Rapport intérimaire - Rapport No. 331, Juin 2003

1. 255. The Committee last examined this case at its November 2002 meeting [see 329th Report, paras. 418-447].
2. 256. The National Union of Bank Employees (UNEB) presented new allegations in a communication dated 29 November 2002. The Trade Union Association of Employees of the National Penitentiary and Prison Institute (ASEINPEC) sent new allegations in a communication dated 20 March 2003.
3. 257. The Government sent its observations in communications dated 2, 15 and 16 January and 18 February 2003.
4. 258. 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. Previous examination of the case

1. 259. At its November 2002 meeting, the Committee formulated the following recommendations [see 329th Report, para. 447]:
   • (a) as regards the dismissal of 34 workers of Textiles Rionegro and the allegations of violation of the right to strike presented by UNEB, the Committee requests the Government to inform it without delay of the investigations carried out and any judicial measures adopted;
   • (b) as regards: (a) the denial of trade union leave and subsequent dismissal of trade union officers for having taken such leave in the Santa Fe de Bogotá administration; (b) the dismissal of trade union officers and members of the Puerto Berrio municipality; (c) the proceedings to lift trade union immunity at the Radio Difusora Profesional Ltda. – TODELAR; and (d) the persecution alleged by SINTRAINFANTIL, ASTRABAN and SINTRASMAG, the Committee requests the Government to continue keeping it informed in this respect;
   • (c) as regards the dismissal of María Librada García, the Committee requests the Government to keep it informed of the results of the administrative labour investigation initiated by the Casanare Regional Directorate for Labour and Social Security against the Yopal Town Council;
   • (d) as regards the ruling handed down on 12 August 1999 by the Superior Court of the Bogotá Judicial District revoking the reinstatement of FAVIDI leaders Lucy Janeth Sánchez and Ana Elvira Quiroz de Martín, the Committee requests the Government to transmit a copy of the revocation ruling and to inform it whether this ruling has become final and, if not, whether an appeal has been lodged against it;
   • (e) ...
   • (f) as regards the allegations submitted by ADEM on the violation of the agreement under which the Government had undertaken to reinstate the 83 workers enjoying trade union protection, and on the lack of consultations during the administrative restructuring process initiated by the Council of Medellín, the Committee requests the Government to send its observations in this respect;
   • (g) as regards the additional allegations presented by ADEM, and the allegations presented by SINTRASINTETICOS and SINTRATEXTIL, the Committee requests the Government to send its observations on the allegations without delay (these allegations are as follows:
     • the Official Employees’ Association of the Municipality of Medellín (ADEM) and the Public Employees’ Trade Union of the Municipality of Medellín (SIDEM) allege: (a) the subcontracting of new employees, deprived of the right to freedom of association, to do the work formerly done by the dismissed workers; (b) the lack of consultation in the administrative restructuring process launched by the Council of Medellín in March 2001; and (c) the mayor’s threats to punish all participants in the strike called for 6 March 2001 in response to the failure to comply with the Memorandum of Understanding;
     • the Trade Union of Workers of Sintéticos S.A. (SINTRASINTETICOS) alleges: (a) pressure and threats by the Odissey Limited enterprise to force workers to leave the union; (b) interference by the enterprise in internal union matters; (c) delays in the settlement of proceedings before tribunals relating to violation of freedom of association; (d) sanctions against trade union leaders for making use of trade union leave; and (e) the enterprise’s refusal to hold meetings for collective bargaining;
     • the National Union of Textile Industry Workers (SINTRATEXTIL) alleges: (a) in the Fabricato enterprise: (1) there is violation of the collective agreement; (2) trade union leave is denied; and (3) trade union leaders are denied access to the premises; (b) in the Enka enterprise: (1) non-fulfilment of agreements concluded between the president of the company and the trade union; (2) violation of the collective agreement through the conclusion of contracts with companies to conduct work directly covered by the collective agreement; (3) distribution of the hardest tasks to unionized workers; (c) in the Coltejer enterprise: dismissals on the grounds of restructuring, in violation of a collective agreement; and (d) in the Textiles Rionegro enterprise: (1) favouritism towards one of the enterprise trade unions to the detriment of the industry union; and (2) violation of the collective agreement);
   • (h) the Committee requests the Government to send its observations urgently in respect of the allegations of murder of trade union leaders Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García, in order that it may formulate its recommendations in full possession of the facts.

