Rapport intérimaire - Rapport No. 327, Mars 2002

1. 412. The Committee examined this case most recently at its March 2001 meeting [see 324th Report, paras. 340-359]. The National Union of Bavaria SA Workers (SINALTRABAVARIA) submitted further allegations in communications dated 27 April and 7 and 19 June 2001. The Colombian Union of Beverage Industry Workers (SINALTRAINBEC) presented further allegations in a communication dated 11 September 2001.
2. 413. The Government sent its observations in communications dated 5 April, 4 September, 26 October and 19 November 2001.
3. 414. 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. Previous examination of the case

1. 415. At its March 2001 meeting, when it examined allegations of acts of discrimination and anti-union practices in various enterprises, the Committee formulated the following recommendations [see 324th Report, para. 359]:
   • (a) the Committee requests the Government to keep it informed about all legal actions brought in respect of the amendment of the statutes of the Unitary Union of Noel Workers (SINTRANOEL) to change it into an industrial union;
   • (b) concerning the failure to deduct union dues from the members of the Union of Workers of the National Coffee Growers Federation (SINTRAFEC), the Committee requests the Government to ensure that, if the parties agree under the new collective agreement to deduct the trade union dues, these deductions do indeed become effective;
   • (c) the Committee requests the Government to take measures to find out whether the organization SINTRAFEC has complied with the corresponding legal requirements and if this is found to be the case to register its affiliation to the industrial union SINTRAINDUSCAFE;
   • (d) as regards the allegation concerning the dismissals and sanctions inflicted on workers affiliated to the National Union of Bavaria SA Workers (SINALTRABAVARIA) for having participated in a work stoppage at the enterprise on 31 August 1999, the Committee deeply regrets that more than one year and seven months since the alleged incidents, the inquiry has still not been completed and asks the Government to take steps to ensure that the inquiry is rapidly concluded and to send its observations in this respect;
   • (e) the Committee requests the Government to immediately send its observations concerning the allegations that: (1) the enterprise Bavaria SA is violating the collective agreement by applying sanctions without the presence of the trade union, by awarding promotions according to their own criteria and by refusing to pay the deducted trade union dues; and (2) the enterprise Bavaria SA is facilitating the establishment of another trade union organization;
   • (f) as regards the allegations concerning the Caja de Crédito Agrario (CCA) (takeover of the offices by the forces of law and order, massive dismissal of 8,000 workers -- including 1,397 trade union officials -- in violation of the collective agreement, the refusal to negotiate a list of claims in the new institution Banco Agrario de Colombia which was established following the liquidation of the Caja de Crédito Agrario and the refusal to register the executive committee of SINTRACREDITARIO), the Committee requests the Government to: (i) keep it informed of the final result of the administrative inquiry under way; (ii) keep it informed of any recourse taken against the administrative decision concerning the inquiry on the Caja de Crédito Agrario’s refusal to negotiate a list of claims; and (iii) keep it informed about the result of the legal actions and the criminal charges. Also, bearing in mind the extremely high number of workers and trade union officials affected by the liquidation of the Caja de Crédito Agrario and the establishment of another banking institution called the Banco Agrario de Colombia, the Committee asks the Government to ensure as a matter of priority the recruitment of the highest possible number of workers and trade union officials who have lost their jobs. Finally, the Committee requests the Government to provide its observations concerning the complementary information submitted by the SINTRACREDITARIO in its communication of 31 January 2001.
2. 416. In its communication of 31 January 2001, the complainant alleged that the decrees putting the Caja de Crédito Agrario (CCA) into liquidation and the Act on which they were based were declared unconstitutional by the Constitutional Court from the moment of their promulgation. Following the Constitutional Court ruling, the Government issued Administrative resolution No. 1726, signed by the Superintendent of Banks, ordering that the CCA be placed in administration. This resolution neither closed down the CCA nor cancelled contracts of employment. While the final purpose of placing the CCA in administration is its liquidation, this should be done gradually and in the meantime the Constitutional Court ruling should be complied with. Accordingly, the CCA was supposed to open negotiations on the list of demands presented in December 1999 and did not do so. The complainant emphasizes the discriminatory treatment of the trade union and CCA employees, compared to other enterprises in liquidation in which the officers’ trade union immunity was respected. It maintains that the CCA did not cease to exist, but was transformed, since the same decree established Banco Agrario to take over its assets and liabilities and maintain the CCA’s operations. The CCA’s clients were transferred to Banco Agrario. The decrees (which were without effect pursuant to the Constitutional Court ruling) provided that the few CCA workers hired by Banco Agrario were not covered by the concept of employer substitution. It points out that only a few CCA employees went over to Banco Agrario, but under precarious employment contracts which involved losing the benefits of coverage by the collective agreement. Lastly, it adds that to date 59 labour court decisions have been issued across the country ordering reinstatement of workers covered by trade union immunity, two of which have become final. However, neither the CCA nor Banco Agrario have seen fit to comply with them.

