Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 336, Mars 2005

1. 327. The Committee last examined this case at its June 2004 meeting [see 334th Report, paras. 381 to 396]. The National Union of Workers in the Weaving, Textiles and Clothing Industry (SINALTRADIHITEXCO) sent new allegations in a communication dated 9 July 2004 and the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) in a communication dated 12 August 2004.
2. 328. The Government sent its observations in communications dated 1 and 9 September 2004, 24 January and 15 February 2005.
3. 329. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 330. In its previous examination of the case, the Committee made the following interim recommendations [see 334th Report, para. 396]:
   • (a) With regard to the dismissal of more than 100 workers at the Tejidos El Cóndor S.A company who were members of the National Union of Workers in the Weaving, Textiles and Clothing Industry (SINALTRADIHITEXCO), and the subsequent hiring, through cooperatives for collaborative work, of workers who, according to the allegations, do not have the right to freedom of association or collective bargaining, the Committee requests the Government to: (1) send a copy of the decision of the Constitutional Court; (2) inform it whether the workers of cooperatives in general, and in the specific case of COOTEXCON and Gente Activa, can establish their own organizations in order to defend their interests or join a branch trade union; and (3) send a copy of the statutes of the two cooperatives, COOTEXCON and Gente Activa, as well as a copy of all the legislative provisions on cooperatives.
   • (b) With regard to the allegations presented by the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) relating to the dismissal of Carlos Mario Cadavid and the suspension of trade union official José Angel López, the Committee requests the Government to take steps to ensure that an independent investigation is carried out to determine whether the dismissal and the suspension were the result of these workers’ trade union activities and, if this is the case, that it take steps to ensure that Mr. Cadavid is reinstated with payment of the wages and benefits owing to him and that the suspension of Mr. López is revoked and that he receives any unpaid wages and benefits that are owing to him. 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.
   • (c) With regard to the serious allegations presented by the World Federation of Trade Unions (WFTU) relating to the forced signing of a collective agreement with workers at the GM Colmotores company, including both members and non-members of the trade union, which implied the automatic resignation from the trade union of a high percentage of workers belonging to the National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-metals and Related Industries (SINTRAIME), the Committee requests the Government to send its observations without delay.

B. New allegations

1. 331. The National Union of Workers in the Weaving, Textiles and Clothing Industry (SINALTRADIHITEXCO) states that in August 2002 the companies Tejicondor S.A. and Fabricato S.A. merged, and that the merged company currently has more than 3,000 workers employed through associated labour cooperatives. It adds that the new company unilaterally annulled the collective agreement signed by Fabricato S.A. revoking the economic rights of workers which had previously been recognized. The complainant also states that the company has refused to grant trade union leave or to take part in collective bargaining concerning the list of claims presented on 11 June 2003, and that the Ministry for Social Protection has not convened the Arbitration Tribunal requested by the complainant on 16 June 2003.
2. 332. Lastly, the complainant reports the murder of Mr. Luis Alberto Toro Colorado, a member of the national executive committee of SINALTRADIHITEXCO.
3. 333. In its communication of 12 August 2004, the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) states that the investigation carried out by the Government to comply with the recommendations made by the Committee in its previous examination of the case was insufficient, since it was limited to statements being taken from two company witnesses and the workers who had made the complaint. The investigating body then declared the matter to fall outside its competence. The complainant states that it has lodged an appeal against this declaration of incompetence.

C. The Government’s reply

1. 334. Regarding the dismissal of more than 100 workers belonging to SINALTRADIHITEXCO from Tejicondor S.A., and the subsequent contracting of workers through associated labour cooperatives (COOTEXCON and Gente Activa), the Government states that the Constitutional Court overturned the verdicts given by the Third Civil Municipal Court and the Tenth Civil Court of the Medellín Circuit as a result of the writs of protection presented against Tejidos el Cóndor, S.A. (Tejicondor S.A.).
2. 335. With regard to whether workers in cooperatives in general, and in particular in the case of COOTEXCON and Gente Activa, can form their own organizations in order to defend their interests or join a trade union, the Government states that within cooperatives, in accordance with their nature, philosophy and legal regulation (Act No. 79 of 1988), the members exercise their constitutional right to freedom of association by forming their own cooperative or by joining a cooperative, in complete freedom, and enjoying the same rights as other members. As members, they are the cooperative’s only bosses, for which reason they deal with administration, supervision and ensuring the future and development of the cooperative, and form its administrative body, elected by its members. Cooperatives in Colombia have their own established organization to defend their rights and interests, known as the National Confederation of Cooperatives (CONFECOOP).
