Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 334, Juin 2004

1. 361. The Committee last examined this case at its May-June 2003 meeting [see 331st Report, paras. 267-282, approved by the Governing Body at its 287th Session (June 2003)].
2. 362. The Trade Union of Workers of Antioquia Department (SINRADEPARTAMENTO) sent new allegations in a communication dated 11 November 2003.
3. 363. The Government sent its observations in communications dated June 2003, 5 and 8 September 2003 and 4 February 2004.
4. 364. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 365. At its May-June 2003 meeting, following its examination of allegations relating to acts of discrimination and persecution against trade union officials and trade unionists in various enterprises, the Committee made the following recommendations [see 331st Report, para. 282]:
   • (a) With respect to the serious allegations of violations of trade union rights at the enterprise AVINCO S.A., submitted by the organization SINTRAVI, the Committee once again strongly urges the Government to take measures to ensure that the inquiry is completed as soon as possible, that it covers all the allegations and that its results as well as the text of the arbitral award relating to the collective bargaining process are transmitted to the Committee. Concerning the five dismissed workers, the Committee requests the Government, if it is found that they were covered by trade union immunity and that there was no just cause to dismiss them, to take measures to ensure they are reinstated in their jobs, without loss of pay or benefits.
   • (b) As regards the dismissal of 13 workers from the Department of Antioquia affiliated to the complainant organization SINTRADEPARTAMENTO, the Committee once again requests the Government to conduct an investigation in this respect and, if it is found that the 13 workers were dismissed for the same reasons as the other 35 workers who were reinstated by judicial order, to take measures to promote their reinstatement and if this proves to be impossible due to the time that has elapsed, to compensate them fully.
   • (c) Concerning the allegations relating to the dismissal of Mr. Héctor Gómez from the enterprise Cementos del Nare S.A., the Committee once again requests the Government to send the texts of the final judicial and administrative decisions without delay and to indicate whether Mr. Gómez has been paid the corresponding compensation for dismissal plus an additional 12 per cent, which the Government indicated he would be entitled to under the provisions of the prevailing collective agreement, and to send the text of the collective agreement.
   • (d) With regard to the allegations submitted by the Single Confederation of Workers of Colombia (CUT), Antioquia Executive Subcommittee, and the Union of “Official” Workers and Public Employees of the General Hospital of Medellín, the Committee requests the Government to promote collective bargaining at the General Hospital of Medellín without delay and to keep it informed in this respect.

B. New allegations

1. 366. In its communication of 11 November 2003, the Trade Union of Workers of Antioquia Department (SINRADEPARTAMENTO) indicates, with respect to the Government’s statement made in the previous examination of the case that the 13 workers dismissed from the Department of Antioquia had not begun the corresponding judicial action, that on the contrary, those workers had initiated the corresponding legal proceedings before the labour courts (it attaches certificates from the courts that heard the cases).

