Rapport intérimaire - Rapport No. 322, Juin 2000

1. 107. The present complaints were filed in communications from the Colombian Union of Beverage Industry Workers (SINALTRAINBEC), the Union of Pilsen Workers (SINTRAPILSEN) (communications dated 17 August, 21 and 30 September 1999), the Union of Metal Industry Workers APOLO (communication dated 10 September 1999), the Single Central Organization of Workers (CUT - Antioquia section), the Union of Noel Workers (SINTRANOEL) (communications dated 10 September and 27 October 1999), the Union of Workers of the National Coffee Growers Federation (SINTRAFEC) (communication dated 13 September 1999), the National Union of Workers of Bavaria SA and its subsidiaries (SINALTRABAVARIA) (communications dated November and 29 December 1999) and the National Union of Caja Agraria Workers (SINTRACREDITARIO) (communications dated 2 and 8 November).
2. 108. The Government sent its observations in communications dated 15 October and 18 November 1999, 9 March and 9 May 2000.
3. 109. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 110. In their communications dated 17 August and 21 and 30 September 1999, the Colombian Union of Beverage Industry Workers (SINALTRAINBEC) and the Union of Pilsen Workers (SINTRAPILSEN) state that the enterprise Cervecería Unión has been implementing the following anti-union practices against the SINALTRAINBEC subcommittee since 1994: granting housing credits to members of SINTRACERVUNION (a trade union established with employer support) but not to SINALTRAINBEC members; threatening SINALTRAINBEC members with dismissal if they do not leave the union; accusing SINALTRAINBEC members of what are termed "grave" errors that they have not in fact committed; signing a collective agreement with SINTRACERVUNION that takes no account of the industrial union and its more than 1,000 members nationwide; obliging SINALTRAINBEC leaders to hold committee meetings during unpaid working hours and not granting them union leave; conducting a smear campaign accusing SINALTRAINBEC of being a "guerrilla" union. According to the complainant, as a result of these discriminatory practices the number of members at the Santodomingo factory has fallen from 265 in 1994 to 92 at present. Action was taken before the Ministry of Labour in 1998, cooperation was requested from the Public Prosecutor's Office and a complaint was lodged with the Itagüi Prosecutor's Office, but no response was received.
2. 111. In its communication dated 10 September 1999, the Union of Metal Industry Workers APOLO states that the enterprise Industrias Metalúrgicas APOLO is a machine tool and metallurgy company located in Antioquia Department, Medellín. In spite of the fact that it had only one plant, the enterprise decided to split into three for the purpose of preventing workers from exercising their right to freedom of association. The enterprise replaced permanent workers with temporary staff in two of the companies, and in Guarne Municipality the fight continued to destroy the union totally (on the date of the complaint the union had 70 members compared to 350 in 1978). In 1985 the union called a strike; APOLO dismissed more than 100 fixed-term workers and replaced them with temporary staff. When a part of the company was transferred to Guarne Municipality, Antioquia, the labour contract was weakened and benefits that had been negotiated lost.
3. 112. In their communications dated 10 September and 27 October 1999, the Single Central Organization of Workers (CUT - Antioquia section) and the Union of Noel Workers (SINTRANOEL) state that the enterprise Industrias Alimenticias Noel S.A. (a food producer in Colombia) was split in two with a view to preventing workers from exercising their union rights. They specifically allege that collective agreements have been signed since 1983 granting better working conditions to non-union members. The complainants also allege that the company opposed recognition of the union executive committee elected in 1999, on the grounds that the workers elected were not members of the union. The complainants also state that SINTRANOEL amended its statutes to become, by ministerial decree, an industrial union called SINALTRAPROAL, and that the companies have appealed the decree, claiming that since the union leaders do not belong to the same company they cannot be members of the industrial union. Lastly, the complainants state that the Noel Biscuit Company does not deduct union dues, on the grounds that it does not have a union. (The complainants also refer to unspecified matters in the distant past.)
