Rapport intérimaire - Rapport No. 325, Juin 2001

1. 269. The complaints in this case are contained in communications of the National Trade Union of Public Employees of the Ministry of Labour and Social Security (SINALMINTRABAJO) dated 24 January, 10 April and 2 June 2000, of the Trade Union of Loaders of Antioquia (SINTRACOAN) dated 26 January, 6 April and 26 July 2000, of the General Confederation of Democratic Workers (CGTD) dated 20 January, 15 February and 17 July 2000, of the Association of Workers of Banco Central Hipotecario (ASTRABAN) dated 25 January 2000, of the National Union of Banking Employees (UNEB) dated 1 February 2000, of the Trade Union of Workers of Lorencita Villegas de Santos University Children’s Hospital (SINTRAINFANTIL) dated 2 February 2000, of the Trade Union of Workers of Setas Colombianas (SINTRASETAS) dated 2 and 9 February, 18 April 2000 and 23 January 2001, of the Trade Union of Health Workers and Employees of Magdalena (SINTRASMAG) dated 10 February 2000, of the National Union of the Textile Industry Workers (SINTRATEXTIL), Medellín branch, dated 10 February and 2 May 2000, of the Colombian Association of Banking Employees (ACEB) dated 10 February and 24 March 2000, of the Trade Union of Textile Industry Workers of Colombia (SINTRATEXTIL), Sabaneta branch, dated 11 February, 11 April and 15 November 2000, of the Public Employees’ Association of the Municipality of Medellín (ADEM), of the Trade Union of Workers of the Department of Antioquia (SINTRADEPARTAMENTO), of the Association of Departmental Employees of Antioquia (ADEA), of the Trade Union Association of Municipal Education Workers (ASDEM), of the Trade Union of Workers and Employees of Public and Autonomous Services and Decentralized Institutes of Colombia (SINTRAEMSDES) and the National Trade Union of Workers of the ISS (SINTRAISS) dated 11 February 2000, of the General Confederation of Democratic Workers (CGTD), Antioquia branch, dated 11 February 2000, of the Trade Union of Public Employees of the Transit and Transport Secretariat of Santa Fé de Bogotá, D.C. (SETT) dated 14 and 15 February 2000, of the Colombian Association of Flight Attendants (ACAV) dated 15 February 2000, of the Trade Union of Workers of Quibi S.A. (SINTRAQUIBI) dated 9 and 16 February 2000, of the Trade Union of Workers of Valle University Hospital (SINSPUBLIC) dated 6 March 2000, of the Trade Union of Workers of the Water Supply and Sewerage Enterprise of Bogotá (SINTRACUEDUCTO) dated 17 April 2000, of the National Association of Workers of Banco de la República (ANEBRE) dated 25 April 2000, of the National Trade Union of Colombian Charitable Institutions (SINTRABENEFICENCIAS) dated 20 May 2000, of the National Trade Union of Workers of Alcalis de Colombia Limitada, Alco Ltda. (SINTRALCALIS), dated 26 May 2000, of the Single Confederation of Workers of Colombia (CUT), Antioquia branch, dated 9 June and 7 July 2000, and of the Trade Union of Public Servants of the FAVIDI District Housing Fund (SINTRAFAVIDI) dated 24 May and 8 August 2000.
2. 270. The Government sent partial observations in communications dated 19 July 2000 and 31 January, 7 February and 28 March 2001.
3. 271. 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), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

• National Trade Union of Public Employees of the Ministry of Labour and Social Security (SINALMINTRABAJO)
  272. 272 In its communications of 24 January, 10 April and 2 June 2000, the National Trade Union of Public Employees of the Ministry of Labour and Social Security (SINALMINTRABAJO) states that the Ministry of Labour and Social Security has not appointed a negotiating committee to embark on talks and engage in collective bargaining, despite the fact that a list of petitions was presented to it on 10 December 1999 in accordance with Act No. 411 of 1997 ratifying ILO Convention No. 151. The list of demands had been drawn up at the National Assembly of Delegates held from 4 to 6 November 1999. After repeated requests to the Ministry to begin talks, the latter stated that a committee had been appointed to hear the negotiators designated by SINALMINTRABAJO. A meeting was scheduled for 20 January 2000. On that date, according to the complainant, it turned out that no negotiating committee had been set up to discuss the list of petitions, but that the abovementioned committee merely acted as spokespersons of the Ministry and there was no intention to appoint a committee or negotiate the petitions given that ILO Convention No. 151 (Act No. 411 of 1997) was not binding as it had not been registered by the Government of Colombia. The complainant instituted enforcement proceedings with the judiciary to bring the Ministry of Labour to the bargaining table, but its action was rejected in every instance. The complainant adds that, in violation of Presidential Directive No. 02 of 2 March 1999, the Ministry did not allow the trade union to participate in the restructuring process initiated on 11 February 2000 under Decree No. 1128 of 1999, which involved the dismissal of 350 out of a total of 1,450 officials. Of these 350 officials, 105 were members of the organization, including the chairperson of the Santander executive board. The complainant maintains that this violates the guarantees of trade union immunity.
• Trade Union of Loaders of Antioquia
• (SINTRACOAN)
  273. 273 In its communications dated 26 January, 6 April and 26 July 2000, the Trade Union of Loaders of Antioquia (SINTRACOAN) alleges that, since a local executive of a loaders’ trade union was established at the Cervecería Unión enterprise in the municipality of Itagüí in December 1997, the loaders have been denied access to the workplace and security guards were ordered to deny entry to at least 40 loaders, most of whom were members or officers of the Trade Union of Loaders, Itagüí executive board. The complainant states that the Office of the Attorney-General of the Nation investigated the case and only held the head of the team of loaders responsible for violating the right of assembly and of association. The complainant alleges that on the date on which the enterprise was notified of the establishment of the trade union, 30 workers were dismissed, ten of whom were trade union officers. The complainant states that the enterprise denies the above, arguing that there is no employment relationship between the loaders and Cervecería Unión, since these workers are considered to be self-employed. Lastly, the complainant states that the enterprise only recognizes the existence of one trade union, the Trade Union of Workers of Cervecería Unión (SINTRACERVUNION) and that after proceedings had been instituted by some of the loaders, the labour courts ruled that there was no employment relationship between the loaders and Cervecería Unión S.A.
• General Confederation of Democratic
• Workers (CGTD)
  274. 274 In its communications of 20 January, 15 February and 17 July 2000, the General Confederation of Democratic Workers (CGTD) alleges: (1) that the Government issued a document infringing freedom of association and the right to collective bargaining by providing that persons who receive more than twice the statutory minimum wage will not be granted a pay increase in view of the economic crisis. According to the CGTD this is in violation of Conventions Nos. 87 and 98 as it prevents trade unions from agreeing on wage increases; (2) failure to register new members of the national executive board, the executive committee and the complaints committee of the national federation of state employees UTRADEC, which prevents them from carrying out their activities in the new trade union bodies until they have been registered in the Register of Trade Unions; (3) dismissal of trade union officers (Ms. Sandra Patricia Russi and Ms. María Librada García of the SINTRAYOPAL trade union, by Decree No. 228 of 24 December 1994; (4) dismissal of trade union leader Ms. Gladys Padilla of the Arauca town hall on 28 January 2000; (5) dismissal of Mr. Juan de la Rosa Grimaldos, president of the ASEINPEC trade union, and of the chairperson, vice-chairperson, auditor and first, third and fifth substitute members of the executive board of the Medellín branch of ASEINPEC, as well as two workers who had been appointed to replace the vice-chairperson and the auditor.
• Association of Workers of Banco Central
• Hipotecario (ASTRABAN)
  275. 275 In its communication of 25 January 2000, the Association of Workers of Banco Central Hipotecario (ASTABAN) alleges that since 1996 the bank has been promoting voluntary retirement plans and that the vast majority of staff whose employment relationship has been terminated by this means are members of ASTRABAN. The complainant adds that under cover of “operational integration” (involving the transfer of homogeneous assets and liabilities totalling approximately 1.5 billion pesos to an entity called Granahorrar, as well as the transfer of 30 offices) it is intended to dismiss 2,176 workers, most of whom are members of the trade union, which would render ineffective the obligations laid down in 18 collective agreements concluded since 1958 and four arbitration awards.