3. 336. The Government adds that, in accordance with the decision of the Constitutional Court contained in verdict No. C-211 of 2000, no superior-subordinate relationship exists between cooperatives and their members, since a member, by their nature, is not a worker dependent on the institution. Consequently, the concept of a contract of employment, which is essential in order for a trade union to exist, as laid down in law, does not exist in cooperatives. From this it can be deduced, with perfect clarity, that only employees and persons classed as workers as defined in section 22 of the Substantive Labour Code are entitled to form trade unions. Other persons engaged in activities not stemming from a contract of employment may form other types of association, as laid down by article 38 of the Constitution. Consequently, being an employee or worker, as defined in article 39 of the Constitution and sections 353 and 356 of the Substantive Labour Code, is an essential prerequisite for forming a trade union.
4. 337. Regarding the Committee’s request that a copy of the statutes of the two cooperatives concerned as well as a copy of “all the legislative provisions on cooperatives” be sent, the Government does not follow-up on this, and wishes to make clear that this is not in order to avoid a debate on the issue, but rather because it considers that it falls beyond the mandate of the Committee to study the legislation and practice of the cooperative movement, the principal characteristic of which is that its members, by their nature, are not united by an employment relationship. The Government therefore questions the usefulness of requesting documents which have nothing to do with matters relating to freedom of association, since labour cooperatives are self-help, non-profit-making organizations.
5. 338. With regard to the allegations relative to the assassination of Luis Alberto Toro Colorado, member of the national executive committee of SINALTRADIHITEXCO, the Government indicates that the Attorney General’s Office instituted a preliminary investigation assigned to the 5th public prosecutor of the Bello district (file No. 138833) which is currently at the collection-of-evidence stage.
6. 339. With regard to the new allegations presented by SINALTRADIHITEXCO, in relation to the refusal of the Tejicondor S.A. company to grant trade union leave, the Government states that, by resolution No. 3097 of 3 December 2003, a fine equivalent to five monthly minimum wages was given to the company for violating the right to organize, but this resolution was overturned on appeal due to lack of sufficient proof to substantiate the allegations thus leaving the parties free to have recourse to the courts.
7. 340. With regard to the allegations relative to the refusal to negotiate a list of claims, the Government states that, by resolution No. 2854 of 10 November 2003, the company was exonerated of the accusations because SINALTRADIHITEXCO had become a minority trade union as a result of the merger between Tejicondor S.A. and Fabricato in 2002. An appeal was lodged against this resolution and the parties were left free to have recourse to the ordinary courts by resolution No. 3253 of 1 December 2004.
8. 341. With regard to the allegations made by SINTRAVIDRICOL concerning the dismissal of Mr. Carlos Mario Cadavid and the suspension of union official Mr. José Angel López, the Government states that the Territorial Directorate of Antioquia of the Ministry of Social Protection began an administrative labour investigation into Cristalería Peldar S.A., Envigado factory, and issued resolution No. 01797, dated 22 July 2004, which established that the matter did not fall within the competence of the Ministry, bearing in mind that in the present case, which concerns a disciplinary action against a union official and the dismissal of a union member, it is important to recall one of the verdicts of the Upper Tribunal of MedellRn, Labour Division, which stated on this subject: “Within the powers of subordination that an employer has is the right to give orders and impose regulations and sanctions on its employees. This includes specifically the opportunity to bring disciplinary proceedings which may end in sanctions or dismissals; in this case, the workers concerned have the option of taking their case to the ordinary labour courts where, following further detailed examination, a judge will decide whether or not the actions taken were justified in law.” The Government states that, with regard to the aforementioned resolution, procedures for the case to be reheard and appeals procedures have been brought by both the company and the union, and that, once a verdict has been given, a copy of it will be provided. The Government adds that, given the above, it is up to the workers to begin proceedings through the ordinary courts.
