Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 353, Mars 2009

1. 544. The Committee last examined this case at its March 2008 session and submitted an interim report to the Governing Body [see 349th Report, paras 703–745, approved by the Governing Body at its 301st Session].
2. 545. The Government sent its observations in a communication dated 29 May 2008.
3. 546. 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. 547. In its previous examination of the case, the Committee made the following recommendations [see 349th Report, para. 745]:
   • (a) with regard to the alleged refusal by the labour inspectorate to register SINTRAONG’S, the Committee requests the Government to take the necessary measures to register it without delay and to keep it informed in that respect and invites SINTRAONG’S organization to ensure that it respects the legal and statutory provisions with regard to the procedure for electing a steering committee;
   • (b) ...
   • (c) ...
   • (d) with regard to the allegations presented by SINTRAUSTA regarding legal action to reinstate workers under union protection, the Committee requests the complainants to specify how many workers were dismissed and to provide their names and the circumstances in which this occurred, in order to be able to examine the allegation in full knowledge of the facts; and
   • (e) with regard to the allegations presented by the Union of Employees in the University of Medellín regarding anti-union interference by insisting on a list of candidates for the steering committee, the dismissal of Ms Dorelly Salazar for reporting it, pressure and threats of dismissal which led to 29 workers leaving the trade union, forbidding teaching staff to join a union, the dismissal without just cause of Norella Jaramillo, Ulda Mery Castro, Carlos Mario Restrepo and Julieta Ríos in March 2001, as well as the later dismissal of two more workers (Messrs Wilman Alberto Ospina and Jesús Alberto Munera Betancourt) following their membership, and the repeated violation of the collective agreement signed in 2004; taking account of the seriousness of these allegations, the Committee requests the Government to carry out an investigation without delay into all reported acts and, if they are found to be true, to take the necessary measures without delay to reinstate the dismissed workers. The Committee requests the Government to keep it informed in that respect.

B. The Government’s reply

1. 548. In its communication of 29 May 2008, the Government sent the following observations.
2. 549. As regards subparagraph (a) of the recommendations concerning the registration of SINTRAONG’S, the Government points out that given that the trade union organization has exhausted the government channels for registration, it could bring the matter before the court competent for reviewing decisions handed down by the administration, in this case by the Ministry of Social Protection.
3. 550. The Government adds that the present case was brought before the Special Committee on the Handling of Conflicts referred to the ILO (CETCOIT) and that a hearing for bringing both parties together was held in the Subcommittee, attended by representatives of SINTRAONG’S and officials from the Ministry of Social Protection; it was agreed to hold a subsequent meeting with the trade union organization and the Head of the Inspection, Monitoring and Surveillance Unit of the Ministry of Social Protection. The Government points out that the second meeting did not take place because the trade union organization failed to attend, without their having made any request to date for it to be held.
4. 551. As regards subparagraph (e) of the recommendations concerning the allegations submitted by the Union of Employees in the University of Medellín with respect to trade union interference, such as insisting on a list of candidates for the steering committee, the dismissal of Ms Dorella Salazar for reporting on these facts, pressure and threats of dismissal which led to 29 workers leaving the trade union, forbidding teaching staff to join a trade union, the dismissal without just cause in March 2001 of Norella Jaramillo, Ulda Mery Castro, Carlos Mario Restrepo and Julieta Ríos, as well as the subsequent dismissal of two more workers (Wilman Alberto Ospina and Jesús Alberto Munera Betancur) after they became union members and the repeated violation of the collective agreement signed in 2004, the Government points out that the Ministry of Social Protection is competent to deal with cases relating to trade union persecution and to hand down the corresponding penalties but is not competent to pronounce on dismissals, which is a matter for ordinary labour courts. Therefore, it is up to the workers to bring the necessary actions before the aforementioned jurisdiction and to inform the Ministry of the alleged trade union persecution, but they have failed to do so. The Government points out that legal proceedings could no longer be taken as, in accordance with section 488 of the Substantive Labour Code, any court action with respect to rights under this Code are restricted to a period of three years.
5. 552. The Government adds that the Rector of the University of Medellín sent his own observations, pointing out that the Committee’s previous conclusions had taken note of the trade union organization’s statements that had not been proved, and that the events reported by the Union of Employees in the University of Medellín would be serious if they had actually occurred. The allegations of the university employees’ trade union are, according to the Rector, rash. The documents annexed to the trade union organization’s complaint, supposedly to provide evidence, are sketchy and biased. Some are extracted from selective investigations which entirely absolved the University, a fact that the complainants fail to mention. Others (a complaint, a notification of a hearing) are incomplete copies of administrative proceedings which were also subsequently dismissed, as there was no proof of the alleged irregularities; the complainants also remained silent on this subject. Other documents, such as the alleged report of the trade union’s legal adviser, which moreover is undated, are really anonymous because they are not authenticated and lack the author’s signature.

