Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 354, Juin 2009

1. 424. This case was last examined by the Committee at its May 2008 meeting [see 350th Report, approved by the Governing Body at its 302nd Session, paras 508–570].
2. 425. The Government sent new observations in communications dated 15 and 19 September 2008.
3. 426. 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. 427. At its May 2008 meeting, the Committee made the following recommendations [see 350th Report, para. 570]:
   • (a) As regards allegations to the effect that, in the context of this anti-union policy, the following dismissals occurred which flouted established disciplinary procedure embodied in the collective labour agreement: Janne del Carmen Herazo Salgado, Liliana Robayo, Nelsy Monroy Alfonso, Gloria Ximena Ramírez Alturo, Diana Alexis Paez Maldonado, María del Pilar Salazar Lizcano, María del Pilar Rojas González y Marco Iván Rico Elhga Mercedes Gómez Hañez, Omar Fredi Nova Rueda and Sandra Katalina Zambrano Mantilla, the Committee requests the Government to forward a copy of the court rulings which have already been handed down and to keep it informed of the judicial proceedings under way, with a view to identifying the reasons for the dismissals and how these were viewed by the judicial authorities and to prove that they were not related to the exercise of the workers’ trade union rights and, if it is found that the workers were dismissed on anti-union grounds, to take measures to impose sufficiently dissuasive sanctions on those responsible.
   • (b) With reference to the other allegations regarding: pressure on workers not to join SINTRABANCOL and persecution of those who had become members, the impossibility of posting communications on the bank notice board because they would be immediately destroyed by management, pressure on workers to sign a letter against the trade union; increased working hours without payment of overtime; changes in working conditions laid down in the collective agreement; pressure on staff to give up present and future agreement-based benefits and interference by the Bank in the employees’ private lives, the Committee requests the Government to carry out an independent investigation in order to ascertain the veracity of all allegations submitted, taking into account both the position of the trade union and that of the employer, and to keep it informed in this respect.
   • (c) As regards allegations that the company systematically contract service companies, the Committee requests the Government to guarantee that all those working at BANCOLOMBIA can enjoy the right to establish or join a trade union of their choice, in compliance with Article 2 of Convention No. 87.