B. New allegations and additional information

1. 417. In its communications dated 27 April, and 7 and 19 June 2001, the National Union of Bavaria SA Workers (SINALTRABAVARIA) alleges that: (1) no solution has been found to date with regard to the dismissals and sanctions inflicted on workers and members of the organization for having participated in a strike in the enterprise on 31 August 1999; (2) the enterprise interfered in the trade union’s autonomy by challenging without justification the election of SINALTRABAVARIA’s executive committee; (3) the enterprise refused to engage in collective bargaining; (4) the enterprise applied the collective agreement incorrectly by giving preference to non-union members, awarding the agreed benefits (raises, bonuses and loans, among others); (5) blacklists were drawn up; (6) trade union member Mr. Jairo Noguera Cortez was dismissed; (7) trade union officers were constantly denied trade union leave; and (8) trade union officers covered by trade union immunity were dismissed when the production of aluminium cans and caps was partially closed down definitively without judicial authorization.
2. 418. In its communication dated 11 September 2001, the Colombian Union of Beverage Industry Workers (SINALTRAINBEC) alleges that since its inception the enterprise has committed anti-union acts against all of its members, and unfairly dismissed trade union member Mr. Jaime Romero instead of reinstating him, as the court considered that the fact that he was a trade unionist made it impossible to reinstate him. The complainant alleges that it attempted to participate throughout the collective bargaining process, but that both the SINTRACERVUNION trade union and the enterprise failed to recognize SINALTRAINBEC and the Government did not provide the necessary protection and guarantees to enable it to participate in collective bargaining. SINALTRAINBEC never excluded itself from collective bargaining. Nonetheless, the enterprise is now alleging the existence of an agreement concluded with SINTRACERVUNION in order to disregard SINALTRAINBEC’s demands. SINALTRAINBEC alleges further that the management of the enterprise made its members targets of the paramilitary forces by calling them “guerrillas”, libelling them with the intention of having them eliminated, and they are currently receiving threats. Lastly, it alleges that disciplinary proceedings were initiated against a large number of SINALTRAINBEC members because it submitted a list of demands.