• National Union of Banking Employees (UNEB)
  276. 276 In its communication of 1 February 2000, the National Union of Banking Employees (UNEB) alleges that: (1) in Citibank, after a list of demands had been presented, trade union officers charged with the task of reporting to the workers on the progress of negotiations once the direct settlement stage had ended were prevented from entering the bank by placing the offices under military control and requisitioning staff. The complainant alleges that, in this context, an attempt was made to detain trade unionists Ms. Ana Julia Becerra and Mr. Julio César Benjumea, who were reporting to the workers, and the police physically attacked trade unionists Mr. Carlos Parada and Ms. Nubia Rodríguez. In addition, the workers were threatened with dismissal if they listened to the trade union officers and exercised the right to organize; (2) in Banco Popular, after a list of demands had been submitted, the bank put forward a proposal that was 60 per cent less favourable than the collective agreement, as a result of which the direct settlement stage was exhausted and it was decided to hold polls to decide between recourse to an arbitration tribunal and declaring a strike in order to settle the dispute. The complainant alleges that the bank wished to prevent the vote, arguing that it could not be carried out in the workplace, but under pressure from the Office of the Ombudsman and the Office of the Procurator-General, as well as the Ministry of Labour, the workers and their organization, the vote was held. The bank subsequently made the workers indicate on pre-printed documents whether they had voted for the arbitration tribunal or for the strike, in violation of section 61 of the Labour Code. Although 85 per cent of the workers had voted in favour of a strike, planned to begin on 25 November 1999, it was prevented by the security forces, which took control of the offices and forced the workers to stay at their workstations. The trade union representatives were evicted from the premises and some were arbitrarily detained. Workers who did not return to work were threatened with dismissal. On 30 November the strike was suspended owing to the absence of the necessary guarantees. Lastly, the complainant alleges that bank security guards physically attacked trade unionist Ms. Claudia Fabiola Díaz Riascos; (3) in Banco Bancafé, after the direct settlement stage had expired (the enterprise denounced the collective agreement in force in its entirety) it was decided to hold a strike. Before this occurred, the bank made a large number of workers sign a commitment obliging them to vote for recourse to an arbitration tribunal instead of a strike, under threat of closure of the enterprise. Moreover, workers who were not members of the organization were encouraged to protest against not having been able to participate in the voting process. The complainant adds that on 24 November 1999, by means of a resolution of the Ministry of Labour and Social Security disregarding the vote in favour of the strike, the Government ordered the constitution of a compulsory arbitration tribunal to settle the collective labour dispute, in violation of the provisions of international labour standards.
• Trade Union of Workers of Lorencita
• Villegas de Santos University Children’s
• Hospital (SINTRAINFANTIL)
  277. 277 In its communication of 2 February 2000, the Trade Union of Workers of the University Children’s Hospital (SINTRAINFANTIL) states that on 4 January 1999 it submitted a list of demands without obtaining a response from management. The complainant adds that the Ministry of Labour and Social Security was accordingly requested to convene an arbitration tribunal. On 9 July 1999, the Ministry issued resolution No. 1616 denying the right to collective bargaining. Lastly, the complainant alleges that in addition to the abovementioned situation, trade union officers are constantly harassed by means of intimidation and persecution by state bodies.
• Trade Union of Workers of Setas
• Colombianas (SINTRASETAS)
  278. 278 In its communications of 2 and 9 February and 18 April 2000, the Trade Union of Workers of Setas Colombianas (SINTRASETAS) alleges that since the trade union was established on 7 October 1998, the enterprise has committed various acts of discrimination against its members and has refused to bargain with the trade union. In a communication dated 8 February 2001, the complainant reports that on 23 January 2001 a settlement was reached with the Setas Colombianas S.A. enterprise, whereby it withdrew the complaint presented to this Committee. (The complainant attaches a copy of the agreement with its communication.)
• Trade Union of Health Workers and
• Employees of Magdalena (SINTRASMAG)
  279. 279 In its communication of 10 February 2000, the Trade Union of Health Workers and Employees of Magdalena (SINTRASMAG) alleges that, as part of the restructuring and modernization of state bodies: (1) 600 workers were dismissed, including the trade union officers, from the Magdalena local government at the end of 1998; (2) 350 workers were dismissed from the Magdalena Health Service; (3) 310 workers were dismissed from Julio Méndez Barreneche Central Hospital, including nearly the entire executive committee, on 31 January 2000. The complainant reports that 115 of these 310 workers were entitled to immunity by virtue of their trade union office or other circumstances. The complainant alleges further that, since the notification of the dismissals, the Government has deployed troops and subsequently placed the hospital under military control, preventing the SINTRASMAG officers from entering it. In addition, the Santa Marta regional labour directorate has not issued any decision on these acts, although a complaint was lodged over a year ago against the management of the Central Hospital for breach of the collective agreement.
• National Union of Textile Industry Workers (SINTRATEXTIL), Medellín branch
  280. 280 In its communications of 10 February and 2 May 2000, the National Union of Textile Industry Workers (SINTRATEXTIL), Medellín branch, alleges that the following acts occurred in two textile enterprises: (1) in 1992, in the Confecciones Leonisa S.A. enterprise, before the submission of a list of demands which was in the course of being drafted, the enterprise called on all the workers to sign a collective agreement that could not be unilaterally denounced, awarding a pay increase six months ahead of time along with other non-statutory benefits, offering the workers all the benefits provided for in the collective agreements as well as a cash bonus. In order to be able to sign this contract, workers were required not to belong to the trade union or, if they did, to withdraw from it. As a result, after three days (the time limit given to employees to sign the contract) only 70 members remained in the trade union, out of a former membership of 250. Workers who did not sign the contract did not receive the abovementioned economic benefits, which meant that they lost three months’ pay increase between 1993 and 1995. At the end of this period the trade union only had 40 members left. It instituted proceedings for protection of constitutional rights (tutela) with the Constitutional Court, claiming recognition of the right to equality, which was obtained in August 1995. Nonetheless, to date the enterprise is still imposing the collective contract on the workers every two years without any participation by the trade union; and (2) in the Textiles Rionegro enterprise, 34 workers who had peacefully and legally demanded their wages during the course of 1999 were dismissed; an application was made to lift the trade union immunity of eight officers for having demanded the workers’ wages, and union dues withheld by the enterprise are not being transferred to the trade union. SINTRATEXTIL also presented allegations concerning the Everfit-Indulana enterprise, which have already been dealt with in Case No. 2051 and will therefore not be examined by the Committee in this case.
• Colombian Association of
• Banking Employees (ACEB)
  281. 281 In its communications dated 10 February and 24 March 2000, the Colombian Association of Banking Employees (ACEB) states that the workers employed by Banco Santander-Colombia are members of four trade unions: the ACEB, the Association of Democratic Workers of the Banking and Financial Sector (ADEBAN), the Association of Workers of Banco Santander Colombia S.A. (ASTRABANSAN) and the UNEB. The complainant adds that since none of the trade unions has an absolute majority, the Ministry of Labour issued resolution No. 002142 of 1 September 1999 providing for the application of Decree No. 1373 of 1966, section 11(4), clause A. In this context, the ACEB convened the other trade unions to a meeting on 7 October 1999 to set up the drafting committee, which the UNEB did not attend. Nonetheless, despite the absence of the UNEB and since the majority were in attendance, the drafting committee proceeded to prepare a unified list of demands, which was submitted for approval to the trade union assemblies. Subsequently, again in accordance with Decree No. 1373, a negotiating committee composed of three members was appointed, which was elected at the joint assembly held on 16 October 1999 in the presence of the labour inspector appointed by the Ministry. This assembly was not attended by the UNEB, which requested the Ministry of Labour for the Antioquia region to apply clause B of Decree No. 1373 which provides that the procedure set forth in clause A having been exhausted, a vote shall be called to determine which trade union is to represent all of the workers. The Antioquia regional Ministry of Labour convened a general assembly for this purpose on 21 October 1999. However, two votes were held on that date: one by the UNEB and the Ministry of Labour on the enterprise premises, which was prolonged until 26 October 1999, and another by the other trade unions which, although they had carried out the abovementioned procedures, decided to comply with the Ministry of Labour’s decision to hold a vote. The Antioquia regional Ministry of Labour produced a “report on the counting of the votes held in Banco Santander-Colombia S.A. with the trade unions ACEB, UNEB, ASTRABANSAN and ADEBAN”, which declared the UNEB to be the majority union. This document was never made official, which meant that it was impossible to challenge it. The UNEB presented a copy of this document to Banco Santander demanding that it begin negotiations, which it agreed to, disregarding what had been done by the other three trade unions, and not allowing them to present demands or their representatives to participate in bargaining in accordance with the law.