B. New allegations

1. 260. In its communication of 29 November 2002, the National Union of Bank Employees (UNEB) alleges that, having denounced the collective labour agreement, a new list of demands was submitted, but as soon as the settlement period had expired on 1 November 2002, the authorities of the Banco Popular requested a summons to the Compulsory Arbitration Court. For this reason, the workers of the Banco Popular called for a strike to take place on 3 December 2002.
2. 261. In its communication of 20 March 2003, the Trade Union Association of Employees of the National Penitentiary and Prison Institute (ASEINPEC) states: (1) in order to elect a new executive committee, members were called to a meeting, which was prohibited because of, according to the Government, the state of internal unrest throughout the country, the corresponding legal proceedings were begun but these were closed; (2) denial of appeals for protection of constitutional rights begun by the trade union organization in order to protect the trade union immunity of a number of trade union officials of ASEINPEC; (3) in spite of a judicial order ordering the return of the offices of ASEINPEC located in the central factory, the director of the National Penitentiary and Prison Institute (INPEC) gave instructions to prevent trade union officials from entering the offices, which forced the trade union to rent other premises; (4) the dismissals of many trade union officials continued and the director of INPEC indicated that it was not possible to reinstate these people, an appeal for protection of constitutional rights was lodged and this was denied by the legal authorities; and (5) other anti-union measures such as transfers and requests for transfers, moves to lift trade union immunity and disciplinary measures without due process.

C. The Government’s reply

1. 262. In its communications dated 2, 15 and 16 January and 18 February 2003, the Government states the following:
   • n Paragraph (a) of the Committee’s recommendations
   • at its November 2002 meeting
   • As regards the refusal to negotiate a new collective labour agreement and the violation of the right to strike presented by the National Union of Bank Employees (UNEB) in the previous examination of the case and in the new allegations, the Government states that it signed a collective labour agreement between UNEB and the Banco Popular.
   • n Paragraph (b) of the Committee’s recommendations
   • As regards the denial of trade union leave and subsequent dismissal of trade union officers of the Trade Union of Public Employees of the Transit and Transport Secretariat (SETT) for having taken leave, the Government states that it began an administrative labour inquiry and that the head of the Inspection and Surveillance Division of the Santa Fe de Bogotá and Cundinamarca Regional Directorate of Labour issued resolution No. 000801 of 31 March 1998 which states that no violation of labour standards was found to have been made by the Transit and Transport Secretariat of Santa Fe de Bogotá. The Government adds that legal recourse for annulment and appeal were lodged against the aforementioned resolution and that these were rejected by resolution No. 001385 of June 1998 as they did not fulfil the requirements laid down by the Code for Administrative Litigation.
   • n Paragraph (c) of the Committee’s recommendations
   • As regards the dismissal of María Librada García, the Government states that the ruling handed down by the Honourable Council of State with regard to the action for protection of constitutional rights lodged by the complainant decided to turn the file over to the Court of First Instance in order to ensure due process.
   • n Paragraph (d) of the Committee’s recommendations
   • As regards the ruling handed down on 12 August 1999 by the Superior Court of the Bogotá Judicial District revoking the reinstatement of FAVIDI leaders Lucy Janeth Sánchez and Ana Elvira Quiroz de Martín, the Government states that this ruling has become res judicata.
   • n Paragraph (f) of the Committee’s recommendations
   • As regards the allegations submitted by the Official Employees’ Association of the Municipality of Medellín (ADEM) on the violation of the agreement under which the Government had undertaken to reinstate the 83 workers enjoying trade union protection, and on the lack of consultations during the administrative restructuring process initiated by the Council of Medellín, the Government refers to its reply in July 2002 in which it states that it took careful note of the allegations and sent them to the Human Rights Office of the Ministry of Labour and Social Security.
   • n Paragraph (g) of the Committee’s recommendations
   • As regards the allegations presented by the Trade Union Association of Employees of the National Penitentiary and Prison Institute (ASEINPEC), relating to the constant threats received by trade union leaders, anti-union persecution through measures against union leaders including sanctions, disciplinary proceedings and transfers, the dismissal of union leaders in violation of trade union immunity, the suspension of trade union leaders without pay for having conducted a peaceful demonstration and pressure on members to leave the union, the Government states that the Cundinamarca Territorial Director in resolution No. 01072 of 24 July 2001 fined the National Penitentiary and Prison Institute (INPEC) the amount of 50 legal minimum wages for violation of article 405 of the Labour Code which establishes protection of trade union immunity. Moreover, the general management of INPEC issued resolution No. 02101 of 6 July 2001 accepting the decision of the Superior Court of the Judicial District of the Department of Quindío, which ordered the reinstatement of INPEC employees.
   • n Paragraph (h) of the Committee’s recommendations
   • As regards the murders of trade union leaders Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García, the Government states that in accordance with the general report of investigations carried out by the Attorney-General’s Office on violations of trade union members’ human rights, three of the investigations are in the preliminary stages and the investigation relating to the murder of Jorge Ignacio Bohada Palencia has issued a resolution of indictment against Hugo Antonio Toro Restrepo, alias Comandante Bochica, who is a fugitive from justice.

