduardo Rubio Morales, and this led to a discussion of the legal validity of the termination of his contract. At the time Ayuda Integral SA informed the Ministry of Social Welfare of its position so as to resolve the conflict and determine if the presumed affiliation placed it under any obligation. At the present time Mr Guzmán, Mr Pacheco and Mr Rubio are still working for Ayuda Integral SA.
112. 563. The Government adds that the Ministry of Social Welfare has established that no complaints have so far been lodged with any of its territorial directorate concerning any failure of Ayuda Integral SA to check off union dues or to negotiate any list of demands.

C. The Committee’s conclusions

1. 564. The Committee notes the complaint presented by SINALTRAINAL on 18 September and 26 October 2007 and 25 March, 1 April and 4 June 2008. The Committee likewise notes the Government’s replies dated 6 December 2007, 25 April, 22 and 27 August 2008 and 9 February 2009.
2. 565. The Committee observes that the allegations in the present case concern: (a) murder, acts of intimidation and threats against officials and members of SINALTRAINAL to dissuade them from pursuing their trade union activities, including their stigmatization as subversive elements and accusing them of calumny and slander; (b) violation of the collective agreement by Embotelladora de Santander SA; (c) non-payment of union dues by the said company; (d) restructuring of the company and consequent closure of production centres by Coca-Cola Femsa; (e) a request by a number of bottling plants to have the registration of SINALTRAINAL’s by-laws and of the executive boards of several of its branch unions revoked; (f) disregard of the right of the workers of Eficacia SA and Ayuda Integral SA to become members of SINALTRAINAL and to bargain collectively with it; (g) the sanctioning of a trade union official for taking union leave; and (h) refusing to allow the workers of Acueducto Metropolitano de Bucaramanga to become members of SINALTRAINAL.
   • Acts of violence
3. 566. Regarding the alleged murder and intimidation of, and threats against, officials and members of SINALTRAINAL, the Committee notes that according to SINALTRAINAL several of the bottling plants referred to above have pursued an anti-trade-union policy that dates back to 1984, that many of its officials and members have been murdered or been the victims of other acts of violence, that its officials have been accused of terrorism and in many cases arrested before being released after being proven innocent, and that on occasion they have been kidnapped and threatened by paramilitary groups not to lodge complaints against the company. The Committee further notes that, according to the complainants, complaints have accordingly been lodged but that the investigations have led to nothing. As a result, many of the workers have abandoned their trade union activities.
4. 567. The Committee also notes the Government’s statement that it has passed on a copy of the allegations to the Coordinating Board of the Human Rights Group of the Ministry of Social Welfare for it to conduct appropriate inquiries. The Committee likewise notes the Government’s reply in which the corporate group INDEGA, which includes companies operating under the umbrella of Industria Nacional de Gaseosas, begins by clarifying the juridical situation of the companies cited in the allegations. It explains that Industria Nacional de Gaseosas (INDEGA, formerly known as Panamco Colombia SA) represents Coca-Cola Femsa in Colombia, a company that bottles non-alcoholic drinks (including drinks sold under trade names belonging to The Coca-Cola Company). In 2008, INDEGA absorbed Embotelladora de Santander SA and Embotelladora Román SA. Embotelladora de Carepa does not belong to INDEGA but to Bebidas y Alimentos de Uraba SA. INDEGA states that it is committed to its workers’ integrity and security, that is has a specific security plan to meet SINALTRAINAL’s concerns in the matter, that it is in permanent contact with the human rights directorates of the Ministry of the Interior and with the office of the Vice-President of Colombia, that the company holds regular meetings with the trade union organization to assess security issues raised by the latter’s officials and members and that it provides additional assistance directly in addition to that provided by the Government.
5. 568. While the Committee appreciates the security measures adopted by the various enterprises in the group, it considers that the allegations, if true, refer to matters of utmost gravity and recalls in this respect that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 44]. That said, the Committee observes that, for the most part, complaints have already been lodged in this respect and are being examined in the context of Case No. 1787. In these circumstances, it will pursue their examination under that case.