  282. 282 The complainant states that the collective agreement was signed on 9 December 1999 between the UNEB and the enterprise. This agreement undermines the guarantees with regard to trade union leave obtained by the ACEB. It also provides for a deduction of 20 per cent of the wage increase for all non-unionized staff covered by the agreement for the month of September during the first two years of its term. It should be pointed out that members only have a 15 per cent deduction. This deduction, which was not approved by the workers in the general assembly, is paid only to the UNEB even though it does not account for the majority of the workers. It means that workers who wish to continue to be members of a trade union other than the UNEB will have to pay double dues, placing them at a disadvantage and impairing the free exercise of the right to organize.
• Trade Union of Textile Industry Workers of
• Colombia (SINTRATEXTIL), Sabaneta branch
  283. 283 In its communications of 11 February, 11 April and 15 November 2000, the Trade Union of Textile Industry Workers of Colombia (SINTRATEXTIL), Sabaneta branch, alleges that since it was first established the management of the Quintex S.A. enterprise has pursued a policy aimed at eliminating the organization. Specifically, it alleges the dismissal of nine trade union officers on 28 November and 24 December 1998 and on 22 January 1999 and states that beginning on 25 September 1999 the enterprise proceeded to dismiss the rest of the trade union’s members.
• Public Employees’ Association of the Municipality of Medellín (ADEM), Trade Union of Workers of the Department of Antioquia (SINTRADEPARTAMENTO), Association of Departmental Employees of Antioquia (ADEA), Trade Union Association of Municipal Education Workers (ASDEM), Trade Union of Workers and Employees of Public and Autonomous Services and Decentralized Institutes of Colombia (SINTRAEMSDES) and the National Trade Union of Workers of the ISS (SINTRAISS)
  284. 284 In their communication of 11 February 2000, the Public Employees’ Association of the Municipality of Medellín (ADEM), the Trade Union of Workers of the Department of Antioquia (SINTRADEPARTAMENTO), the Association of Departmental Employees of Antioquia (ADEA), the Trade Union Association of Municipal Education Workers (ASDEM), the Trade Union of Workers and Employees of Public and Autonomous Services and Decentralized Institutes of Colombia (SINTRAEMSDES) and the National Trade Union of Workers of the ISS (SINTRAISS) criticize Act No. 549 adopted by the Congress of the Republic of Colombia. Specifically, they object to section 13, which establishes machinery making it practically impossible to carry out collective bargaining by requiring that the territorial public corporation authorize bargaining if it involves committing resources under more than one budgetary period, as well as section 14, which provides for the obligation of the employer to denounce collective agreements on matters relating to social security. Moreover, it does not leave any room for collective bargaining on this subject.
• General Confederation of Democratic
• Workers (CGTD), Antioquia branch
  285. 285 In its communication of 11 February 2000, the General Confederation of Democratic Workers (CGTD), Antioquia branch, alleges: (1) the dismissal, on 14 December 1999, of 57 unionized workers, including the members of the executive committee and the complaints committee of the Trade Union of Municipal Workers of Puerto Berrío, in retaliation for the trade union’s having initiated the process of denouncing the collective agreement; (2) the dismissal of 32 members of the Association of Employees of the Municipality of Puerto Berrío; (3) that in September 1998 the Association of Radio and Television Workers (ANALTRARADIO-TV) presented the enterprise Radial Circuito Todelar with a list of demands and since that date the enterprise has challenged previous negotiations, preventing the constitution of a compulsory arbitration tribunal and made an application to the courts for lifting the trade union immunity of the members of the executive of ANALTRARADIO-TV.
• Trade Union of Public Employees of the Transit and Transport Secretariat of Santa Fé de Bogotá, D.C. (SETT)
  286. 286 In its communications of 14 and 15 February 2000, the Trade Union of Public Employees of the Transit and Transport Secretariat of Santa Fé de Bogotá, D.C. (SETT), alleges that the administration of Santa Fé de Bogotá, D.C., has violated the right to organize and to freedom of association by denying trade union leave requested by the president, the public relations secretary and the general secretary of SETT. The complainant adds that the enterprise subsequently applied for authorization from the judicial authorities to dismiss the abovementioned trade union officers, alleging dereliction of duty, which was granted. The complainants state that they were finally dismissed on 9 November 1998.
• Colombian Association of Flight
• Attendants (ACAV)
  287. 287 In its communication of 15 February 2000, the Colombian Association of Flight Attendants (ACAV) alleges that the American Airlines enterprise has failed to comply with several of the provisions of its current collective agreement with the organization. Specifically, the complainant alleges the following violations of the agreement by the enterprise: (1) non-compliance with the provisions of clause 11, under which it is obliged to continue its policy of hiring Colombian flight attendants to work on flights departing from Colombia, by not assigning Bogotá-based crew to flights operating between Miami and Cali, on which foreign crew members are used; moreover, the enterprise has not hired Colombian staff for these operations for the past two years; (2) unilateral imposition of a system of itineraries which is different from that agreed upon in clause 12 of the agreement; (3) non-compliance with clause 29, which provides that as of 1 January 1999 the enterprise shall adjust flight attendants’ basic pay by a percentage equal to the Consumer Price Index (CPI) for 1998, by unilaterally interpreting its scope in a restrictive manner, resulting in a lower increase than that agreed upon; (4) non-compliance with clause 32, which provides that American Airlines shall observe the labour provisions in force in Colombia with regard to remuneration for Sundays and holidays, by interpreting the law in a manner which suits them. The complainant adds that the abovementioned violations have a negative impact on the exercise of freedom of association since they undermine members’ confidence in the organization and in its ability to represent them and, as a result, a number of workers have withdrawn from the union, while others have expressed their disagreement and declared their intention to withdraw. The complainant states that, despite the fact that complaints have been lodged to this effect, the administrative labour authorities have not taken the necessary measures to ensure compliance with obligations under the agreement. In this respect, the complainant states that the Ministry of Labour, by means of resolution No. 001881 of 2 August 1999 and resolution No. 003015 of 6 December 1999, refrained from declaring that there had been a violation of the agreement and taking the necessary corrective measures, with regard to clauses 11 and 29. Concerning clause 12, the Ministry of Labour sanctioned American Airlines by means of resolution No. 0040 of January 2000, against which the enterprise has filed an appeal.
• Trade Union of Workers of Quibi S.A. (SINTRAQUIBI)
  288. 288 In its communications of 9 and 16 February 2000, the Trade Union of Workers of Quibi S.A. (SINTRAQUIBI) alleges that, in the course of successive rounds of collective bargaining carried out in the enterprise, the workers have had to systematically give up their rights in order to keep their jobs, which even then they did not succeed in doing, and that, faced with a new round of bargaining, the enterprise is calling for definitive termination of the collective agreement and a three-year freeze on wage increases
• Trade Union of Workers of Valle University Hospital (SINSPUBLIC)
  289. 289 In its communication of 6 March 2000, the Trade Union of Workers of Valle University Hospital (SINSPUBLIC) alleges that, on 23 December 1999, the Evaristo García Valle University Hospital E.S.E. denied trade union leave requested by a number of officers of the organization, based on resolution No. 057 of the same date requiring that applicants for such leave provide justification and proof that they are trade union officers, as well as a schedule of their activities. The complainant adds that this measure was taken in retaliation for the information meeting held on 22 December of the same year, there having been no objection to the grant of such leave until that date, and explains that the holding of this meeting did not prevent the normal delivery of services in the institution.