C. The Government’s reply

1. 419. Concerning the amendment of SINTRANOEL’s by-laws, the Government states that at no time did the organization request the Ministry of Labour and Social Security to examine the amendments in order to approve them. However, it states that the ASPROAL trade union (an enterprise union of workers of the Noel Biscuit Company) was registered by resolution No. 000101 of 24 January 2000.
2. 420. As regards the failure to deduct the trade union dues of SINTRAFEC members, the Government states that administrative proceedings are statute-barred, since the union dues in question date back to the period from 1984 to 1987, and that the judicial authority rejected the action brought by the trade union in the absence of legal provisions obliging the enterprise to deduct the dues. The Government also states that in November 1998 the National Federation of Coffee Growers and Coffee Warehouses SA (ALMACAFE) stopped deducting the dues of the trade unions SINTRAINDUSCAFE and SINTRAFEC on the grounds that parallel trade unions existed in the enterprise, as stipulated in section 360 of the Substantive Labour Code, despite the fact that the workers concerned had requested in writing that dues be deducted for both trade unions. In view of this, SINTRAINDUSCAFE brought an action for protection of their constitutional rights (tutela) against the National Federation of Coffee Growers and in the end the Constitutional Court ordered that the dues be deducted, given that the employer’s present attitude was one of disregard for the right to organize. The tenth labour inspectorate convened the parties to a conciliation hearing at which they stated that the union dues in question were being deducted.
3. 421. As regards the administrative labour proceedings brought against the Bavaria SA enterprise for dismissals of members of the SINALTRABAVARIA trade union for having participated in the strike of 31 August 1999, the Government states that once the probationary period established by the twelfth inspectorate of the Cundinamarca Territorial Directorate of the Ministry of Labour and Social Security, was terminated, the relevant resolution was drafted and is currently awaiting signature by the Coordinator for Inspection and Surveillance. The Government indicates that the observations will be sent on the subject in the near future.
4. 422. As regards the allegation concerning violation of the collective agreement by applying sanctions without the presence of the trade union and other allegations made by SINALTRABAVARIA, the Government states that a support group for cases pending before the ILO has requested information on the progress of the inquiry and that it will send information on its final outcome.
5. 423. As regards the allegation that Bavaria SA is facilitating the establishment of a new trade union organization, the Government states that the registration of this organization was carried out in accordance with the formalities prescribed in labour legislation, given that it consisted of workers of the enterprise who met the requirements for registration and in accordance with the provisions on freedom of association laid down in ILO Conventions Nos. 87 and 98. The Government adds that Bavaria SA and SINALTRABAVARIA signed a coexistence agreement dated 9 June 2001 and a collective labour agreement with effect from 1 January 2001 to 31 December 2002.
6. 424. In its communication dated 6 November 2001, the Government states that: (1) concerning the failure to reinstate Mr. Jaime Romero, the executive branch has no power to interfere in the decisions of the judiciary, by virtue of the constitutional separation of powers; (2) as regards the failure to recognize the right of SINALTRAINBEC to participate in collective bargaining in the Cervecería Unión enterprise, the Antioquia regional department of the Ministry of Labour and Social Security will open an administrative inquiry in order to ascertain whether the enterprise failed to comply with section 2 of Decree No. 1373, which obliges the majority trade union to inform the other trade unions of the date on which general assemblies are to be held in the enterprise so that the latter may submit their demands; (3) as regards persecution for having put forward a list of demands, the relevant inquiries will be opened; (4) as regards accusations of being “guerrillas” and the threats made against SINALTRAINBEC members, means of guaranteeing their safety are available to the persons concerned and the Ministry of Internal Affairs has a programme in place for the protection of trade union leaders whose physical integrity has been threatened.
7. 425. As regards the allegations concerning the Caja de Crédito Agrario (CCA), the Government states that the Coordinator for Inspection and Surveillance of the Cundinamarca Territorial Directorate of the Ministry of Labour and Social Security decided, by resolution No. 000500 of 14 April 2000, in the context of an administrative inquiry, to refrain from taking administrative measures against the CCA, which was in liquidation. Concerning the allegation by SINTRACREDITARIO that the enterprise refused to negotiate, the Government states that according to information provided by the Ministry of Labour, at the time of election of representatives for collective bargaining and on the date on which the list of demands was presented, the persons nominated by the trade union for such purposes were not in fact employed by the CCA and, in view of the fact that according to section 432(2) of the Substantive Labour Code, delegates elected for bargaining purposes must be currently employed by the enterprise or establishment, the Ministry could not require the CCA to initiate bargaining.
8. 426. As regards the registration of the executive committee of the National Union of Caja Agraria Workers (SINTRACREDITARIO), the Government states that the Ministry of Labour, by resolution No. 00427 of 20 April 2001, refused registration given that, under section 388 of the Substantive Labour Code and article 5(2) of the trade union’s by-laws, in order to be a member of the executive committee, candidates are required to be employed by the CCA, which does not at present have any direct employees, as it was dissolved and subsequently went into liquidation. The Government adds that section 467 of the Substantive Labour Code provides that the collective labour agreement only applies to employment contracts during its term. Consequently, since there are no active employees, the collective agreement is not in effect, given that its term expired on 31 December 1999.