C. The Government’s reply

1. 367. In its communications the Government indicates that, with respect to the serious allegations of violations of trade union rights at the enterprise AVINCO S.A. submitted by the organization SINTRAVI, the Territorial Directorate of Antioquia initiated an inquiry and by way of resolution No. 1868 of 20 August 2003 determined that the Ministry of Social Protection was not competent to settle the inquiry as, according to the resolution "in conformity with the repeated declarations of the Council of State, in view of the clear and definite division of power between administrative officials and the ordinary courts, administrative officials are also forbidden from defining disputes, declaring rights and issuing value judgements in the case under examination, and neither can the office inquire into the internal reasoning of the employer to find out whether the dismissal occurred in order to impede freedom of association" (the Government attaches a copy of the resolution). With regard to the process of collective bargaining at the enterprise, the Government sends a copy of the arbitral award issued on 27 November 2001. As to the dismissal of the five trade union officials, the High Court of Medellín decided, in a ruling dated 27 February 2003, that the status of trade union officials held by the dismissed workers was not accredited and therefore revoked the ruling of first instance that had ordered their reinstatement (the Government attaches a copy of the ruling).
2. 368. With respect to the dismissal of 13 workers from the Department of Antioquia affiliated to the complainant organization the Trade Union of Workers of Antioquia Department (SINTRADEPARTAMENTO), the Government states that the workers dismissed in the Department of Antioquia did not exhaust government channels, as they were public employees and not official workers, which is why the request they submitted to the labour authority for reinstatement was unsuccessful. The Government indicates that they also had recourse to administrative jurisdiction, lodging an action for annulment that was unsuccessful.
3. 369. With respect to the allegations concerning the dismissal of Mr. Héctor de Jesús Gómez from the enterprise Cementos del Nare S.A., the Government sends a copy of all the administrative and judicial decisions relating to the case. A reading of those decisions shows that, in accordance with clause 13 of the collective agreement in force at the time, following the dismissal of Mr. Gómez, the trade union requested the enterprise to convene the dismissals committee. That committee, made up of arbitrators chosen by the trade union and the enterprise in accordance with the mentioned clause of the collective agreement, decided in an arbitral award dated 24 August 1995 that "the enterprise Cementos del Nare S.A. should reinstate Mr. Héctor de Jesús Gómez ... and pay him any unpaid wages until he is effectively reinstated". In accordance with clause 13 of the collective agreement, "if the committee decides by majority to reinstate or keep the worker in employment, the company can insist on its decision to dismiss and, in that case, it shall pay the worker the corresponding compensation plus 12 per cent". Clause 13, No. 5, provides that "the decisions of the committee, with the exception of the power conferred on the enterprise, to insist on the dismissal, are final and obligatory, as they are the result of conciliation between the parties, which have expressly resolved to submit this type of dispute to the arbitration stipulated in this clause and in so doing have renounced judicial channels".
4. 370. Article 139 of the Code of Labour Procedure establishes that "when in a collective agreement, the parties stipulate the establishment of tribunals and committees of arbitration of a permanent nature, the terms of the agreement shall be adhered to in everything related to their establishment, competence and procedure deciding any corresponding disputes, and only where there is no special provision will the provisions of this chapter be applied".
5. 371. The Government adds that the enterprise went to the High Court of Medellín to appeal the arbitral award and that Court, in a ruling dated 1 November 1995, after analysing whether the committee had been properly established, concluded "that the tribunal (dismissals committee) having decided by a majority that the dismissal of the worker Héctor de Jesús Gómez was unjust, strictly speaking did not examine the facts properly as maintained by the applicant as the decision was duly justified, but with its decision it affected the power conferred on the employer to dismiss a worker when there is just cause. According to the provisions of article 142 of the Code of Labour Procedure, disregard for that power renders the arbitral award null and void. On the basis of the grounds presented in this ruling, it is declared that the dismissal of the worker Héctor de Jesús Gómez was for just cause ...". For the reasons given, the High Court of Medellín, Third Chamber for Decisions on Labour Issues, administering justice on behalf of the Republic of Colombia and by the authority of the law, annuls the arbitral award issued on 24 August 1995 by the arbitration tribunal convened in these proceedings and instead declares that there was just cause for the dismissal of the worker Héctor de Jesús Gómez.