• Trade Union of Workers of the Bogotá Water Supply
• and Sewerage Enterprise (SINTRACUEDUCTO)
  290. 290 In its communication of 17 April 2000, the Trade Union of Workers of the Bogotá Water Supply and Sewerage Enterprise (SINTRACUEDUCTO) states that, on 19 November 1999, a labour dispute broke out after the agreement concluded with the enterprise was denounced and a list of demands submitted. The dispute culminated in collective bargaining between 3 December 1999 and 28 January 2000 and the signing of a new collective agreement. The complainant pointed out that, at the outset of the dispute and in view of the enterprise’s reluctance to bargain, the trade union filed complaints with the Procurator-General and the district human rights ombudsman, an administrative complaint with the labour relations division of the Ministry of Labour and Social Security and a criminal complaint with the Office of the Attorney-General for violation of the right to organize. Up to 9 April 2000 the enterprise had failed to comply with the agreements, citing section 13 of Act No. 549 of 28 December 1999, which, according to the enterprise, prevented immediate application of the agreement until authorization was given by the Bogotá City Council. This section does in fact provide that prior authorization must be obtained from the departmental assembly or district or municipal council in order to conclude collective agreements in territorial bodies or their decentralized units which involve a commitment of resources under more than one budgetary period. As a result, the enterprise withheld the 7 per cent pay increase applicable as of 1 January 2000. The complainant adds that this provision is not applicable in this case, since it was adopted after the collective dispute arose and because resources under more than one budgetary period were not committed for pensions as this item was withdrawn from bargaining by the enterprise. This had already been obtained in previous negotiations which are still in force, according to the Supreme Court of Justice’s approval of the arbitration award which settled the collective dispute in 1996. Moreover, sections 13, 14 and 15 of Act No. 549 constitute a limitation on the right to collective bargaining, contrary to ILO Convention No. 98 and national jurisprudence.
  291. 291 The complainant adds that, in order to express their disagreement with the measures taken by the enterprise, the workers held a peaceful work stoppage on 30 and 31 March 2000, while continuing to provide basic services. This demonstration was violently repressed by riot police at the request of the enterprise and physical attacks were perpetrated on officers of the organization and other demonstrators, and 12 workers were detained. The complainant states further that the enterprise failed to comply with its obligations under the collective agreement concerning the following other points: (1) the intention to dismantle the Ramón B. Jímeno mixed high school for children of the enterprise’s employees and retirees; (2) failure to comply with clause 42 of the agreement, under which the enterprise undertook to maintain the 2,700 established posts and, in the event that this number would have to be changed, the necessary technical studies would be carried out with the participation of an industrial relations committee that would include members of the trade union (by means of contracts for services, consultancies and contracts for minor works, the enterprise has hired nearly the same number of workers again, creating a parallel workforce that is displacing the established staff of the enterprise); and (3) non-recognition of the staff committee comprised of representatives of the trade union and the enterprise, replacing it by a disciplinary inquiries unit, which does not allow trade union participation at any stage of its procedures. Lastly, the complainant adds that, despite the fact that shifts had been scheduled on 1 and 2 April 2000 to deliver water supply and sewerage services in the southern district of the city, the enterprise did not allow the workers to carry out their duties, depriving 3 million persons of services, in order to prevent the workers from continuing the protest action on Monday, 3 April 2000. Moreover, on 4 April the enterprise ordered that the workers’ pay for 30 and 31 March 2000 be docked as a consequence of the protests held.
• National Association of Workers of
• Banco de la República (ANEBRE)
  292. 292 In its communication of 25 April 2000 the National Association of Workers of Banco de la República (ANEBRE) alleges that Banco de la República disregarded the provisions of the arbitration award issued in 1965 in the course of the collective bargaining process, and made provision for the establishment of a non-statutory benefit consisting of a special pension for dismissal without just cause of workers with more than ten years’ length of service. According to the complainant, at no point did the parties agree on an exception or condition with regard to the length of service or age for entitlement to this benefit. The complainant adds that, surprisingly, the bank, contrary to the terms of the agreement, cited in court the existence of a length-of-service or age requirement, which was rejected in a ruling of 5 October 1988. Nonetheless, according to the complainant, on 11 February 2000, the Labour Chamber of the Supreme Court of Justice ruled that the parties “agreed that entitlement [to the pension] would arise when the worker reached the [age] established by the law for similar cases …”. The complainant denies that the parties have explicitly agreed on an age restriction for entitlement to this benefit.
• National Trade Union of Colombian Charitable
• Institutions (SINTRABENEFICENCIAS)
  293. 293 In its communication of 20 May 2000, the National Trade Union of Colombian Charitable Institutions (SINTRABENEFICENCIAS) states that, in the exercise of the right to collective bargaining, a list of demands was submitted to the Cundinamarca charitable institution, pursuant to the provisions of articles 1, 2, 3 and 8 of the Labour Relations (Public Service) Convention, 1978 (No. 151), approved by Act No. 411 of 1997 and declared enforceable by the Constitutional Court in a ruling handed down on 27 July 1998, but the charitable institution refused to initiate bargaining. The trade union then initiated enforcement proceedings before the Council of State, which ordered the Cundinamarca charitable institution to negotiate. Once negotiation had taken place without a settlement to the dispute being reached, the trade union requested the Ministry of Labour to constitute an arbitration tribunal. In resolution No. 00525 of February 2000, the Ministry turned down the request, citing the absence of a legal procedure for collective bargaining by public employees’ trade unions. The complainant alleges that this assertion is without legal basis, since section 3 of the Labour Code provides that the collective or trade union side also replies to the official sector, which includes public employees.
• National Trade Union of Workers of Alcalis de Colombia Limitada, Alco Ltda. (SINTRALCALIS)
  294. 294 In its communication of 26 May 2000, the National Trade Union of Workers of Alcalis de Colombia Limitada, Alco Ltda. (SINTRALCALIS), states that, on 11 February 1991, the Alcalis de Colombia Limitada, Alco Ltda., enterprise dismissed 81 workers from its Cartagena workforce, citing the enterprise’s economic and financial situation. In the same way, on 26 February 1993 the enterprise dismissed its entire workforce both in Cajicá and Cartagena, unilaterally, unjustly and unlawfully terminating contracts of employment concluded for an indefinite period, on grounds that the enterprise was going into final liquidation. In accordance with Colombian legislation, which requires authorization from the administrative authorities in the case of public employees, the decision was made official on 3 March 1993.
  295. 295 Although all of the workers claimed the right to reinstatement laid down in the collective agreement, to be decided by the labour issues committee provided for in the agreement, the enterprise prevented the committee from taking a decision on the workers’ request. In the absence of a decision by the labour issues committee, the workers proceeded to file claims with the labour jurisdiction for recognition of their right under the agreement and reinstatement in accordance with the clause of the collective agreement providing for the workers’ right to be reinstated in the event of dismissal without just cause or in breach of the procedure laid down in the agreement. The complainant states that the labour courts ordered reinstatement of the workers and consequent payment of the remuneration and benefits that they had not received from the moment of their dismissal up to their definitive reinstatement. The enterprise appealed against this decision before the Superior Court of Cartagena, whose Labour Chamber issued an initial ruling ordering reinstatement, which was challenged in review proceedings before the Labour Chamber of the Supreme Court of Justice. In this initial case, the Supreme Court upheld the ruling of the Superior Court of Cartagena and the workers were reinstated. Subsequently, ruling on a new appeal concerning other workers, the Supreme Court of Justice reversed its stance on the viability of reinstatement and overturned the court ruling, ordering that reinstatement, which was found to be impossible, be replaced by compensation. From this decision on, in its subsequent decisions, the Superior Court of Cartagena reiterated the argument that reinstatement was impossible, without taking account of the collective agreement which was in force at the time of the dismissal and which obliged the enterprise to reinstate the workers. Dismissal of the entire workforce by the enterprise violates the principle of freedom of association, since its immediate consequence is the destruction of the trade union. Moreover, the guarantees for the workers laid down in the collective agreements were terminated. This violation was committed not only by the enterprise but also by the labour courts. Lastly, the complainant adds that, when it ordered the mass lay-off of its workers, the enterprise acted in a manner contrary to the principle of good faith which informs the employment relationship, since the collective agreement in force had been signed by the trade union which accepted an increase in retirement age in exchange for an undertaking by the enterprise that it would not close down its operations during the term of the agreement, as provided in clause 178 of the collective agreement.
• Single Confederation of Workers of
• Colombia (CUT), Antioquia branch
  296. 296 In its communications of 9 June and 7 July 2000, the Single Confederation of Workers of Colombia (CUT), Antioquia branch, states that on 5 December 1991 a collective agreement was signed between the SINTRAUTO and the Sofasa?Renault Metalcol S.A. enterprise for the period from 1 August 1991 to 31 July 1993, following a 90?day strike. The complainant alleges that a few days after signing the collective agreement the enterprise requested the Ministry of Labour and Social Security for authorization to dismiss 414 workers employed under contracts for an unspecified period, which was granted and, in August 1992, over 169 contracts of employment were terminated. According to the complainant, the following week the enterprise proceeded to hire 200 workers under fixed-term contracts and subsequently recruited more workers until it had replaced 80 per cent of the former workers. The enterprise thus violated clause 12 of the collective agreement, which prohibits hiring temporary staff to perform production tasks, and clause 54, under which the enterprise undertook not to retaliate against the workers for acts related to the presentation of demands, given that it dismissed all of them.