9. 342. The Government further states that, according to information received from Cristalería Peldar S.A., Envigado factory, the allegations of violations of the right to freedom of association were made by the local committee for Envigado, and not by the National Executive Committee. In response to these allegations, the company claims that the measures taken by the company do not represent a company policy of violating the right to freedom of association, but rather that the isolated cases of these two workers are being made to appear as violations of freedom of association by the local committee for Envigado, and that in reality they are nothing more than simple differences in administrative criteria between the company and the said local committee in the face of disciplinary measures taken at the Envigado factory. Such conflicts are common in worker-employer relations when workers fail to comply with their obligations in carrying out their contractual duties.
10. 343. In the case of Mr. Carlos Mario Cadavid, the termination of contract without just cause with payment of damages was due to the fact that this individual, by means of his constant speeches, hindered and even on occasion prevented other workers from exercising their free right to attend open dialogue meetings organized periodically by the company to pass on information on various important aspects of the company’s development, meetings which were also held with the union as established in section 7 of the collective agreement in force, which lays down that every six months the company chairman shall hold a meeting with SINTRAVIDRICOL in order to discuss and resolve problems which have not been solved at labour relations meetings and in order for the management to pass on information on important aspects of the company’s development, among which is the quality assurance process. These meetings are called one month in advance to allow SINTRAVIDRICOL to send, in the 15 days before the meeting, a list of the issues it intends to discuss.
11. 344. The conduct on more than one occasion of this worker was annoying and worrying for his colleagues, who complained of his attitude to their supervisors but, for fear of reprisals, would not support their complaints with written statements or give evidence before a judge or inspector concerning the issue. Thus, given the difficulty of obtaining evidence which would lead to disciplinary proceedings to terminate his contract of employment with just cause, the company decided to dismiss him without just cause with payment of damages as laid down in the collective agreement, which exceed the legal minimum established in the Substantive Labour Code by between 1 and 100 per cent.
12. 345. In the case of Mr. José Angel López, this union official decided on one occasion that workers would not sign an attendance list, which the company must maintain for the purposes of monitoring and testing by the bodies which certify the quality of its products, at a training course being provided for a group of workers, which included Mr. López, because the attendance list being used contained a general observation that the hours involved would be counted as hours of training. Colombian law lays down that employers with more than 50 employees working 48 hours in the week shall be obliged to ensure that those employees have the right to spend two hours of the working week, to be counted as employer’s time, engaged in training, cultural, sporting or recreational activities.
13. 346. Mr. López berated the other workers attending the course, demanding that they did not sign the attendance sheet or attend the remaining sessions of the training course. When this happened, the director of personnel came to the room where the course was being held and spoke to Mr. López, drawing his attention to the fact that if he had any complaints about the attendance list he should make them through the proper channels, such as at the labour relations meetings between company and union held every fortnight in accordance with the collective agreement in force, or directly through the personnel office as convenient. Mr. López’s reaction was to tear up the attendance list which the other workers attending the course had already signed and, as a result, the company decided to proceed with the disciplinary action provided for in the collective agreement, and so held three suspension hearings at which the union official in question was present, accompanied by two SINTRAVIDRICOL representatives, following which the company considered that the employee’s actions should be punished to ensure that, in the future, it would be understood that the proper channels should be used to make any complaints.
14. 347. According to the Government, the company adds that relations between Cristalería Peldar S.A. and the union have for many years been based on mutual respect and open dialogue, and the company hopes that these relations will continue with the peace of mind which comes from knowing that conceptual differences which may arise between the two sides will be resolved with maturity and dignity. Proof of this is the minute made on 8 January 2004, which describes the satisfactory end to the negotiations concerning the collective labour dispute which arose when a list of claims was submitted to Cristalería Peldar S.A. by SINTRAVIDRICOL on 11 November 2003. A new collective agreement was signed by Cristalería Peldar S.A. and its employees on 19 January 2004, applicable from 21 November 2003 to 20 November 2005.
15. 348. With regard to the allegations presented by the WFTU concerning the forced signing of a collective agreement with member and non-member workers at GM Colmotores, which implied the automatic resignation of a high percentage of SINTRAIME workers, the Government states that, according to information provided by the company, GM Colmotores has never entered into irregular, much less illegal, contracts, given that domestic legislation (in addition to various international laws) views the concept of an associated labour cooperative as a legal and valid means of contracting workers. According to the Government, the company explains that no worker directly employed by the company has been replaced by a cooperative contractual relationship, since the aim of contracts with cooperatives is completely at variance with the social objectives of GM Colmotores and that the tasks assigned are not carried out by directly employed workers.