4. 113. In its communication dated 13 September 1999, the Union of Workers of the National Coffee Growers Federation (SINTRAFEC) states that since 1984 the enterprises National Coffee Growers Federation of Colombia and General Coffee Warehouses have unilaterally stopped deducting from non-union workers the dues owed by agreement and by law. In addition, the companies did not deduct the dues accruing to SINTRAFEC by agreement and the special dues owed by all workers for the years 1984, 1986 and 1987. SINTRAFEC brought an action before the judicial authorities, who 12 years later found against the union, seriously undermining the dignity of trade unionism and threatening the union with economic asphyxiation.
5. 114. In its communications of November and 29 December 1999, the National Union of Workers of Bavaria SA and its subsidiaries (SINALTRABAVARIA) states that the Ministry of Labour refused to register the officers of 18 section subcommittees, even though they had been elected in accordance with the statutes. It also objects to the closure of some of the company's plants and the resulting reduction in staff, which violates the collective agreement reached. Lastly, the union states that on the occasion of the nationwide general strike called by the labour federations on 31 August 1999, the enterprise cancelled the contracts of five workers and sanctioned 126 others from different SINALTRABAVARIA sections, even though the Government had agreed not to take measures of reprisal against workers.
6. 115. In its communications dated 2 and 8 November 1999, SINTRACREDITARIO states that on 25 June 1999 the authorities used the forces of law and order to take over Caja Agraria offices and that on 26 June they decreed the massive dismissal of 8,000 workers and the creation of the Agrarian Bank. According to the union, following a national strike the Government issued a declaration in which it undertook not to wind up the Caja and to consult with the union on the Caja's restructuring. The union states that the 1998-99 collective agreement has been violated, specifically the clauses on employer substitution and company unity, on the prohibition of massive dismissals and the dismissal of expectant mothers, and on the guarantee of union privileges. The union adds that demonstrations by the dismissed workers were violently repressed by the police.

B. The Government's reply

1. 116. In its communication dated 15 October, the Government states, in connection with the allegations made by SINTRAFEC, that SINTRAFEC has asked the administrative authority to suspend the complaint as the union was involved in talks with the company aimed at finding solutions to the problems posed.
2. 117. In its communication dated 18 November 1999, the Government states, in connection with the allegations made by SINALTRABAVARIA, that Resolution No. 002169 of September 1999 authorized the partial and definite closure of the plant manufacturing aluminium containers and lids and the consequent dismissal of the workers employed there.
3. 118. As regards the allegations made by the Colombian Union of Beverage Industry Workers (SINALTRAINBEC), the Government states that the complainant brought the actions set forth in Colombian penal legislation to remedy the presumed violations of freedom of association, and thereby obtained the following decisions: (1) resolution dated 22 December 1998 issued by the Public Prosecutor's Office, Prosecutor 121 delegated to the penal circuit judges, declaring lack of jurisdiction under section 327 of the Code of Penal Procedure; (2) resolution 6 dated January 1999 issued by the same prosecutor, rejecting the application for reconsideration; and (3) resolution dated 17 August 1999 also issued by Prosecutor 121, deciding not to apply section 328 of the Code of Penal Procedure on the grounds that there was no new evidence justifying the opening of an investigation. The resolution concerning jurisdiction and dated 22 December 1998 therefore remains valid.
4. 119. The Government indicates that:
   • -- the action brought on certain complaints was not successful;
   • -- the enterprise maintains that the allegation of anti-union practices is unfounded;
   • -- participation in collective bargaining must take place in compliance with the procedure set forth in Decree No. 1373-76, or the agreement reached is not valid;
   • -- the enterprise denies having accused the union of being guerrillas and says it has brought no penal action against it;
   • -- the enterprise states that it grants housing credits under the collective agreement;
   • -- as regards threatening SINALTRAINBEC members with dismissal if they do not leave the union, the union brought an action that failed for lack of evidence;
   • -- when there are more than two unions in one company, the procedure for collective bargaining is governed by Decree No. 1373-76, and that in this case SINALTRAINBEC did not invoke the decree for bargaining purposes and therefore was not excluded from the process but itself decided not to participate;
   • -- the enterprise stated that it grants union leave in accordance with the law, which allows for unpaid leave provided that said leave does not disrupt the functioning of the enterprise;
   • -- finally, there is no denunciation or complaint of anti-union practices with regard to the decrease in SINALTRAINBEC members.
     • Recourse was had to all possible channels of appeal.