  297. 297 The workers filed judicial proceedings for reinstatement and recognition of their entitlement to remuneration and social benefits, both under the legislation and under the collective agreement, which had accrued since the termination of their employment.
  298. 298 The complainant adds that, in January 1992, the enterprise had brought psychological pressure to bear on 245 workers who were members of the SINTRAUTO trade union to persuade them to join a voluntary retirement plan and that, as a result, there were only 320 members of the organization at the time so that, by the time the collective agreement had expired (July 1993), it was a minority trade union. The enterprise then signed a collective contract with the non-unionized workers which was without legal basis since the trade union accounted for over one-third of the total workforce of the enterprise. Moreover, pursuant to section 478 of the Labour Code, the collective agreement, not having been denounced by either of the parties, was automatically extended for a further six months. According to the complainant this means that the enterprise violated the provisions of that agreement, since it explicitly prohibited collective contracts. Lastly, the complainant states that in 1994 the trade union only had 40 members and the enterprise continued to bring pressure to bear on trade union activists and officers; in January 1995 there were three trade union officers left, who had to give in to pressure by the enterprise so that to all intents and purposes the trade union had ceased to exist. The enterprise still exists but does not have any trade union defending the workers’ interests.
• Trade Union of Public Servants of the FAVIDI
• District Housing Fund (SINTRAFAVIDI)
  299. 299 In its communications of 24 May and 8 August 2000, the Trade Union of Public Servants of the FAVIDI District Housing Fund (SINTRAFAVIDI) states that on 13 April 2000 the FAVIDI District Savings and Housing Fund was presented with demands to determine terms and conditions of employment and engage in collective bargaining pursuant to the provisions of Convention No. 151, approved by Act No. 411 of 1997 and declared enforceable (in accordance with the national Constitution) by the Constitutional Court in a ruling handed down on 27 July 1998. In a letter dated 25 April 2000, FAVIDI refused to engage in collective bargaining, alleging that “in accordance with legislation and jurisprudence … it is not possible to enter into discussions, since the SINTRAFAVIDI consists of public employees who are not allowed to present lists of demands or conclude collective agreements …”.
  300. 300 The complainant alleges further that on 29 December 1997 five members of the trade union’s executive committee were dismissed with a view to eliminating the trade union. The workers and trade union members instituted proceedings in the ordinary courts and, although three of them were reinstated, the suits of two others, Ms. Lucy Jannet Sánchez Robles and Ms. Ana Elba Quiroz de Martin, were turned down on grounds that they had not gone through the previous administrative procedure.

B. The Government’s reply

1. 301. In its communication of 19 July 2000, in reply to the complaint represented by the National Trade Union of Public Employees of the Ministry of Labour and Social Security (SINALMINTRABAJO), the Government states that, as a consequence of Decree No. 1128 of 1999, the organizational structure of the Ministry of Labour and Social Security was changed in order to adapt it to the tasks required of it in today’s world. The new staff list of the Ministry, with a total of 1,223 posts, was adopted by resolution No. 2567 of 23 December 1999. As a result of the restructuring process, 327 officials were not included in the new staff list. The Government explains that 113 of these, who were in the administrative career system, voluntarily accepted the compensation offered by the employer, 32 others requested to be included in the new staff list of this or another state body, 20 did not meet the requirements for the posts or for entitlement to a retirement pension, and 162 officials who had been recruited temporarily or by free appointment were not included. Of these 162 officials, the Ministry included 26. Ultimately, only 156 officials were not included in the staff list (and not 305 as asserted by the complainant), of whom only 32 were members of the trade union. The Government states that the restructuring process is not aimed at violating freedom of association. This is clear, states the Government, from the fact that 67 out of a total of 68 workers covered by trade union immunity were reincorporated in the staff during the restructuring process. As regards Mr. Alvaro Rojas, chairperson of the Santander executive board, he was dismissed as a result of the elimination of the post of security guard, code 5320, grade 7. He was informed that he could take up another similar post within a six-month period, and accepted this option. He was subsequently informed that he had not been included in the new staff list as it did not comprise a post that was the same or equivalent to that he had been occupying, and therefore a request was sent to the National Civil Service Commission to consider the possibility within the next six months of employing him in another body where there was the same or an equivalent post. Concerning the alleged violation of the right to collective bargaining perpetrated by the Ministry of Labour and Social Security, the Government states that the latter has sought ways of reaching agreement, receiving trade union representatives in order to follow up on the petition submitted by SINALMINTRABAJO. A number of meetings were held in the course of the year 2000. The Government states that the provisions in force concerning the right to collective bargaining do not, at the time of writing, cover public employees. It adds that Act No. 411 of 1997 approving Convention No. 151 makes its entry into force conditional on its ratification, which has not yet taken place at the time of writing. As regards the enforcement proceedings instituted by the complainants, the Government states that the court of first instance rejected them on the grounds that the arguments presented did not constitute proof of the Ministry’s unwillingness. This decision was upheld by the Council of State on 27 April 2000.
2. 302. In its communication of 7 February 2000, as regards the allegations presented by the Trade Union of Loaders of Antioquia (SINTRACOAN), the Government states that the Ministry of Labour and Social Security, through its Antioquia territorial directorate, has carried out two administrative labour inquiries in which the parties are Cervecería Unión and SINTRACOAN. It adds that, in the first, the Ministry refrained from sanctioning the Cervecería Unión S.A. enterprise for alleged violation of the right to organize. This decision was declared enforceable on 2 June 1998. As regards the second administrative inquiry, the case was closed by order of 8 June 1999, in accordance with the request of the president of SINTRACOAN. Lastly, as regards the complaint presented by the trade union to the ILO, an administrative inquiry is currently under way and is now in the evidence-gathering stage.
3. 303. As regards the complaint presented by the Colombian Association of Banking Employees (ACEB), the Government states that the Ministry of Labour and Social Security, through its Antioquia territorial directorate, issued an order dated 13 October 1999 to the effect that Banco Santander would have to negotiate the list of demands with the trade union National Union of Banking Employees (UNEB), given that the majority of banking workers who were members of the various organizations had selected the latter to represent them in the negotiations. It adds that the ACEB instituted proceedings before the tenth municipal criminal court of the Bogotá judicial district claiming protection of the right to organize, but the court rejected its claims on grounds that democratically conducted votes by all the unionized employees had determined that it would be the UNEB which would be legitimately entitled to negotiate the demands, having obtained an absolute majority (845 out of 1,216 votes). Lastly, the Government states that this decision was appealed by the ACEB but the appeal was turned down and the decision of the tenth penal court upheld.
4. 304. As regards the complaint presented by the Trade Union of Workers of Valle University Hospital (SINSPUBLIC) and the Single Confederation of Workers of Colombia (CUT), Valle branch, the Government states that the Ministry of Labour and Social Security through the inspection and monitoring unit of the Valle del Cauca territorial directorate, carried out an administrative labour inquiry instituted by the SINSPUBLIC against the Evaristo García ESP Valle University Hospital for alleged irregular labour practices consisting in denial of trade union leave to various officers of that organization, in which it did not sanction the hospital on grounds that the acts at issue did not constitute violations of the right to organize. The Government points out that this decision has not yet been declared enforceable and appeals may still be filed against it.
5. 305. In reply to the complaint presented by the National Association of Workers of Banco de la República (ANEBRE), the Government states that the organization’s complaints had been examined in a number of courts, culminating in a ruling by the Supreme Court of Justice on the appeal filed against the conviction handed down by the Bogotá Superior Court, overturning the judgement of the 19th labour court of the Bogotá circuit. The Government adds that the complainant filed tutela proceedings against the abovementioned ruling, which were rejected by the Disciplinary Chamber of the Sectional Council of the Cundinamarca judiciary on grounds that they were inadmissible; no other appeal lies against these decisions.