6. 569. Regarding the allegation concerning Embotelladora de Carepa, to the effect that in December 1996, paramilitary groups entered the company premises and obliged SINALTRAINAL members to resign from the union, the Committee notes that, according to the Government, a copy of the allegation has been passed on to the Coordinating Board of the Human Rights Group of the Ministry of Social Welfare for it to initiate inquiries into the matter. The Committee also notes the company’s statement that at the time of the incidents there were violent confrontations between left-wing and right-wing extremist factions to take control of the territory, but that the company took no part whatsoever in the confrontation and was not in favour of either faction. The Committee notes further the company’s statement that it too lodged a complaint with the authorities regarding the violence of which its workers were victims, and that the inquiry carried out by the Human Rights Unit of the Office of the Attorney-General (file No. 164) into the 1996 incidents, in the course of which a worker was also killed, cleared the company of any responsibility, as did the decision of the tenth criminal circuit judge in a ruling on 22 April 1997. The Committee takes due note of this information and requests the Government to keep it informed of the outcome of the inquiry conducted by the Coordinating Board of the Human Rights Group of the Ministry of Social Welfare.
   • Criminal charges
7. 570. Regarding the accusations of slander brought against members of SINALTRAINAL, the Committee notes that, according to INDEGA, members of the organization distributed printed material denouncing the company for criminal conduct. The company initiated legal proceedings which it subsequently abandoned. In another investigation into accusations of slander made against Coca-Cola in the United States as part of an international campaign in which, according to Coca-Cola, the organization was involved, the General Attorney revoked a decision in which the members of SINALTRAINAL had been accused of slander and calumny. The Committee notes that the said inquiry has been terminated. As to a third complaint concerning accusations made by the organization at a meeting held in front of the company’s Bogotá office, the Committee notes that the formal opening of a trial is still pending with the Office of the Attorney-General.
8. 571. Stressing the importance of dialogue between the trade union organization and the company in order to achieve harmonious labour relations, the Committee calls on the Government to take whatever steps it can to encourage the company and the complainant organization to improve the dialogue in the group’s various establishments and bottling plants so that each side can carry out its functions properly in a climate of mutual respect and put hostilities and any forms of violence aside.
   • Restructuring process
9. 572. Regarding the restructuring process in Coca-Cola Femsa in 2003, the Committee notes the complainant organization’s statement that the company brought pressure to bear on workers to resign from their jobs in exchange for financial compensation, and that a complaint was duly lodged with the authorities to this effect. The Committee notes that the Higher Court of the Judicial District of Medellín ordered that a number of the workers who were dismissed be reinstated in their jobs. The Committee also notes that, according to the allegation, the restructuring process entailed the closure of production centres and bottling plants and the consequent dismissal of a large number of workers, and that this led to several appeals being lodged for trade union immunity which on some cases were decided in favour of the workers.
10. 573. The Committee notes the Government’s statement that, according to the company, the restructuring was due to issues that had nothing to do with freedom of association and that both unionized and non-unionized workers were affected and received compensation far higher than that required by law. The Committee notes that throughout the process a dialogue was maintained with the trade unions, and specifically with SINALTRAINAL to which less than one third of the workers concerned belonged and with which an agreement was reached after months of negotiations, whereby the trade union undertook not to press legal charges and the company to relocate 24 workers.
11. 574. The Committee observes in this connection that, according to information supplied by both the complainant and the company, the restructuring affected the workers as a whole, whether unionized or not, that the process was the subject of negotiations with the trade unions and that, in the specific case of SINALTRAINAL, an agreement was reached whereby 24 workers were redeployed. The Committee recalls that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions [see Digest, op. cit., para. 1079]. That being so, the Committee will not pursue its examination of these allegations.
    • Violation of the collective agreement and payment of union dues
12. 575. Regarding the alleged violation of the collective agreement and non-payment of union dues by Embotelladora de Santander SA, the Committee notes that according to the allegation the company was sanctioned by the judicial authority and that several officials were fined for not respecting the right to hold meetings and the right of association. As to the non-payment of union dues, the Committee notes the complainant organization’s statement that the company appealed the decision and the case is still pending.
13. 576. The Committee notes in this respect the Government’s observation that, according to the reply sent to it by the company, SINALTRAINAL took legal action against it for the alleged violation of a number of standards provided for in the collective agreement in the cities of Cúcuta and Bucaramanga; the court decided in favour of the company and also handed down two rulings ordering the company to respect the collective agreement as it related to the posting on its noticeboard of existing vacancies and the corresponding requirements. The Committee notes the company’s statement that the decisions were duly carried out. The Committee also notes the Government’s statement that the officials of the Ministry of Social Welfare have met their obligations as regards the monitoring of labour standards.