   • 120. As regards the allegations concerning the enterprise Industrias Metalúrgicas APOLO, the Government states in a communication dated 9 May 2000 that the Ministry of Labour and Social Security of Antioquia has conducted an administrative labour inquiry into the acts brought to the attention of the Committee on Freedom of Association. The result was that the enterprise was fined 2,601,000 pesos by a resolution dated 4 May 2000 for violation of the right of freedom of association and the collective agreement, and deterioration in working conditions.
5. 121. As regards the allegations made by the Union of Workers of the National Coffee Growers Federation (SINTRAFEC), the Government states that SINTRAFEC brought a routine action before the labour courts against the National Federation and ALMACAFE, asking that they be made to pay it the amount corresponding to the regular and special dues accruing to the union by agreement and which were not deducted from the enterprise's non-union workers, who are covered by the collective agreement. The 12th Labour Circuit Court, in its decision of 15 January 1999, absolved the Federation and ALMACAFE of all liability with regard to SINTRAFEC's claims. The Labour Ministry's Office of International Affairs nevertheless asked the Division of Supervision and Monitoring to conduct an administrative labour inquiry into the alleged acts. On the basis of the corresponding legal analysis, the Division's leaders concluded that in view of the separation of powers set forth in article 113 of the Constitution, an inquiry cannot be made into the decision of a judge of the Republic and that the case came under the statute of limitations in that the union dues should have been deducted between 1984 and 1987.
6. 122. As regards the complaint presented by the Union of Noel Workers (SINTRANOEL), the Government states that according to article 333 of the Colombian Constitution, "economic activity and private initiative shall be limited only by considerations of public welfare. No one shall demand prior permission or set requirements for their exercise, unless so authorized by the law". Section 67 of the Labour Code establishes the legal framework for employer substitution, which shall not invalidate, suspend or modify existing labour agreements. On the basis of these statutory and constitutional rules, the country's enterprises and industries are free to exercise their economic activities within the limits of public welfare and the law. Industrias Alimenticias Noel S.A., exercising its right of free enterprise, split into two companies called Industrias Alimenticias Noel S.A. and the Noel Biscuit Company S.A., for economic reasons, given the requirements of globalization. In order to protect both the individual and collective rights of the workers, the Territorial Directorate of the Ministry of Labour and Social Security in Antioquia will open the relevant administrative inquiries to ensure compliance with the rules governing employer substitution.
7. 123. The Ministry of Labour and Social Security, in Resolution No. 0018 of May 1986 on an appeal, decided as follows: "ARTICLE ONE - To recognize the primary union called the Union of Noel Workers as the union competent to discuss the list of claims filed on 27 May 1983." "ARTICLE TWO - In accordance with the above, the enterprise is obliged to discuss the list of claims filed on 27 May 1983, and if it does not do so shall incur the fines stipulated in section 433 of the Labour Code ..." Industrias Alimenticias Noel S.A. filed for reconsideration of and appealed the resolution, which was confirmed in Resolution No. 033 of 15 August 1986. Resolution No. 0018 of 19 May 1986 was subsequently revoked by the Director-General of Labour in Resolution No. 04247 dated 13 November 1986, thus exhausting the government channel of appeal. Counsel for the Union of Noel Workers brought an action for annulment and re-establishment of the law on 10 March 1987 before the Council of State against Resolutions Nos. 0018, 0033 and 04247. The matter was resolved in a ruling dated 3 November 1993 declaring Resolution No. 04247 dated 13 November 1986 null and void. As a result, Resolution No. 00018, confirmed in Resolution No. 00033 dated 15 August 1986, must be fulfilled; the organization called the Union of Noel Workers is therefore competent to discuss the list of claims submitted on 27 May 1983. With the previous administrative and judicial decisions all legal remedies had been exhausted.