6. 306. In its communication of 31 January 2001, in reply to the complaint presented by the Single Confederation of Workers of Colombia (CUT), Antioquia branch, the Government states that under Colombian labour legislation (Act No. 50, section 67), the Ministry of Labour and Social Security is empowered to authorize employers to carry out collective dismissals caused by serious economic or technical changes affecting the enterprise. In the light of the above, and pursuant to a request by the Sofasa-Renault Metalcol S.A. enterprise, the Ministry of Labour and Social Security carried out a technical study, as a result of which the enterprise was authorized on 8 May 1992 to carry out a collective dismissal of its employees, subject to an upper limit of 169 workers. Appeals were launched against this decision, which were turned down in July and August 1992, thus exhausting administrative procedures. The trade union lodged an action for nullity with the Council of State against the administrative orders issued by the Ministry of Labour and Social Security, which was turned down. Concerning the dismissals of trade union officers and members, there are records of judicial and administrative conciliation procedures which state that the parties consented to the termination of the employment relationship freely and by mutual agreement. As regards violation of labour law and the collective agreement as a result of the conclusion of a collective contract, SINTRAUTO filed a complaint with the judiciary. This process culminated in a special public conciliation hearing between the parties on 21 May 1997, at which a settlement was reached with respect to all of the facts at issue in the complaint. This conciliation settlement is now binding, and no appeal lies against it. A copy of the settlement is enclosed. The Government adds that, in a letter dated 19 October 2000, the Antioquia territorial directorate certifies that no complaint is pending or any labour administrative inquiry under way against the Sofasa-Renault Metalcol S.A. enterprise.
7. 307. In its communication of 28 March 2001, in reply to the complaint presented by the trade unions SINTRABENEFICENCIAS and SINTRAFAVIDI concerning violations of Convention No. 151 with regard to the determination of terms and conditions of employment in the public administration, the Government states that, at the time the complaint was presented the abovementioned international instrument had not been deposited with the ILO and therefore it could hardly be alleged that the Government failed to observe a Convention by which it was not bound. The Convention was deposited by the Government on 8 December 2000.
8. 308. Also in its communication dated 28 March 2001, as regards the allegations presented by the General Confederation of Democratic Workers (CGTD) concerning anti-union dismissals of officers of ASEINPEC, the Government states that: (1) the Ministry of Labour and Social Security, through the Bogotá and Cundinamarca territorial directorate, is carrying out an administrative inquiry into the alleged dismissal of the trade union’s president, Mr. Juan de la Rosa Grimaldos; and (2) as regards the dismissal of ASEINPEC officers in Medellín, the Antioquia territorial Directorate of Labour and Social Security issued resolution No. 002024 of 30 November 2000 stating that it was not competent to decide on the matter at issue in the inquiry since this involved making a value judgement and interpreting labour legislation in parallel with Decree No. 407 of 1994 establishing special regulations for INPEC staff; the Government adds that no appeal has been lodged against this administrative resolution, which became enforceable on 18 January 2001.
9. 309. In its communication of 28 March 2001, the Government indicates, as regards the allegations presented by the Trade Union of Workers of the Water Supply and Sewerage Enterprise of Bogotá (SINTRACUEDUCTO), that the Ministry of Labour and Social Security launched an administrative inquiry on 27 November 2000, and that the Committee will be informed of its results.

C. The Committee’s conclusions

1. 310. The Committee notes that the complainants in this case allege the following acts: harassment and attacks by the public authorities, police intervention and occupation by the armed forces of work centres, violation of freedom of association, denial of trade union leave, violation of the right to strike, withholding of trade union dues, acts of anti-union discrimination, interference by the employer or the authorities, denial of the right to collective bargaining, restrictions on the content of collective agreements, non-observance of the collective agreement or arbitration awards, violation of the right to collective bargaining through the conclusion of collective contracts and dismissals or other anti-union measures carried out in the context of restructuring processes.
   • Violation of freedom of association
2. 311. As regards the allegations concerning the unjustified prolongation of the procedure of registering of new members of the national board, executive committee and complaints committee of the UTRADEC presented by the General Confederation of Democratic Workers (CGTD), the Committee regrets that the Government has not provided its observations in this respect. The Committee recalls that the registration of the executive boards of trade union organizations should take place automatically when reported by the trade union, and should be contested only at the request of the members of the trade union in question [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 365]. The Committee requests the Government to take the necessary measures to proceed with registration of the new members of the executive of the UTRADEC as soon as possible and to keep it informed in this respect.
   • Denial of trade union leave
3. 312. As regards unjustified denial of trade union leave in Evaristo García ESE Valle University Hospital, alleged by the Trade Union of Workers of Valle University Hospital (SINSPUBLIC), the Committee notes that the Government states that the administrative inquiry carried out determined that the acts at issue do not constitute violations of the right to organize. In this respect, the Committee recalls that Paragraph 10, subparagraph 1, of the Workers’ Representatives Recommendation, 1971 (No. 143), provides that workers’ representatives in the undertaking should be afforded the necessary time off from work for carrying out their representation functions; subparagraph 2 of the same Paragraph adds that, while workers’ representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld [see Digest, op. cit., para. 952]. The Committee requests the Government and the complainant to inform it whether a judicial appeal has been lodged against the administrative decision in question and, if so, to communicate the content of the court decision.
4. 313. As regards the allegations concerning denial of trade union leave and subsequent dismissal for having taken such leave in the Santa Fé de Bogotá administration, presented by the Trade Union of Public Employees of the Transit and Transport Secretariat of Santa Fé de Bogotá (SETT), the Committee regrets that the Government has not communicated its observations in this respect. The Committee recalls the principle mentioned in the previous paragraph concerning trade union leave, and that “no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment” [see Digest, op. cit., para 696]. The Committee requests the Government to take the necessary measures to ensure that an inquiry is carried out into these allegations and, if they are found to be true, to proceed with the immediate reinstatement of the dismissed officers.
   • Violation of the right to strike
5. 314. As regards the allegations concerning: (1) use of security forces by placing offices under military control in order to prevent the exercise of the right to strike, threats of dismissal against workers who do not return to work and detention of and attacks on officers of the National Union of Banking Employees (UNEB) in Banco Popular; and (2) attacks on and detention of officers and members of the Trade Union of Workers of the Water Supply and Sewerage Enterprise of Bogotá (SINTRACUEDUCTO) who were exercising the right to strike, the Committee regrets that the Government has not sent its observations. In this respect, the Committee recalls that “the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order” and “should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association” and “in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts” [see Digest, op. cit., paras. 53, 582 and 601]. The Committee requests the Government to take measures to ensure that the necessary inquiries are initiated immediately into all of these allegations and, in the light of the information obtained, to send its observations in this respect.
   • Withholding of trade union dues
6. 315. As regards the allegations concerning failure to transfer to the trade union the dues withheld by the Textiles Rionegro enterprise (presented by the National Union of the Textile Industry Workers (SINTRATEXTIL), Medellín branch), the Committee regrets that the Government has not sent its observations on this subject. The Committee recalls that “non-payment of trade union dues can result in serious financial difficulties for trade union organizations” [see 307th Report, Case No. 1899, para. 85]. In this context, the Committee requests the Government to take measures to ensure that the necessary inquiries are carried out and, if the allegations are found to be true, to see that the Textiles Rionegro enterprise transfers without delay to the SINTRATEXTIL the dues of its members which have been withheld. The Committee requests the Government to keep it informed in this respect.
   • Anti-union discrimination and violence
7. 316. The Committee expresses its concern at the numerous allegations concerning dismissals and other acts of discrimination against trade union officers and members. In this respect, the Committee recalls in general terms that “no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present” and that “the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association” [see Digest, op. cit, paras. 690 and 702].
8. 317. As regards the allegations of anti-union discrimination in the Cervecería Unión enterprise presented by the Trade Union of Loaders of Antioquia (SINTRACOAN) concerning: (1) dismissals of trade union officers and members; (2) denial of access to the workplace to trade union officers and members; and (3) non-recognition of the employment relationship between the employees and the enterprise, the Committee notes the Government’s observation to the effect that this complaint gave rise to an administrative inquiry which is at the evidence?gathering stage. The Committee expresses the hope that the inquiry in question will be completed in the near future and requests the Government to send its observations in the light of the inquiries carried out.