D. The Committee's conclusions

1. 427. The Committee observes that when it examined this case concerning acts of discrimination and anti-union practices at its March 2001 meeting, it had requested the Government to take certain measures or communicate information in this regard.
   • Noel Biscuit Company
2. 428. As regards the Committee’s request for information concerning all legal actions brought in respect of the amendment of the statutes of SINTRANOEL to change it into an industrial union, the Committee notes the information provided by the Government to the effect that the SINTRANOEL trade union has not brought any legal actions in order to amend its statutes. The Committee also notes that the Government states that the ASPROAL trade union of workers of the Noel Biscuit Company was duly registered.
   • National Coffee Growers Federation of Colombia
3. 429. As regards the allegations presented by SINTRAFEC concerning the failure to deduct trade union dues, the Committee notes that the Government states that administrative proceedings are statute-barred, since the union dues in question date back to the period from 1984 to 1987, and that the judicial authority rejected the actions brought in the absence of legal provisions obliging the enterprise to deduct the dues. As regards the failure to deduct the union dues of SINTRAINDUSCAFE members, the Committee notes that the Government states that the dues in question are now being deducted.
   • Bavaria SA enterprise
4. 430. As regards the alleged dismissals of members of the SINALTRABAVARIA union for having participated in the strike of 31 August 1999, the Committee notes that the Government states that the resolution of the administrative inquiry is awaiting signature by the Coordinator for Inspection and Surveillance. The Committee deplores the fact that despite the time which has elapsed, no decision has been taken in this regard and requests the Government to send its observations as soon as possible.
5. 431. As regards the allegations concerning: (1) interference by the enterprise by challenging the registration of the executive committee of SINALTRABAVARIA; (2) refusal by the enterprise to negotiate the list of demands; (3) application of the collective agreement to the clear benefit of workers who are not members of the trade union; (4) the establishment of blacklists; (5) the dismissal of Mr. Jairo Noguera Cortez; (6) the constant denial of trade union leave to trade union officers; and (7) the dismissal of officers covered by trade union immunity, the Committee notes that the Government states that a coexistence agreement was signed on 9 June 2001 and a collective agreement was signed with effect from 1 January 2001 to 31 December 2002.
6. 432. Concerning the allegations that the Bavaria SA enterprise is facilitating and promoting the establishment of a new trade union, the Committee notes that the Government states that the registration of the new organization was carried out in accordance with the formalities prescribed by labour legislation.
   • Cervecería Unión SA
7. 433. As regards the decision not to reinstate Mr. Jaime Romero handed down by the judiciary (which only ordered that he be compensated), the Committee notes that according to the Government, the executive branch has no power to interfere in the decisions of the judiciary. The Committee recalls nonetheless that "no one should be subjected to anti-union discrimination because of his or her legitimate trade union activities and the remedy of reinstatement should be available to those who were victims of anti-union discrimination" [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 755]. The Committee deeply deplores the dismissal of Mr. Romero on anti-union grounds and requests the Government to take measures so that he may be reinstated in his job or, if this is not possible, to ensure that he is fully compensated.
8. 434. As regards the allegations concerning: (1) the failure to recognize the right of SINALTRAINBEC to participate in collective bargaining in the Cervecería Unión enterprise; (2) persecution for having put forward a list of demands, the Committee notes that the Government states that the Ministry of Labour will open the relevant administrative inquiries. The Committee requests the Government to keep it informed in this respect.
9. 435. As regards the allegations to the effect that the enterprise accuses SINALTRAINBEC members of being "guerrillas" and the threats made against them, the Committee notes the information provided by the Government concerning the means available to the persons concerned to guarantee their safety and the sanctions applicable to persons who commit acts of anti-union discrimination. Given the risk that this kind of accusation involves in Colombia to the safety and physical integrity of the trade unionists who are being accused, the Committee requests the Government to take the necessary measures to ensure that the members who have been threatened are promptly and effectively afforded protection and that such acts are not repeated. The Committee requests the Government to keep it informed of any measures taken in this respect.
   • Caja de Crédito Agrario
10. 436. As regards the allegations presented by SINTRACREDITARIO concerning: (1) the refusal by the Ministry of Labour and Social Security, by resolution No. 00427 of 20 April 2001, to register the executive committee of SINTRACREDITARIO; (2) the refusal by the Caja de Crédito Agrario to negotiate the list of demands; and (3) the recruitment of some employees by the Banco de Crédito Agrario without adhering to the terms of the collective agreement in force, the Committee notes that the Government states that: (1) the executive committee could not be registered owing to the fact that the CCA did not have any active employees at the time the request was made; (2) on the date on which the list of demands was presented the persons nominated by the trade union for bargaining purposes were not employed by the CCA; (3) under section 467 of the Substantive Labour Code, collective agreements apply to contracts of employment during their term and that as there are no active employees in the CCA, the term of the collective agreement expired on 31 December 1999. Therefore this collective agreement did not apply to the recruitment of new workers by the Banco de Crédito Agrario. Given the enormous number of jobs affected by the liquidation of the CCA, the Committee requests the Government to recommend to the recently established Banco Agrario, should it anticipate hiring new workers, to make every effort to re-hire as many as possible of the workers and trade union officers who have lost their jobs. The Committee requests the Government to keep it informed in this respect.
11. 437. As regards the dismissal of officers of SINTRACREDITARIO, disregarding their trade union immunity, and the failure to carry out court orders for the reinstatement of some of these trade union officers (59 according to the complainant), the Committee deplores the fact that the Government has not provided information in this respect. In these circumstances, the Committee urges the Government to take steps without delay to ensure that the court decisions ordering their reinstatement are carried out and requests it to keep it informed of the final outcome of the rest of the judicial proceedings.