8. 124. The Government states that Colombian labour law establishes the right to freedom of association, which must be understood from two points of view: one negative, the other positive. The first is that every individual is entitled to become a trade union member and the second is the right not to become a member or to leave the union at any time. The law also establishes different kinds of collective accords, such as the collective agreement for unionized workers (convención colectiva, section 467 of the Labour Code) and the collective contract for non-unionized workers (pacto colectivo, section 481 of the Labour Code). With a view to protecting the right to freedom of association and collective bargaining, the Labour Code, supplemented by Statute 50 of 1990, article 70, stipulates that: "If more than one-third of an enterprise's workers belong to the union or unions, the enterprise shall not sign collective contracts or change those in force." In terms of the complaint, the Sixth Medellín District Labour Court and the Labour Chamber of the Medellín Superior Court decided in a ruling dated 9 September 1998 not to grant the union's action against Industrias Alimenticias Noel S.A. for presumed violation of the rights to equality, freedom of association and collective bargaining. It can therefore be said that the workers had access to the judicial processes protecting their rights to equal treatment, work and the freedom of association.
9. 125. The Government adds that the first-level Union of Noel Workers asked the Ministry of Labour, in No. 019619 dated 27 May 1999, to register the new statutes adopted by the extraordinary general assembly of delegates on 23 May 1999. In Resolution No. 001541 of 2 July 1999, the Head of the Regulations and Union Registry Division entered the amended statutes on the register of unions. The union thus changed from being the Union of Noel Workers to an industrial union to be called in the future the National Union of Food and Dairy Products Industry Workers, or SINALTRAPOAL. Counsel for Industrias Alimenticias Noel S.A. and the Noel Biscuit Company filed statutory appeals with the deadline against Resolution No. 001541, and Administrative Act No. 02123 dated 10 September 1999 ruled on the request for reconsideration, approving the amended statutes. The technical sub-director of collective relations subsequently ruled on the request for reconsideration in Resolution No. 002408 dated 12 October 1999, revoking Resolution No. 001541 dated 2 July 1999 on the grounds that the workers meeting in assembly on 23 May 1999 were not at that time members of the Union of Noel Workers. Any change in the union's nature had to be decided by the members of the Union of Noel Workers, workers from the Noel Biscuit Company becoming eligible for membership only once the amended statutes had been approved. The ruling has since been submitted to the Regional Labour and Social Welfare Directorate in Antioquia, the final channel of government appeal, after which recourse may be had to litigation.
10. 126. As regards the request to reinstate the leaders of the Union of Noel Workers, elected at the general assembly of delegates held on 23 May 1999, the Government points out that in Resolution No. 103 dated 28 May 1999 the labour inspector assigned to the Labour Division of the Regional Directorate of Labour and Social Security in Antioquia ordered that the election and officers designated be entered on the register. On 27 May and 16 June 1999, counsel for the enterprises applied for reconsideration of and appealed Resolution No. 103 dated 28 May 1999, on the grounds that Messrs. Vélez, Avendaño, Díaz and Correa could not be registered since they had become employees of the Noel Biscuit Company, created on 3 May 1999 and replacing the labour agreements of personnel from Industrias Alimenticias Noel S.A. In Resolution No. 123 dated 22 June 1999, the application for reconsideration by Industrias Alimenticias Noel S.A. and the Noel Biscuit Company was granted and the previous resolution revoked, on the following grounds in particular: "From the above it may be gathered that the abovementioned men, Duvan Antonio Vélez, Rubén Dario Avendaño, Jesús María Díaz and Edgar Adolfo Correa, were not employed by Industrias Alimenticias Noel S.A. but by Noel Biscuit Company, and therefore cannot be members of a COMPANY UNION called UNION OF NOEL WORKERS."
11. 127. The Government adds that in Resolution No. 153 dated 23 July 1999 a ruling on the appeal confirmed Resolution No. 123 dated 22 June 1999, thereby exhausting the government channel of appeal. Subsequently, on 6 June 1999, the Union of Noel Workers held another general assembly of delegates and elected a new executive committee. It again requested the committee's registration from the Regional Labour Directorate of Antioquia. The request was rejected in Resolution No. 122 dated 22 June 1999, as was Resolution No. 103 dated 28 May 1999 ordering the registration of the executive committee elected in the general assembly of delegates held on 23 May 1999 by the same union and invalidated at the time of the new request as the two appeals against it were pending at that time.