14. 577. Regarding the alleged non-payment of union dues, the Committee notes the company’s confirmation that the judicial authority ordered it to pay the dues but the court of second instance qualified the ruling and limited payment of the dues to the period between January 1993 and June 1995; these payments were duly made, as the organization’s lawyer was able to ascertain in meetings with the company.
    • Official registration and right of association and right to bargain collectively
15. 578. Regarding the allegation that on 8 July 2004, the Panamco Colombia SA bottling plant requested the Ministry of Social Welfare to revoke its decision to register the amendment of SINALTRAINAL’s by-laws, the Committee notes that, according to the complainant, the Coordinating Board of the Labour, Employment and Social Security Group passed Resolution No. 2994 revoking the registration of its by-laws, and that the requests for trade union protective relief lodged with the District Council of the Judiciary were denied. The Committee notes that on 7 December 2007 the complainant decided at its national general meeting to amend the organization’s by-laws so as to allow the affiliation of workers in the food and agriculture sector and allied workers irrespective of their labour relationship and type of work. The Committee observes that article 2 of the trade union’s by-laws (copy attached) stipulates that its membership shall comprise “workers in the food and agriculture sector and allied workers engaged under various forms of labour relationship and in various types of work …”. This wording was approved by the Inspectorate of Labour and Social Security in Resolution No. 0005 of 14 January 2008, but subsequently annulled by the Territorial Directorate of Cundinamarca in Resolution No. 000984 of 25 March 2008, following an appeal by Panamco Colombia SA.
16. 579. Also on this issue, the Committee notes the complainant’s allegation that Panamco Colombia SA, Embotelladoras Román SA, Compañía Nacional de Chocolates SA and Supertiendas y Droguerías Olímpica SA have requested the annulment of the registration of a district union executive board in several cities, according to the companies because some of those who tried to join were independent workers and the union therefore did not have the required number of members.
17. 580. The Committee also notes that in other instances the companies refuse to allow SINALTRAINAL to affiliate certain workers that it employs on the grounds that they are not food sector workers but services sector workers, as they are supplied through service enterprises such as Eficacia SA and Ayuda Integral. For their part, the service enterprises supplying companies with employees likewise refuse to allow SINALTRAINAL to represent them, on the grounds that they are employed in the services sector and not in the food sector. The Committee notes that, according to the complainant organization, 70 per cent of the staff of Embotelladora de Santander SA is employed in this way; they are thus not covered by the collective agreement between the company and SINALTRAINAL, which leaves them in an extremely precarious situation. According to the allegation, Eficacia SA uses the same argument to refuse to check off trade union dues on behalf of SINALTRAINAL or to negotiate the list of demands that it has submitted. The Committee notes further the allegation that, in February 2007, Embotelladora de Santander SA terminated its contract with Eficacia SA, merely informing the workers employed in the bottling plant that they could be contracted again through PROSERVIS, but that those who were affiliated to SINALTRAINAL were not taken on again.
18. 581. With respect to the official registration of the amendment to SINALTRAINAL’s by-laws, the Committee notes the Government’s observation of 9 February 2009 to the effect that SINALTRAINAL has not so far initiated any legal proceedings against Resolution No. 00984 of 25 May 2008, annulling the registration of the amendment to its by-laws. The Committee also notes the recent rulings of the Constitutional Court (C-465 and C-695 of 2008) to the effect that the Ministry of Social Welfare cannot refuse to register amendments to by-laws that are submitted to it and that, if it considers them to be irregular, it must refer the matter to the judicial authority which alone can rule on the matter. The Committee notes with interest that in line with these rulings SINALTRAINAL’s amended by-laws were duly registered under No. 0003 on 22 October 2008. The Committee calls on the Government to ensure that the by-laws of the various district executive boards whose registration had been refused or annulled at the request of the bottling plants or other enterprises in the food sector are duly registered once they have been submitted.