D. The Committee’s conclusions

1. 263. The Committee observes that when it analysed this case concerning acts of anti-union discrimination and harassment at its November 2002 meeting, it had requested the Government to take certain measures or communicate information in respect of these matters [see 329th Report, para. 447].
   • n Paragraph (a) of the Committee’s recommendations at its November 2002 meeting
   • The Committee notes with interest that with regard to the collective dispute between the Banco Popular and the National Union of Bank Employees (UNEB), the Government states that it has endorsed a collective agreement.
   • With regard to the dismissal of 34 workers of Textiles Rionegro, the Committee regrets to note that, in spite of the time that has passed, the Government has still not sent its observations. The Committee once again requests the Government to carry out the relevant investigations without delay, to inform it of any legal proceedings begun and to send its observations on the current situation in respect of these workers.
   • n Paragraph (b) of the Committee’s recommendations
   • As regards the denial of trade union leave and subsequent dismissal of trade union officers of the Transit and Transport Secretariat of Bogotá (SETT) for having taken trade union leave, the Committee notes the Government’s statement that an administrative labour investigation has begun and that by resolution No. 000801 of 31 March 1998 it was decided that there had been no violation of labour standards by the Transit and Transport Secretariat of Santa Fe de Bogotá; the legal recourse taken against the aforementioned resolution was defeated as it did not comply with the prerequisites laid down by the Code for Administrative Litigation in resolution No. 001385 of June 1998. The Committee regrets that, in spite of the time which has elapsed and following the examination of these allegations on two occasions, the Government has only now communicated this information to the Committee.
   • n Paragraph (c) of the Committee’s recommendations
   • As regards the dismissal of María Librada García, a trade union official of SINTRAYOPAL, the Committee notes the Government’s statement that the ruling handed down by the Honourable Council of State with regard to the action for protection of constitutional rights lodged by the complainant, decided to turn the file over to the Court of First Instance in order to ensure that due process was observed with regard to her dismissal. The Committee requests the Government to keep it informed of the outcome of the legal proceedings and hopes that these proceedings will be concluded in the near future.
   • n Paragraph (d) of the Committee’s recommendations
   • As regards the ruling handed down on 12 August 1999 by the Superior Court of the Bogotá Judicial District revoking the reinstatement of FAVIDI leaders Lucy Janeth Sánchez and Ana Elvira Quiroz de Martín, ordered by the 18th Labour Circuit Court on 30 October 1998, the Committee notes that the Government states that this ruling is res judicata. The Committee therefore understands that the parties have not lodged appeals against this ruling.
   • n Paragraph (f) of the Committee’s recommendations
   • As regards the allegations presented by the Official Employees’ Association of the Municipality of Medellín (ADEM) on the violation of the agreement under which the Government had undertaken to reinstate the 83 workers enjoying trade union protection, and on the lack of consultations during the administrative restructuring process initiated by the Council of Medellín, the Committee notes that the Government refers to a reply of July 2002 in which it states that it took careful note of the allegations and sent them to the Human Rights Office of the Ministry of Labour and Social Security. The Committee recalls that in its previous examination of the case it had noted that taking into account the nature of some of the allegations (in particular those relating to anti-union dismissals, lack of consultation in restructuring processes), the Human Rights Office would perhaps not be the proper body to deal with them and that they should be dealt with by the labour justice system. The Committee emphasizes to the Government the importance that the agreement relating to the reinstatement of the 83 workers in question is fulfilled. The Committee recalls moreover 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 of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 937].