12. 128. According to the Government, Mr. Juan Jovanni Pérez, the President-elect of the Union of Noel Workers, applied for reconsideration of and appealed Resolution No. 122 dated 22 June 1999. The application for reconsideration was settled in Resolution No. 182 dated 23 August 1999, which revoked Resolution No. 122 dated 22 June 1999 on all points and in its stead ordered that the election and the officers designated by the general assembly of 6 June 1999 be entered on the register of unions, thus exhausting the government channel of appeal. In conclusion, thanks to the administrative action brought earlier, the executive committee of SINTRANOEL elected on 6 June 1999 was finally registered, proving that the Government, through the Ministry of Labour and Social Security, responded in a timely manner to all the requests of the unions. Should the unions not agree with the Ministry's decisions, they can have recourse to litigation.
13. 129. According to the Government, the following trade unions are present at the Noel Biscuit Company: the Union of Noel Biscuit Company Workers, or SINTRACOMNOEL (a primary company union); the National Union of the Food and Dairy Products Industry Workers, or SINALTRALAC (a primary industrial union); and the National Union of Workers of Food and Dairy Products Producers, or ASPROAL (a primary industrial union). By virtue of section 400 of the Labour Code, modified by Decree No. 2351 of 1965, article 23: "Any workers' association or trade union has the right to request, by two-thirds vote of its members, that the respective employers deduct from the members' salaries and make available to the union, the amount of the regular or special dues owed by the workers." Since the deduction of the union dues in the enterprise concerned are not the object of a complaint to the Ministry of Labour and Social Welfare, the Territorial Directorate of the Ministry of Labour and Social Welfare in Antioquia has been ordered to conduct the corresponding administrative labour inquiry ex officio.
14. 130. As regards the allegations of the National Union of Caja Agraria Workers (SINTRACREDITARIO), the Government states that in order to improve understanding of the complex case of the liquidation of the Caja de Crédito Agrario and its obvious multiple consequences, the problem and the legal nature of the decisions taken must be seen in the proper perspective:
    • -- the labour costs of the Caja Agraria (a development bank for the rural sector) were 300 per cent higher than those of the country's banking sector, and with its pension liabilities amounted to over 1.34 billion pesos;
    • -- corruption at the Caja Agraria was on such a scale that losses amounted to practically 400,000 million pesos; 2,192 former employees (over 25 per cent of the staff) are currently undergoing investigation, over 164 cases are pending with the Public Prosecutor's Office and 42 employees were dismissed for just cause;
    • -- in those circumstances, the Caja Agraria was viable from neither the financial, the labour nor the administrative points of view, and the deposits of over 2 million Colombians who had placed their savings with the bank were at risk. The salaries, social welfare benefits and pensions of 7,768 workers were also at risk.
15. 131. Given the seriousness of the situation, the Government used the constitutional and legal means conferred on it by Statute No. 489 of 1998 and the new Public Administration Act to issue Decree No. 1065 of 1999, ordering that the Caja de Crédito Agrario be wound up. Article 8 of the decree provides for the suppression of all existing posts and jobs. It also provides for the payment of all forms of compensation set forth in the collective agreement, said forms of compensation exceeding those provided for in labour legislation. Severance pay and the compensation mutually agreed on under the departure plans negotiated with the union cost the Caja over 200,000 million pesos, or approximately US$108.5 million. The Caja Agraria had to be wound up, sooner rather than later, and the process was carried out in compliance with the Constitution and domestic legislation.
16. 132. The Government has the following specific statements on the allegations presented:
    • -- Blackmail and threats against workers with a view to forcing them to reach arrangements or waive their rights. The complaint cites not one single case in which blackmail and threats were used. The voluntary departure plan drawn up was accepted by 1,854 workers who received 110 per cent of the severance pay provided for in the collective agreement. The arrangements were reached in the presence of the labour authorities and a record exists of each one.
    • -- Illegal and inopportune closure of the enterprise. The closure and liquidation of the entity was based on Statute 489, or the Public Administration Act, and Decree No. 1065 of 1999; it was both constitutional and lawful. The workers left because their jobs were eliminated, with severance pay, and therefore no prior proceedings of a judicial, administrative or disciplinary nature were called for, as stipulated in article 9, paragraph 3 of Decree No. 1065 of 1999.
    • -- Military presence in and closure of the ALEGRIAS day-care centre and eviction of 120 children. The day-care service was an extra-legal benefit under the collective agreement. When the workers left they could not continue to enjoy that benefit. In addition, the entity was being wound up. There were no evictions or cases of ill-treatment.