9. 318. As regards the allegations presented by the CGTD, SINTRATEXTIL, Sabaneta branch, CGTD, Antioquia branch, SINTRATEXTIL, Medellín branch, the Trade Union of Public Servants of the FAVIDI District Housing Fund (SINTRAFAVIDI) and the Trade Union of Workers of Lorencita Villegas de Santos University Children’s Hospital (SINTRAINFANTIL), concerning the following anti-union acts: (1) dismissal of the trade union officers of SINTRAYOPAL (Ms. Sandra Patricia Russi and Ms. María Librada García); (2) dismissal of a trade union officer of Arauca town hall (Ms. Gladys Padilla); (3) dismissal of nine trade union officers and members of Quintex S.A.; (4) dismissal of trade union officers and members in the municipality of Puerto Berrío (57 members, including the members of the executive committee of the Trade Union of Municipal Workers of Puerto Berrío and 32 members of the Association of Employees of the Municipality of Puerto Berrío); (5) dismissal of 34 workers of Textiles Rionegro who had peacefully and legally demanded their wages; (6) dismissal of and refusal to reinstate trade union officers Ms. Lucy Jannet Sánchez Robles and Ms. Ana Elba Quiroz de Martín of FAVIDI on grounds that the previous administrative procedure had not been exhausted; (7) application to lift the trade union immunity of eight officers of Textiles Rionegro for having demanded the workers’ wages; (8) application to lift the trade union immunity of members of the trade union executive committee of the Radial Circuito Todelar de Colombia enterprise; (9) persecution, harassment and intimidation of the trade union officers of Lorencita Villegas de Santos University Children’s Hospital by the public authorities; (10) physical attacks on the union member Claudio Fabiola Diáz Riascos by the security agents at Banco Popular; and (11) occupation by the armed forces of the Central Hospital Julio Mendez Barrencha, the Committee regrets that the Government has not sent the relevant observations. In this context, the Committee requests the Government to take the necessary measures to ensure that inquiries are initiated immediately in order to ascertain whether the allegations are true and, if the allegations of anti-union discrimination and persecution are found to be true, to take the necessary measures for such acts to cease and to remedy their consequences. The Committee requests the Government to communicate its observations in this regard.
10. 319. As regards the allegations presented by the UNEB concerning the repression (military occupation of offices, requisitioning of staff, physical attacks on trade unionists Mr. Carlos Parada and Ms. Nubia Rodríquez and attempt to detain trade unionists Ms. Ana Julia Becerra and Mr. Julio César Benjumea who were reporting on the progress of negotiations) carried out against trade union officers after a list of demands was submitted and threats to dismiss workers if they listened to the trade union officers or availed themselves of the right to organize in Citibank, the Committee regrets that the Government has not sent its observations. The Committee observes that the right of petition is a legitimate activity of trade union organizations and persons who sign such trade union petitions should not be reprimanded or punished for this type of activity [see Digest, op. cit., para. 719]. In these circumstances, the Committee requests the Government to initiate inquiries into these allegations and to communicate its observations in this respect.
11. 320. As regards the allegations presented by the CGTD concerning the dismissal of the president of the ASEINPEC, Mr. Juan José de la Rosa Grimaldos, and the dismissal of the chairperson, vice?chairperson, auditor, first, third and fifth substitute members and substitute vice?chairperson and auditor of the executive committee of ASEINPEC, Medellín branch, the Committee notes that the Government states that: (1) as regards the dismissal of Mr. Juan José de la Rosa Grimaldos, an administrative inquiry is under way; and (2) as regards the dismissal of ASEINPEC officers in Medellín, an administrative inquiry was carried out which ruled that it was not competent to decide on the subject of the inquiry. In this respect, the Committee requests the Government: (1) in the light of the information obtained in the course of the administrative inquiry under way, to communicate its observations concerning the dismissal of Mr. Juan José de la Rosa Grimaldos, president of ASEINPEC; and (2) to take the necessary measures to ensure that the competent authorities initiate an inquiry immediately into the dismissal of officers of ASEINPEC, Medellín branch, and to communicate its observations in this respect.
    • Interference by the employer
12. 321. As regards the allegations of the UNEB concerning the following acts of interference in trade union activities: (1) an attempt to prevent a vote to determine whether to hold a strike or to have recourse to an arbitration tribunal, in Banco Popular; and (2) the imposition of a compromise obliging the workers, to have recourse to an arbitration tribunal instead of a strike, in Banco Bancafé, the Committee regrets that the Government has not provided the relevant observations. The Committee recalls that “Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities” [see Digest, op. cit., para. 759] and requests the Government to initiate the relevant inquiries and to communicate its observations in this respect.
13. 322. As regards the allegations concerning non-recognition of the right of representation of several trade union organizations in Banco Santander, presented by the ACEB, the Committee observes that according to the Government: (1) the Ministry of Labour and Social Security, through its Antioquia territorial directorate, established on 13 October 1999 that, given that the UNEB was the majority organization (determined by democratic vote by 845 out of 1,216 votes), it is with this organization that the list of demands should be negotiated; (2) the ACEB instituted proceedings before the criminal courts but they were rejected on grounds that the UNEB had obtained the absolute majority by vote; and (3) the ACEB instituted tutela proceedings, which were rejected in every instance. The Committee takes note of this information.
    • Collective bargaining
    • Denial of the right to collective bargaining
14. 323. As regards the allegations concerning refusal to engage in collective bargaining in the public administration despite the entry into force of Act No. 411 of 1997 approving ILO Convention No. 151, presented by the National Trade Union of Public Employees of the Ministry of Labour and Social Security (SINALMINTRABAJO), SINTRAINFANTIL, SINSPUBLIC, the National Trade Union of Colombian Charitable Institutions (SINTRABENEFICENCIAS) and SINTRAFAVIDI, the Committee notes the Government’s reply to the allegations of SINALMINTRABAJO, SINSPUBLIC, SINTRABENEFICENCIAS and SINTRAFAVIDI to the effect that the provisions in force concerning the right to collective bargaining do not cover public servants, since Act No. 411 makes its entry into force conditional upon ratification of the Convention and since at the time the complaint was presented the instrument of ratification of Conventions Nos. 151 and 154 had not been deposited with the ILO. The Committee observes that, while some categories of public servants must have already enjoyed the right to collective bargaining under Convention No. 98, this right is recognized in general for all public servants as of the ratification of Convention No. 154 on 8 December 2000. In these circumstances, recalling that special modalities of application may be fixed with regard to collective bargaining in the public service, the Committee requests the Government to take the necessary measures to ensure that the right of public servants to collective bargaining is respected in accordance with the provisions of the Convention which has been recently ratified.
    • Restrictions on the content of collective agreements
15. 324. As regards the allegations presented by the CGTD concerning the limits imposed by the Government on the right to bargain collectively through a government document preventing the parties from agreeing on wage increases for persons receiving more than twice the statutory minimum wage, the Committee regrets that the Government has not provided its observations on the subject. In order to make an informed decision in full knowledge of the facts, the Committee requests the Government and the complainant to send a copy of the document in question.
16. 325. As regards the allegations presented by the Public employees’ Association of the Municipality of Medellín (ADEM), the Trade Union of Textile Industry Workers of the Department of Antioquia (SINTRADEPARTAMENTO), the Association of Departmental Employees of Antioquia (ADEA), the Trade Union Association of Municipal Education Workers (ASDEM), the Trade Union of Workers and Employees of Public and Autonomous Services and Decentralized Institutes of Colombia (SINTRAEMSDES) and the National Trade Union of Workers of the ISS (SINTRAISS) criticizing Act No. 549 in view of its restrictions on the right to collective bargaining: section 13 requires authorization by the territorial public corporation if bargaining involves the commitment of resources under more than one budgetary period; and section 14 lays down the obligation for the employer to denounce collective agreements on matters relating to social security, the Committee regrets that the Government has not sent observations on the subject. As regards section 13, the Committee recalls that on previous occasions when it examined similar allegations, it has emphasized that it “is aware that collective bargaining in the public sector calls for verification of the available resources in the various public bodies or undertakings, that such resources are dependent on state budgets and that the period of duration of collective agreements in the public sector does not always coincide with the duration of the State Budgetary Law – a situation which can give rise to difficulties” [see Digest, op. cit., para. 898]. The Committee therefore considers that section 13 does not violate the principles of freedom of association and collective bargaining. As regards section 14, the Committee considers that a legal provision obliging the employer to modify unilaterally the content of signed collective agreements is contrary to the principles of collective bargaining, unless authorized by such agreements. In these circumstances, the Committee requests the Government to take the necessary measures to amend the provision at issue so as to ensure that the right to free and voluntary collective bargaining is respected. In addition, the Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
17. 326. As regards the allegations presented by the Trade Union of Workers of Quibi S.A. (SINTRAQUIBI) concerning the refusal of the enterprise to grant a wage increase over a three-year period as a condition for engaging in collective bargaining, the Committee regrets that the Government has not sent its observations on this subject. The Committee recalls that “while the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement” [see Digest, op. cit., para. 817].