   • n Paragraph (g) of the Committee’s recommendations
   • As regards the allegations presented by the Trade Union Association of Employees of the National Penitentiary and Prison Institute (ASEINPEC) in the previous examination of the case and the new allegations relating to: (a) the constant threats received by the union’s leaders; (b) anti-union persecution through measures against union leaders including sanctions, disciplinary proceedings and transfers; (c) the dismissal of union leaders in violation of trade union immunity; (d) the suspension of trade union leaders without pay for having conducted a peaceful demonstration; (e) pressure on members to leave the union; and (f) the refusal by the director of the National Penitentiary and Prison Institute (INPEC) to return the offices of the trade union organization, in spite of a legal ruling ordering this, the Committee notes that the Cundinamarca Territorial Director in resolution No. 01072 of 24 July 2001 fined INPEC the amount of 50 legal minimum wages and the general management of INPEC issued resolution No. 02101 of 6 July 2001 accepting the decision handed down by the Superior Court of the Judicial District of the Department of Quindío that ordered the reinstatement of INPEC employees. The Committee notes, however, that according to the new allegations presented by the complainant organization, INPEC has still not reinstated any trade union officials and continues to carry out acts of anti-union discrimination. The Committee requests the Government to ensure that INPEC complies with the legal ruling ordering the reinstatement of the trade union officials dismissed and to take the necessary steps to ensure that the offices of ASEINPEC are returned to the trade union organization without delay, complying with the ruling of the legal authority. The Committee requests the Government to keep it informed in this respect and to reply to the other allegations without delay.
   • n Paragraph (h) of the Committee’s recommendations
   • As regards the allegations of murder of trade union leaders Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García, the Committee notes the investigations begun by the Attorney-General’s Office on violations of trade union members’ human rights and that in the case of Mr. Bohada Palencia, one of the accused is a fugitive. The Committee requests the Government to take the necessary steps to ensure that these investigations will allow those responsible for these murders to be punished in the near future and to keep it informed in this respect. These questions will be dealt with further in Case No. 1787.
2. 264. As regards the other allegations presented by ADEM, the Trade Union of Workers of Sintéticos S.A. (SINTRASINTETICOS) and the National Union of Textile Industry Workers (SINTRATEXTIL), the Committee regrets once again that the Government has not sent its observations. The Committee recalls that these allegations refer in general to the violation of Conventions and agreements, the collective dismissal of trade union members and the subcontracting of other workers who do not enjoy freedom of association, and threats and sanctions against those who resort to strike action. The Committee requests, therefore, that the Government send its observations without delay so that it may formulate its conclusions in full possession of the facts.
3. 265. Finally, the Committee notes the high number of acts of anti-union discrimination alleged in this case. The Committee recalls once again, and in a general manner, 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. 748]. The Committee also recalls that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 754].