    • -- Dismissal and ill-treatment of 350 expectant mothers. Clearly, the termination of the labour contracts, including those of the expectant mothers, was not due to the pregnancy but rather to the elimination of the jobs they held because of the liquidation and dissolution of the Caja Agraria. Again, article 9 of Decree No. 1065 of 1999 stipulates that no prior judicial, administrative or disciplinary procedure was required to terminate the contracts.
    • -- It is true that beyond the legal and extra-legal compensation they received, the women did not receive the special compensation provided for by the law for such workers, such as the 12 weeks of maternity leave and a special 60-day indemnity to be paid if the dismissal took place in the three months following the birth. The workers nevertheless continued to benefit from the health services of the health-care enterprises to which they were affiliated. It cannot be ascertained that these workers were ill-treated. It is significant that while 350 expectant mothers were dismissed, in only one case did a worker lose her baby, in a mid-sized town (Zipaquirá) in which nothing out of the ordinary happened; the miscarriage was not the result of acts that could be attributed to employees of the Caja Agraria or of any other entity.
    • -- Suspension in care for 70 terminally ill patients. It is not true that the Caja Agraria, which was being wound up, deprived 70 terminally ill patients of medical care. The complaint does not give the names of the workers said to have been deprived of care. All dismissed workers will continue to be covered by social security. As is mandatory with regard to illnesses acquired before termination of the contracts and in accordance with Statute 100, or the Social Security Act, those workers, if they fulfil the requirements, will be entitled to a disability pension.
    • -- Abuse and brutal treatment by the police, and police handling of labour relations. It is clear to the whole country that the reaction of SINTRACREDITARIO to the liquidation of the Caja Agraria was violent in both words and acts. The police, as has been previously stated, was protecting the company's property and was therefore on the receiving end of the violence. Its response was in proportion to the events; it maintained law and order and fulfilled its legal duty to protect the life, honour and property of citizens.
    • -- The aim is to terminate the collective agreement. Not only had the Caja de Crédito Agrario become unviable, endangering the savings of account-holders and the benefits and pensions of the workers themselves, but in accordance with section 467 of the Labour Code, the Collective Work Agreement only covers contracts that are in force.
    • -- Working conditions in the new bank. The new personnel was contracted in accordance with existing Colombian labour legislation. Indeed, articles 71 ff. of Act No. 50 of 1990 allow personnel to be hired on a temporary basis in enterprises providing temporary services. According to the Bank, this procedure will be maintained for as long as the process of selecting new staff continues.
    • -- Contempt for, influence and undue pressure on the judicial authorities. The country's higher courts (Supreme Court, Judicature Council), courts and tribunals have examined 1,523 requests for judicial protection filed by 2,044 workers, finding in favour of the bank in 1,197, or 99.25 per cent, of the cases. The Constitutional Court has reviewed 1,158 requests for judicial protection. The accusation is therefore unfounded. To date, no Colombian judge has ordered the reinstatement of the Caja's former workers. Two cases submitted where rejected on all points by the Council of State.
    • -- Delayed payment of benefits and pressure to reach an agreement. This statement is untrue. In accordance with Decree No. 797 of 1949, state entities have 90 working days in which to settle the claims arising out of the termination of the working relationship. SINTRACREDITARIO mentions no case in which this did not happen. The Committee on Freedom of Association must be aware that a delay in payment will result in a penalty for the entity.
    • -- Standard of living lowered to a deplorable level. As already mentioned, the Caja Agraria's former workers received compensation above and beyond that called for by law, signifying for the Colombian taxpayer an outlay of approximately US$131 million. For decades the Caja Agraria's former workers received 300 per cent the average Colombian wage. The collective agreements provided them with housing, education and hundreds of benefits that gave them an economic advantage over the majority of Colombians.