D. The Committee’s conclusions

1. 372. With regard to the allegations of violations of trade union rights at the enterprise AVINCO S.A. submitted by the National Trade Union of Workers of AVINCO S.A. (SINTRAVI) (the dismissal of five workers covered by trade union immunity after they had formed a trade union organization at the company AVINCO S.A.; pressure put on workers to conclude a collective agreement bypassing the trade union and the subsequent withdrawal of non-statutory benefits from unionized workers; pressure put on workers to make them leave the union; and intransigence by the company in refusing to negotiate a list of demands [see 329th Report, para. 466]), the Committee highlights the seriousness of the allegations and notes the Government’s information that the Territorial Directorate of Antioquia initiated an inquiry and by way of resolution No. 1868 of 20 August 2003 determined that the Ministry of Social Protection was not competent to settle the inquiry (the Government attaches a copy of the resolution).
2. 373. The Committee deplores that, despite the time that has passed since these allegations were presented in August 2000, all the Ministry of Social Protection has done is initiate an inquiry and issue a resolution stating that the matter falls outside its area of competence, and this only recently, in August 2003. The Ministry based its resolution on the division of powers between administrative officials and the ordinary courts. The Committee recalls that in its previous examinations of the case it has limited itself to requesting that an inquiry be conducted to determine whether the alleged facts occurred or not so that the Committee could formulate its conclusions in that respect. It emphasizes that in its previous examinations of the case it did not request the application of sanctions nor for disputes to be defined or rights declared, contrary to the interpretation of the Ministry of Social Protection as contained in resolution No. 1868. This being the case, the Committee once again urges the Government to conduct an inquiry into the alleged facts and, depending on the conclusions reached by the inquiry, to state which legal channels the trade union can use to protect its rights. The Committee requests the Government to take the necessary measures to adapt the legislation and the legal procedures into conformity with Conventions Nos. 87 and 98. The Committee requests the Government to keep it informed in this respect.
3. 374. As to the allegation concerning intransigence by the company in refusing to negotiate, the Committee notes with interest that the Government has sent a copy of the arbitral award issued on 27 November 2001 in the framework of the collective bargaining procedure.
4. 375. Concerning the alleged dismissal of five trade union officials, the Committee notes that, according to the Government, the High Court of Medellín decided, in a ruling dated 27 February 2003, that the status of trade union officials held by those dismissed was not accredited and therefore revoked the ruling of first instance that had ordered their reinstatement (the Government attaches a copy of the ruling). The Committee will therefore not pursue the examination of these allegations unless the complainant organization SINTRAVI provides accreditation for the status of trade union officials of the dismissed workers.
5. 376. Concerning the allegations relating to the dismissal of 13 workers from the Department of Antioquia affiliated to the complainant organization the Trade Union of Workers of Antioquia Department (SINTRADEPARTAMENTO) (the Government had stated that of the 48 workers who had been dismissed initially, 35 workers were reinstated by judicial order and the other 13 did not submit judicial appeals), the Committee observes that the Government only indicates that the workers dismissed from the Department of Antioquia had not exhausted government channels, as they were public employees and not official workers, which is why the request they submitted to the labour authority for reinstatement was unsuccessful, and that they also had recourse to administrative jurisdiction, lodging an action for annulment that was unsuccessful. While it notes these decisions based on procedural regulations, the Committee recalls that in previous examinations of the case it had requested the Government to conduct an inquiry into the dismissal of these 13 workers and, if it was found that they were dismissed for the same reasons as the other 35 workers who were reinstated by judicial order, to take measures to promote the reinstatement of these 13 workers and, if that proved to be impossible due to the time that had elapsed, to compensate them fully. The Committee observes that the Government has sent no information in this respect. It therefore firmly repeats the recommendation it made in the previous examination of the case.
6. 377. With respect to the dismissal of Mr. Héctor de Jesús Gómez, former trade union official and trade unionist of the Trade Union of Workers of "Cementos del Nare S.A." (SINTRACENARE), on 25 May 1995, the Committee recalls that, in the framework of that dismissal and in accordance with clause 13 of the collective agreement, the trade union organization requested the enterprise to set up a dismissals committee, which it did on 18 August 1995, and the committee declared the dismissal of Mr. Gómez to be unjust and ordered his reinstatement, together with the payment of the wages and benefits he had failed to receive [see 329th Report, para. 454]. The Committee observes that clause 13 of the collective agreement left the employer the possibility of insisting on the dismissal but having to pay the corresponding compensation plus 12 per cent. Clause 13, No. 5, provided that the decisions of the dismissals committee could not be appealed against. The Committee observes that, in spite of this, the enterprise lodged an appeal against the arbitral award, citing article 141 of the Code of Labour Procedure (CPL), with the Labour Division of the High Court of Medellín.
7. 378. The Committee likewise notes that article 139 of the CPL gives the parties to collective agreements the power to determine the method of establishment, the competence and the procedures of the committees and tribunals set up under such agreements. In this respect, the Committee observes that the collective agreement could stipulate, and does in clause 13, No. 5, that the decisions of the dismissals committee could not be appealed against. The Committee notes that the enterprise did not comply with the provisions of clause 13, No. 5, of the collective agreement by lodging an appeal with the Labour Division of the High Court of Medellín, and refusing to recognize the ruling of the dismissals committee that provided for the reinstatement of the worker (leaving open the possibility for the enterprise - as per the collective agreement - to insist on its decision to dismiss and in that case to pay the worker the corresponding compensation plus 12 per cent). This being the case, the Committee requests the Government to take the necessary measures to ensure that the enterprise fully complies with article 13 of the collective agreement and pays Mr. Héctor de Jesús Gómez the compensation stipulated in the collective agreement and to keep it informed in this respect.
8. 379. With regard to the allegations submitted by the Single Confederation of Workers of Colombia (CUT), Antioquia Executive Subcommittee, and the Union of "Official" Workers and Public Employees of the General Hospital of Medellín, concerning the refusal to bargain the Committee observes that the Government has not sent its observations on the subject. The Committee requests the Government to promote collective bargaining at the General Hospital of Medellín without delay and to keep it informed in this respect.