16. 349. The company thus denies the existence of a policy of liquidating the trade union through the use of different types of contract, since the company, acting within the law, has employed its workers using employment contracts, both permanent and fixed-term, and this does not threaten the free exercise of trade union rights, as the duration of a contract of employment does not prevent membership of a trade union, since this is clearly established as a fundamental right in article 39 of the Constitution, developed in section 353 of the Substantive Labour Code, subrogated by section 38 of Act No. 50 of 1990, and modified by section 1 of Act No. 584 of 2000, and at international level in ILO Convention No. 87, which concludes that the essential prerequisite for belonging to a trade union is to be qualified as a worker and obviously to have the free will to join. Furthermore, the Constitutional Court has ratified the validity and legality of associated labour cooperatives and, consequently, the cooperative system of associated labour is equally legal.
17. 350. With regard to the allegations of blackmail and deception in dismissing staff, the Government states that, according to the company, the dismissals took place voluntarily and with no pressure. The Government adds that, according to the points made in these allegations, the regional directorate of Cundinamarca initiated the appropriate administrative labour investigation which has yet to deliver a verdict and that, once a decision has been made, a copy of the resolution will be provided.
18. 351. In respect of the application of the collective agreement to non-affiliated workers, the Government states that the company has reported that the non-affiliated workers negotiated and signed a collective labour accord (pacto colectivo), a concept provided for in domestic labour legislation in section 481 of the Substantive Labour Code. The Government also indicates that all conventional assistance and benefits were paid by the company while the accord was in force. Finally, the Government states that the company denies any direct or indirect responsibility for the weakening of the trade union, since, in the company’s view, such weakening is due to internal conflicts between different officials and members which have been developing ever since the union based at GM Colmotores decided to merge with the branch union SINTRAIME.

D. The Committee’s conclusions

1. 352. Regarding the dismissal of more than 100 workers belonging to SINALTRADIHITEXCO from Tejicondor S.A., and the subsequent contracting of workers through associated labour cooperatives, who, according to the complainants, do not enjoy the rights to freedom of association and collective bargaining, the Committee recalls that in its previous examination of the case it requested the Government to: (1) send a copy of the decision of the Constitutional Court revoking the reinstatement orders given as a result of the writs of protection presented; (2) inform it whether the workers of cooperatives in general, and in the specific case of COOTEXCON and Gente Activa, can establish their own organizations in order to defend their interests or join a branch trade union; and (3) send a copy of the statutes of the two cooperatives, COOTEXCON and Gente Activa, as well as a copy of all the legislative provisions on cooperatives.
2. 353. The Committee regrets that the Government has not yet sent a copy of the requested verdict of the Constitutional Court and requests it to do so without delay. With regard to the right of workers in cooperatives to establish their own organizations in order to defend their interests or join a branch trade union, the Committee notes that, according to the Government, because of the nature of cooperatives, in which the dependent relationship characteristic of a contract of employment and essential for the establishment of a trade union does not exist, workers who belong to a cooperative may not establish or join a trade union, which has not prevented cooperatives from forming an organization known as the National Confederation of Cooperatives (CONFECOOP) with the aim of defending the interests of cooperatives. The Committee also regrets to observe that the Government has refused to send the legislation on cooperatives and the statutes of the cooperatives COOTEXCON and Gente Activa which it requested in its previous examination of the case. In this regard, although it realizes that cooperatives represent one particular way of organizing production methods, the Committee cannot cease consideration of the special situation of workers with regard to cooperatives, in particular as concerns the protection of their labour interests. The Committee deeply regrets this situation and considers that such workers should enjoy the right to join or form trade unions in order to defend those interests. It requests the Government to take the appropriate steps to guarantee full respect for freedom of association. The Committee reminds the Government that the technical assistance of the Office is at its disposal.
3. 354. With regard to the allegations made by SINTRAVIDRICOL concerning the dismissal of Mr. Carlos Mario Cadavid and the suspension of union official Mr. José Angel López, the Committee in its previous examination of the case requested the Government to take steps to ensure that an independent investigation be carried out to determine whether the dismissal of Mr. Cadavid and the suspension of Mr. López were the result of their trade union activities and, if so, to take steps to ensure that Mr. Cadavid be reinstated without delay with payment of the wages and benefits owing to him, that the suspension of Mr. López be revoked and that he receive any unpaid wages and benefits that were owing to him. The Committee notes that the complainant has stated that the investigation carried out by the Ministry of Social Protection was insufficient and resulted in a declaration of lack of jurisdiction, against which an appeal has been lodged.