17. 133. In a communication dated 9 May 2000, the Government states that two administrative labour inquiries are currently being undertaken within the Territorial Directorate of the Ministry of Labour and Social Security of Cundinamarca. The first inquiry is proceeding through the eighth inspectorate into the acts which are the subject of the complaint presented to the ILO. During the course of the said inquiry, on 8 February 2000, the allegations were transmitted to the legal representative of the Agrarian, Industrial and Mining Savings and Loans Fund. On 28 February 2000, the Caja Agraria sent a reply to the allegations made. The parties were summoned for conciliation for 2 June 2000. The Government will duly transmit the results thereof. As regards the second inquiry, initiated by a complaint presented by the trade union for the alleged refusal to negotiate the list of demands, Decision No. 00500 of 14 April 2000 was handed down, article 1 of which ruled that: "No administrative measures shall be taken against the Agrarian, Industrial and Mining Savings and Loans Fund currently undergoing liquidation, on the grounds set forth in the conclusions of this Administrative Act." An appeal was made against the said decision by the concerned parties. At present the appeal is pending.
18. 134. As regards the complaints of the National Union of Bavaria Workers S.A. (SINALTRABAVARIA), the Government states that:
    • -- The administrative acts rejecting the registration of the executive committees of the union sections Maltería de Bogotá, Dirección y Ventas, Colenvases, Cervecería de Bogotá - calle 22B, on the grounds that they had the same domicile as the national executive committee of SINALTRABAVARIA, were taken in accordance with existing legislation on the matter. SINALTRABAVARIA may, if it so desires, bring an administrative action to have the lawfulness of those decisions examined.
    • -- The administrative acts ordering the closure of the Bavaria plant manufacturing aluminium containers and lids and the subsequent dismissal of its workers were issued in accordance with the procedures and rules of Colombian labour legislation.
    • -- The Ministry of Labour and Social Security will conduct an administrative inquiry into SINALTRABAVARIA's allegations concerning the dismissals and sanctions arising from participation in the work stoppage of 31 August 1999.

C. The Committee's conclusions

1. 135. The Committee observes that in the present case the allegations concern acts of discrimination and anti-union practices in different enterprises.
2. 136. As regards the allegations of anti-union practices by the enterprise Cervecería Unión against the SINALTRAINBEC subcommittee (housing credits are granted to SINTRACERVUNION members but not to SINALTRAINBEC members; SINALTRAINBEC members are threatened with dismissal if they do not leave the union; SINALTRAINBEC members are accused of serious errors which they in fact never committed; SINALTRAINBEC leaders are not granted leave for union purposes) and the alleged consequent fall in membership from 265 to 92 members, and the signing of a collective agreement with SINTRACERVUNION that does not take account of the industrial union SINALTRAINBEC, the Committee notes the Government's statements that: (1) the penal action brought failed; (2) the enterprise denies that it has anti-union practices and states that the housing credits for SINTRACERVUNION members were granted under the collective agreement; (3) SINALTRAINBEC did not invoke Decree No. 1373-76 for bargaining purposes and therefore excluded itself from the bargaining process; (4) the enterprise grants union leave in accordance with the law; and (5) SINALTRAINBEC brought an action that failed for lack of evidence that its members were being pressured to resign.
3. 137. As regards the allegations of anti-union discrimination and other anti-union acts in the APOLO enterprise, the Committee notes that on the basis of the administrative inquiry the Government has undertaken, the enterprise was fined a sum of 2,601,000 pesos for violation of the right of freedom of association and the collective agreement as well as for a deterioration in working conditions.