19. 582. Regarding the right to join SINALTRAINAL of workers supplied by the services enterprises Eficacia SA and Ayuda Integral SA and employed in the bottling plants, the Committee notes that, according to the Government, Eficacia SA provides services to third parties in whatever is required for the normal conduct of activities in banking, agro-business, cleaning, marketing and sales, advertising and trade in general, by contracting out staff with whom it has entered into a labour relationship. Consequently, it is not possible for these workers to join an industrial trade union such as SINALTRAINAL because many of them provide services in companies outside the food sector and, by the same token, the trade union cannot rightfully present a list of demands on their behalf. The Committee notes that the Territorial Directorate of Santander initiated an administrative inquiry into the company for violating the right of association and refusing to negotiate a list of demands and passed Resolution No. 082 of 28 June 2007 leaving it open to the parties to submit the matter to the judicial authority.
20. 583. Regarding the allegation that Embotelladora de Santander SA terminated its contract with Eficacia SA and informed those of its workers who had been employed in the bottling plant that they could be contracted through PROSERVIS, but that those who were affiliated to SINALTRAINAL were not taken on again, the Committee notes that, according to the Government, there did not appear to have been any discrimination in subcontracting workers from PROSERVIS.
21. 584. The Committee considers in this respect that workers who provide their services to companies in the food sector should be entitled to become members of SINALTRAINAL if they so wish. In the present case, although the employees of Eficacia SA or Ayuda Integral have no direct employment relationship with the bottling plants when working in the food sector, they may wish to join a trade union that represents the interests of workers in that sector at the national level [see 349th Report of the Committee, Case No. 2556, para. 754]. Moreover, the trade union organization that represents these workers should, as a corollary of the right of association, have the right to present lists of demands and to bargain collectively with companies in the sector on their behalf. That being so, the Committee calls on the Government to take the necessary steps amending the legislation without delay to guarantee Eficacia SA (or PROSERVIS) and Ayuda Integral SA workers providing services in the bottling plants the right to join SINALTRAINAL and to have their union dues checked off, and also to guarantee the right of the trade union organization to present lists of demands and to bargain collectively on their behalf. The Committee requests the Government to keep it informed in the matter.
22. 585. Regarding the alleged refusal to register Ernesto Estrada Prada as a member of the executive board of SINALTRAINAL on the grounds that he is under contract to the services enterprise Empaques Hernández but works for Saceites SA, and the alleged refusal of the Ministry of Social Welfare to grant workers of Acueducto Metropolitano de Bucaramanga the right to join SINALTRAINAL, the Committee expresses the firm hope that, in the light of the recent rulings of the Constitutional Court referred to, and in accordance with Articles 2 and 3 of Convention No. 87, the Government will proceed to register the executive board of SINALTRAINAL and will examine the right of the workers of Aqueducto Metropolitano de Bucaramanga to join SINALTRAINAL.
    • Sanctions and dismissals
23. 586. Regarding the alleged suspension of Andrés Olivar, a SINALTRAINAL official, for having taken union leave, the Committee notes the Government’s observation that the sanction was in accordance with the collective agreement, the company regulations and the legislation in force, but that an agreement was reached between the company and the trade union on 24 May 2007 to waive it.
24. 587. Regarding the allegation that in March 2007 the Villavicencio and Bogotá bottling plants dismissed 16 distributors, one other worker, and Edgar Alfredo Martínez Moyano, following his affiliation to SINALTRAINAL, the Committee notes the Government’s statement that the distribution of the products that the company bottles is carried out by micro-enterprises with which it has a commercial relationship in the form of a concession to re-sell the products. The concession holder buys the merchandise and then re-sells it on the market. The Committee also notes that in March 2007, the company decided to terminate its commercial relationship with some of its concession holders for a variety of reasons, including their failure to observe the clauses of their contract and to follow their distribution routes. The Committee notes the Government’s further observation that some of the concession holders in Villavicencio organized a demonstration in April 2007 to protest against the termination of their contracts, and that this led to the intervention of the public authorities and to the protestors being advised to take appropriate legal action.
25. 588. Regarding the dismissal of Edgar Alfredo Martínez Moyano, the Committee notes the Government’s observation that INDEGA states that he worked for Ayuda Integral SA, which terminated his contract with just cause for failing to carry out his duties. The Committee requests the Government to undertake an independent inquiry in this regard and to keep it informed of the results thereof.