4. 355. The Committee further notes that the Government reports that, according to Cristalería Peldar S.A., the measures taken were not the result of the trade union activities of Mr. Cadavid and Mr. López, but of their repeated poor conduct. In fact, Mr. Cadavid was dismissed following a disciplinary procedure for incessantly interrupting labour meetings and Mr. López was suspended for refusing to hand over the attendance list for a training course held during working hours. The Committee observes that there is a discrepancy between the allegations presented by the complainant and the Government’s statement as regards the reasons for the measures being taken (in the previous examination of the case, the complainant alleged that Mr. Cadavid was dismissed for attending a trade union course and that Mr. López was punished for refusing to sign and retaining an attendance list in protest at being obliged to attend a training course outside working hours). The Committee notes that the Administrative Tribunal has declared that the matter does not fall within its jurisdiction and that therefore it has not investigated the true reasons for the dismissal. The Committee notes however that both the company and the complainant have appealed this decision. Consequently, the Committee urges the Government to take the appropriate measures without delay to ensure that these appeals are resolved and to keep it informed of the results of the appeals and of any other legal action which may be brought in this regard.
5. 356. With regard to the serious allegations presented by the WFTU concerning the forced signing of a collective accord (pacto colectivo) with member and non-member workers at GM Colomotores, which implied the automatic resignation of a high percentage of National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-metals and Related Industries (SINTRAIME) workers, the Committee notes the Government’s statement that, according to GM Colomotores, the non-affiliated workers signed a collective accord permitted in law, which did not prevent the company from fulfilling all its conventional obligations. The Committee further notes the Government’s statement that, with regard to these matters, the regional management of Cundinamarca has launched an administrative labour investigation and that a copy of its decision will be provided. With regard to the signing of collective accords, the Committee recalls that, in examining similar allegations presented in other complaints against the Government of Colombia, it underlined “that the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98 and that collective accords should not be used to undermine the position of the trade unions” [see 324th Report, Case No. 1973, 325th Report, Case No. 2068 and 332nd Report, Case No. 2046 (Colombia)]. The Committee requests the Government to take the necessary measures to ensure that workers are not pressured into accepting against their will a collective accord which implies resignation from a trade union and to keep it informed of the result of the investigation launched by the regional directorate of Cundinamarca.
6. 357. With regard to the allegations concerning the murder of Mr. Luis Alberto Toro Colorado, a member of the national executive committee of SINALTRADIHITEXCO, the Committee notes the information submitted by the Government, according to which the Attorney General’s Office instituted a preliminary investigation assigned to the 5th public prosecutor of the Bello district (Case No. 138833), which is currently at the stage of collection of evidence. The Committee requests the Government to keep it informed of the result of this investigation.
7. 358. With regard to the new allegations made by SINALTRADIHITEXCO concerning the unilateral annulment by Tejicondor S.A. which merged with Fabricato S.A. of a collective agreement signed by Fabricato S.A., the refusal to grant trade union leave or to convene the Arbitration Tribunal requested by the complainant in June 2003, the Committee takes note of the information provided by the Government according to which a fine equivalent to five monthly minimum wages was given to the company for violating the right to organize, but this resolution was overturned on appeal due to lack of sufficient proof to substantiate the allegations, thus leaving the parties free to have recourse to the courts. With regard to the allegations relative to the refusal to negotiate a list of claims, the Committee notes that, by resolution No. 2854 of 10 November 2003, the company was exonerated of the accusations because SINALTRADIHITEXCO had become a minority trade union as a result of the merger between Tejicondor S.A. and Fabricato S.A. in 2002. An appeal was lodged against this resolution and the parties were left free to have recourse to the ordinary courts by resolution No. 3253 of 1 December 2004. The Committee recalls that agreements should be binding on the parties [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 818] and that, in accordance with Paragraph 10 of the Workers’ Representatives Recommendation, 1971 (No. 143), workers representatives should be afforded the necessary time for carrying out their representation functions and 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 urges the Government to ensure respect for these principles and requests the Government to keep it informed of any legal action taken in this respect.