4. 138. With regard to the allegations concerning the enterprise Industrias Alimenticias Noel S.A., the Committee notes that the enterprise was split into two companies in accordance with the law and, according to the Government's reply, for economic reasons and not with a view to undermining workers' rights. As regards the signing of collective contracts (pactos) on working conditions with non-unionized workers, the Committee notes the Government's statement that the law allows for this kind of agreement when the union or unions do not represent more than one-third of an enterprise's workers. In this respect, the Committee recalls that the Collective Agreements Recommendation, 1951 (No. 91) provides that: "for the purpose of this Recommendation, the term 'collective agreements' means all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers' organizations, on the one hand, and one or more representative workers' organizations, or, in the absence of such organizations, the representatives of the workers duly elected and authorized by them in accordance with national laws and regulations, on the other." In this respect, the Committee emphasized that the said Recommendation stresses the role of workers' organizations as one of the parties in collective bargaining. Direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 786). The Committee asks the Government to take measures to amend the legislation accordingly. As for the enterprise's challenge to the modification of the statutes of SINTRANOEL for its conversion to SINTRAPROAL, the Government states that the government channel of appeal has not been exhausted and that litigation is still possible, and the Committee therefore requests the Government to inform it of the decisions made in that respect. As for the enterprise's appeal concerning the administrative decision of 28 May 1999 ordering the registration of the executive committee of the Union of Noel Workers, the Committee notes that according to the Government: (1) the appeal is based on the fact that some of the leaders were no longer employed by Industrias Alimenticias Noel (and were therefore no longer members of the Noel company union) but by the company created as a result of the split, the Noel Biscuit Company; (2) a second "adapted" executive committee (elected following the corresponding union assembly) was also rejected, but admitted and subsequently registered by the administrative authority pursuant to an application for reconsideration. Furthermore, the Committee notes the Government's statement that it has ordered an inquiry into the Noel Biscuit Company's failure to deduct union dues and requests that it be informed of the results.
5. 139. As regards the complaints that the National Federation of Colombian Coffee Growers had failed to deduct union dues of SINTRAFEC members since 1984, the dues of all workers accruing by agreement and the special dues owed by all workers, the Committee notes that, according to the Government, the judicial authorities have rejected the union's claim and that the union has requested the suspension of the complaint on the grounds that talks are being held with the enterprise with a view to finding a solution. In view of the circumstances, the Committee asks the Government to keep it informed of developments in the situation.
6. 140. As regards the allegations by SINALTRABAVARIA concerning: (1) the refusal to register the officers of 18 section subcommittees, in spite of the fact that they had been elected in accordance with the statutes; (2) the closure of plants and the consequent reduction in personnel, in violation of the collective agreement; and (3) the dismissal of 5 workers and the sanctioning of 126 others during the general strike ordered by the labour federations on 31 August 1999, the Committee notes that according to the Government: (i) the administrative acts rejecting the registration of the section executive committees on the grounds that they had the same domicile as SINALTRABAVARIA's national executive committee were issued in compliance with existing legislation and that SINALTRABAVARIA can bring an administrative action to have their lawfulness examined; (ii) the administrative acts ordering the closure of the Bavaria S.A. aluminium container plant and the consequent dismissal of its workers were issued in compliance with the norms and procedures set forth in Colombian labour law; and (iii) the Ministry of Labour and Social Security will launch an administrative inquiry into SINALTRABAVARIA's allegations concerning the dismissals and sanctions arising from participation in the work stoppage of 31 August 1999. With respect to this case, the Committee deplores the authorities' refusal to register the officers of the 18 SINALTRABAVARIA sections on the grounds that they have the same domicile as the executive committee. The Committee emphasizes that the designation of a section's domicile is an internal union matter and therefore asks the Government to register the officers concerned. The Committee further requests the Government to communicate its observations, on the basis of the forthcoming inquiry, regarding the dismissals and sanctions inflicted on workers for their participation in a strike at a Bavaria company, but wishes to emphasize at the outset that sanctions should only be inflicted in the event of violence orfailure to provide the minimum services.
7. 141. As regards the complaints concerning the Caja de Crédito Agrario (massive dismissals, presumed violation of the collective agreement, abusive and brutal treatment by the police in demonstrations, etc.), the Committee observes that, according to the Government's reply, the complaints arose in the framework of the process of liquidation and suppression of posts and jobs at the Caja, after it had been observed that losses were in the millions and that corruption had reached serious levels. The Caja was therefore no longer viable from the financial, labour or administrative points of view, which is why the Banco Agrario was created. According to the Government, the process was carried out in compliance with the law, and of the 1,523 requests for judicial protection before the Constitutional Court, the Court found in the Bank's favour in 1,197, or 99.25 per cent of the cases. The Committee underlines the complexity of the case and asks the Government to communicate the results of administrative inquiries and of present or forthcoming decisions concerning the allegations, and which involve violations of trade union rights or of the collective agreement.
8. 142. Finally, the Committee observes that SINTRACREDITARIO sent new allegations in a communication dated 7 February 2000 which were transmitted to the Government for its observations. Given the recent date of these allegations, the Committee is not in a position to examine them in this report.