C. The Committee’s conclusions

1. 553. The Committee notes the Government’s observations on the matters that were pending.
2. 554. As regards subparagraph (a) of the recommendation concerning the alleged refusal of the labour inspectorate to register SINTRAONG’S, the Committee had requested the Government to take the necessary measures to register it without delay. In this respect, the Committee notes that the Government pointed out that once the trade union organization had exhausted the government (administrative) channels for registration, it could bring the matter before the court competent for reviewing decisions handed down by the administration and that the trade union did not attend the last meeting set by the Special Committee on the Handling of Conflicts referred to the ILO (CETCOIT) to which the case was submitted.
3. 555. In this respect, the Committee recalls that a previous examination of the case revealed that: (a) the trade union was created on 12 September 2005 and its registration was requested on 13 September 2005; (b) the labour inspectorate formulated objections in a ruling on 26 September the same year and the assembly of members decided to correct some aspects of the statutes that had been objected to, but did not modify the clauses regarding the nature of the labour relationship of its members so it could continue accepting the membership of workers even if they did not have an employment contract but were nonetheless linked via other types of labour relationship such as service providers’ contracts or building works contracts; and (c) that through resolution No. 02741 of 5 December 2005, the labour inspectorate again rejected the request for registration and the legal appeals launched against the resolution, as there had been an appeal for protection made before the Constitutional Court.
4. 556. The Committee recalls that in its observations, the Government had recalled that the trade union had refused to modify the provisions of the statute allowing membership of “persons who offer their services in various ways”, thereby not complying with current labour legislation which requires that members of trade unions have a labour relationship established by an employment contract, and that the appeal for protection was not selected for review by the Constitutional Court.
5. 557. As in its previous examination of the case, the Committee recalls that Article 2 of Convention No. 87 establishes that all workers without distinction should have the right to establish and to join organizations of their own choosing, and that the criterion for determining the persons covered by that right is not based on the existence of an employment relationship. Given that the trade union’s request for registration was made in 2005, the Committee firmly expects that the registration authority has registered or will register SINTRAONG’S without delay should the union so desire and requests the Government to keep it informed in that respect.
6. 558. As regards subparagraph (d) of the recommendations concerning the allegations presented by SINTRAUSTA and CUT with respect to legal action to reinstate workers under union protection, the Committee had requested the complainants to specify how many workers had been dismissed and to provide their names and the circumstances in which this had occurred, in order to be able to examine the allegation in full knowledge of the facts. Noting that the trade union organizations have not sent further information on the allegations, the Committee is unable to proceed with an examination of them.
7. 559. With regard to subparagraph (e) of the recommendations concerning the allegations presented by the Union of Employees in the University of Medellín with respect to anti-union interference, such as insisting on a list of candidates for the steering committee, the dismissal of Ms Dorelly Salazar for reporting it, pressure and threats of dismissal which led to 29 workers leaving the trade union, forbidding teaching staff to join a union, the dismissal without just cause of Norella Jaramillo, Ulda Mery Castro, Carlos Mario Restrepo and Julieta Ríos in March 2001, as well as the later dismissal of two more workers (Wilman Alberto Ospina and Jesús Alberto Munera Betancourt) after they became union members, and the repeated violation of the collective agreement signed in 2004, the Committee had, taking account of the seriousness of these allegations, requested the Government to carry out an investigation without delay into all reported acts and, if they were found to be true, to take the necessary measures without delay to reinstate the dismissed workers. The Committee notes that, according to the Government, the workers concerned had not instigated legal proceedings for dismissal and that these were now statute-barred. It also notes that the Government sent observations made by the Rector of the University of Medellín to the effect that the Committee, in its previous examination of the case, had taken account of statements made by the trade unions that had not been proved, that the complaints were rash and that the documents annexed to the trade union complaints were sketchy and biased.
8. 560. In this respect, the Committee recalls that, in its previous examination of the case, it had requested the Government to carry out an independent investigation into the allegations and, if they were found to be true, to reinstate the dismissed workers. The Committee stresses that the objective of such an independent investigation is to ascertain the truth, or not, of the allegations presented by the Union of Employees in the University of Medillín and that, in the context of this inquiry, both the Government and the University authorities would have the opportunity to submit evidence to refute these allegations. The Committee therefore urges the Government to keep it informed of any action taken or change in the proceedings initiated by the dismissed employees of the University of Medellín and, if they are found to be true, to reinstate the dismissed workers and ensure that the teaching staff are guaranteed their trade union rights. The Committee requests the Government to keep it informed in that respect.