18. 327. As regards the allegations of the UNEB concerning the setting up of a compulsory arbitration tribunal in order to settle a collective dispute in Banco Bancafé on the order of the Ministry of Labour and Social Security, the Committee regrets that the Government has not provided the relevant observations. In this respect, recalling that recourse to compulsory arbitration in cases where the parties do not reach agreement through collective bargaining is permissible only in the context of essential services in the strict sense of the term (i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and in cases of disputes in the public service concerning public servants exercising authority in the name of the State, and bearing in mind that the workers of Banco Bancafé do not fall into either of the abovementioned categories, neither have they agreed with the enterprise on the establishment of an arbitration tribunal, the Committee requests the Government to take the necessary measures to rescind the constitution of the compulsory arbitration tribunal in Banco Bancafé in order to ensure that the will of the parties concerning the settlement of the collective dispute is respected.
    • Non-compliance with the collective
      • agreement or arbitration awards
    • 328. As regards the allegation presented by the National Association of Workers of Banco de la República (ANEBRE) concerning non?compliance with the current collective agreement (which provides for the establishment of a non-statutory benefit consisting of a special pension in the event of dismissal without just cause of a worker with over ten years’ length of service) by Banco de la República, the Committee notes the Government’s observations to the effect that the courts have turned down all of the appeals filed by ANEBRE with regard to these allegations. The Labour Chamber of the Supreme Court of Justice ruled that the parties “agreed that entitlement (to the pension) would arise when the worker reached the (age) established by the law for similar cases”. The Committee notes that this ruling and the decision rejecting tutela proceedings instituted by the ANEBRE have been declared enforceable and no other appeal lies against them.
19. 329. As regards the allegations presented by the complainants SINTRACUEDUCTO and the Colombian Association of Flight Attendants (ACAV) concerning non?compliance with the current collective agreements by the Bogotá Water Supply and Sewerage Enterprise (failure to pay the agreed wage increase, dismantling of the Ramón B. Jímeno High School, recruitment of new employees displacing former workers (non?recognition of the staff committee) and American Airlines (failure to hire Colombian employees, imposition of flight itineraries, adjustment of the basic wage and remuneration for Sundays and holidays other than that agreed upon), the Committee notes that the Government indicates that an administrative inquiry has been launched on 27 November 2000 as regards the allegations presented by the trade union SINTRACUEDUCTO. The Committee regrets that the Government has not provided its observations on the allegations submitted by the trade union ACAV. The Committee recalls that the Collective Agreements Recommendation, 1951 (No. 91), provides in Part III that “collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded” and emphasizes therefore that “agreements should be binding on the parties” and that “mutual respect for the commitment undertaken in the collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground” [see Digest, op. cit., para. 818, and Case No. 1919 (Spain), para. 325]. The Committee requests the Government to keep it informed of the results of the administrative inquiry made about the allegations of non-compliance with the collective agreement by the Bogotá Water Supply and Sewerage Enterprise and to initiate an inquiry into the alleged non-compliance with the agreement at American Airlines and, if they are found to be true, to ensure compliance with the terms of the agreements. The Committee requests the Government to keep it informed in this respect.
20. 330. As regards the allegations presented by the National Trade Union of Workers of Alcalis de Colombia Limitada, Alco Ltda. (SINTRALCALIS) concerning violation of the collective agreement by the Alcalis de Colombia Ltda. enterprise, which dismissed all the workers employed under a contract for an unspecified period, the Committee regrets that the Government has not sent its observations. The Committee observes nonetheless that, according to the information provided by the complainant, the judicial authorities have deemed it impossible to reinstate the workers owing to the liquidation of the enterprise and have ordered that compensation accordingly be paid to the dismissed workers. In these circumstances, the Committee requests the Government to take the necessary measures to ensure that the workers of Alcalis de Colombia, Alco Ltda., are paid full compensation without delay, in accordance with the ruling of the judicial authorities. The Committee requests the Government to keep it informed in this respect.
    • Violation of the right to collective bargaining
    • through the conclusion of collective contracts
21. 331. As regards the allegations of the Single Confederation of Workers of Colombia (CUT), Antioquia branch, concerning the conclusion of a collective contract with non?unionized staff, in violation of the current collective agreement, in the Sofasa?Renault Metalcol S.A. enterprise, the Committee notes with interest the Government’s observation to the effect that the parties signed a conciliation settlement in court which concludes the dispute (the Government sends a copy of this issue and that of a number of dismissals which occurred in 1992). The Committee also notes that the Government states that the Antioquia Territorial Directorate of Labour and Social Security certified on 19 October 2000 that no complaint is currently pending against the Sofasa-Renault Metalcol S.A. enterprise.
22. 332. As regards the allegations presented by SINTRATEXTIL, Medellín branch, concerning the conclusion of a collective contract granting more advantages to non?members than to the members of the trade union in the Confecciones Leonisa S.A. enterprise, the Committee regrets that the Government has not sent its observations. The Committee recalls that when it examined similar allegations in the context of a complaint presented against the Government of Colombia, it emphasized that “the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98” and “that direct negotiation with the workers must not undermine the position of the trade unions [see 324th Report, Case No. 1973 (Colombia)]. In these circumstances, the Committee requests the Government to take the necessary measures to ensure that inquiries are initiated into the case in Confecciones Leonisa S.A. and to communicate its observations on the subject.
    • Dismissals and other anti-union measures in the context of restructuring processes
23. 333. As regards the allegations presented by SINALMINTRABAJO concerning non-compliance with Presidential Directive No. 02 of 2 March 1999 (on consultation of the persons concerned in restructuring processes), in the context of the process of restructuring the Ministry of Labour and Social Security, the Committee notes that in its reply the Government does not refer to the non-compliance alleged by the complainants. In this respect, the Committee recalls that on similar occasions, when examining allegations on dismissals in the context of a restructuring process, it has emphasized “that it is important that governments consult with trade union organizations to discuss the consequences of restructuring programmes on the employment and working conditions of employees” [see Digest, op. cit., para. 937]. In these circumstances, the Committee regrets that Presidential Directive No. 02 of 2 March 1999 has not been applied and expresses the firm hope that in future the trade unions concerned will be fully consulted in restructuring processes.
24. 334. As regards the allegations presented by SINALMINTRABAJO concerning the dismissal of Mr. Alvaro Rojas, chairperson of the Santander executive committee, in the context of the restructuring process mentioned in the previous paragraph, the Committee notes the Government’s reply to the effect that Mr. Alvaro Rojas was dismissed owing to the elimination of the post which he occupied and that the necessary measures have been taken to consider the possibility of employing him in another body. In this respect, recalling the importance which it attaches to the principle that in the event of staff reductions under state restructuring programmes it is advisable to give priority to workers’ representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection [see Digest, op. cit., para. 961], the Committee requests the Government, bearing in mind Mr. Alvaro Rojas’s position as chairperson of an executive committee, to consider the possibility of his reinstatement.
25. 335. As regards the allegations presented by the Trade Union of Health Workers and Employees of Magdalena (SINTRASMAG) concerning the dismissal of workers and trade union officers of the Magdalena local government (600 workers, including the trade union officers), the Magdalena district health service (350 workers) and Julio Méndez Barreneche Central Hospital (310 workers, including nearly all of the members of the executive committee), and the filing of a complaint with the Santa Marta regional directorate over one year ago for violation of the collective agreement by Julio Méndez Barreneche Hospital, the Committee regrets that the Government has not sent its observations on the subject. The Committee reiterates the principle set forth in the previous paragraph, requests the Government to inquire whether this principle has been respected and to communicate its observations in this respect.
26. 336. As regards the allegations concerning anti-union discrimination in the restructuring processes undertaken in Banco Central Hipotecario (dismissals) and in the Magdalena local government (military control of the offices), presented by the Association of Workers of Banco Central Hipotecario (ASTRABAN) and SINTRASMAG, the Committee regrets that the Government has not sent the relevant observations. The Committee requests the Government to take measures to ensure that an inquiry is initiated and, in the light of the information obtained, to communicate its observations in this respect.