B. The Government’s reply

1. 428. In its communications of 15 and 19 September 2008, the Government sent its observations with regard to the outstanding issues.
2. 429. As regards subparagraph (a) of the recommendations, the Government states that the information provided by BANCOLOMBIA concerning the dismissals reveals the following:
   • - Omar Fredi Nova Rueda: a letter was sent terminating his contract of employment. Mr Nova Rueda lodged an appeal for protection of constitutional rights (tutela) which was dismissed as unfounded. BANCOLOMBIA has not been notified of any judicial proceedings.
   • - Nelsy Azucena Monroy Alfonso: a letter was sent terminating her contract of employment with just cause. Ms Monroy Alfonso filed legal proceedings. The proceedings are under way and no ruling has been handed down.
   • - Marco Iván Rico: the Second Labour Court of Cucuta Circuit authorized Mr Rico’s dismissal on 4 July 2006, and its decision was upheld by the court of second instance on 3 October 2006. Mr Rico lodged a tutela action with the Labour Appeals Chamber of the Supreme Court of Justice, and on 28 November 2006 the Court handed down a ruling denying the action.
   • - Liliana Rocío Robayo: a letter was sent terminating her contract of employment with just cause on 27 October 2006. She filed proceedings in the ordinary labour jurisdiction, which are currently under way before the 19th Labour Court of the Bogotá Circuit. No ruling has been handed down yet.
   • - María del Pilar Rojas González: a letter was sent terminating her contract of employment with just cause on 9 May 2006. This former employee has not filed proceedings with the ordinary labour jurisdiction. At the time of her dismissal, the Bank was not aware that she was a member of any trade union.
   • - María del Pilar Salazar Lizcano: a letter was sent terminating her contract of employment with just cause on 31 July 2006. This former employee has not filed proceedings with the ordinary labour jurisdiction. At the time of her dismissal, the Bank was not aware that she was a member of any trade union.
   • - Diana Alexis Páez Maldonado: was sent a letter terminating her contract of employment with just cause on 12 June 2006. This former employee has not filed proceedings with the ordinary labour jurisdiction. At the time of her dismissal, the Bank was not aware that she was a member of any trade union.
     • The Government emphasizes that it is very important that the trade union correct the trade union status of María del Pilar Salazar Lizcano, Diana Alexis Páez Maldonado and María del Pilar Rojas González.
   • - Janne del Carmen Herazo: dismissed with just cause from BANCOLOMBIA on 12 August 2004. Ms Herazo filed proceedings with the First Labour Court of Sincelejo Circuit, which found for the Bank, and its decision was upheld by the Sincelejo Superior Court.
   • - Sandra Katalina Zambrano Mantilla: dismissed with just cause from BANCOLOMBIA on 15 May 2007. Proceedings are currently under way before the 11th Labour Court of the Bogotá Circuit.
   • - Gloria Ximena Ramírez Alturo: dismissed on 21 April 2006. Filed proceedings in 2007, which are ongoing.
3. 430. As regards subparagraph (b) of the recommendations and the request to carry out an independent investigation, the Government reports that the Office for Cooperation and International Relations made inquiries about the administrative labour investigations conducted against BANCOLOMBIA by the Cundinamarca and Antioquia Regional Directorates. In this regard, the Cundinamarca Regional Directorate reported that on 11 November 2007, the President of the SINTRABANCOL trade union filed a complaint of alleged violation of the right to organize. By a decision dated 22 November 2007, the coordinating office of the Inspection and Oversight Group assigned the 18th labour inspector the task of conducting the administrative labour investigation within its remit against the employer BANCOLOMBIA. By a decision of 3 December 2007, the 18th labour inspector took over the administrative labour proceedings and ordered the gathering of evidence. In an official telegram dated 6 March 2008, the legal representative of the trade union was summoned to appear on 25 March 2008 to confirm, add to or withdraw the complaint. The President of SINTRABANCOL came at the appointed time for the administrative labour procedure, stating that the matter at issue in the complaint had been dealt with in a meeting with the representative of the International Labour Organization (ILO) in Colombia and representatives of the Bank of Colombia and the Ministry of Social Protection, at which it was agreed that the trade union and the enterprise would engage in direct bargaining within 90 days on the subject of the right to organize with a view to reaching a direct settlement. Accordingly, a request was made to shelve the complaint, with the proviso that if a settlement were not reached, an application would be made to reopen the proceedings. In view of the withdrawal of the complaint by the complainant, the authority shelved the complaint by decision of 25 March 2008.
4. 431. As regards the Antioquia Regional Directorate, the Government states that it will send its observations on the matter once it has received a reply.
5. 432. The Government adds that, thanks to the good offices of the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT), there has been a marked improvement in relations between BANCOLOMBIA and SINTRABANCOL, as evidenced by the meetings held by the parties in Rondalla, Antioquia, on 31 March and 1 and 2 April 2008, at which BANCOLOMBIA and SINTRABANCOL made certain commitments to enhance dialogue between the parties. In addition, on 4 September 2008, again within the framework provided by the CETCOIT, the parties undertook to make progress in labour relations, as expressed as follows in the attached document:
6. (1) We note with special satisfaction the positive labour relations climate currently prevailing in BANCOLOMBIA, as a result of a process of building and enhancing trust between the parties through ongoing communication and dialogue as the best means of preventing and settling differences that naturally arise in labour relations; (2) a valuable contribution to this positive labour relations climate has been the joint participation of the parties in academic events on consultation and dispute settlement held in the presence of experienced facilitators whose background and expertise stimulated the process; another trade union operating in BANCOLOMBIA, the National Union of Bank Employees (UNEB), also participated in the events; (3) moving forward to our goal of building a new labour relations style, based on mutual respect, dialogue and trust, we achieved progress at an early stage, enabling us to resolve certain issues that would otherwise have given rise to conflict and confrontation between the parties, which encourages us to take an optimistic view of the future of labour relations in BANCOLOMBIA; (4) in particular, we observe with satisfaction that this new labour relations climate has made it possible to begin preparations sufficiently in advance for the coming round of collective bargaining, which will lead to the conclusion of a collective agreement to replace the current one, due to expire on 31 October next. Accordingly, committees of both parties are working together to that end, which is very important, considering that no list of demands has been submitted yet, and that this is the first time such a situation has arisen in BANCOLOMBIA; this gives reason to hope that the forthcoming negotiations will lead to a satisfactory outcome for both parties, in a speedy, fair and direct manner; and (5) in view of the above, we are pleased to state that, thanks to the commitment of the parties, a very positive labour relations climate now prevails in BANCOLOMBIA, quite unlike that which gave rise to the complaint presented by the executive committee of SINTRABANCOL to the ILO (Case No. 2560). While differences remain, we are convinced that with our renewed commitment to ongoing dialogue and willingness to review these divergences, they can be overcome or at least managed in a respectful and professional manner, in keeping with the fundamental labour principles of the ILO.
7. 433. The Government highlights the capacity for consultation and goodwill displayed by SINTRABANCOL and BANCOLOMBIA to settle their differences, which is in keeping with the principles of the Committee on Freedom of Association, according to which: “The Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations”. The Government emphasizes the importance of the CETCOIT’s intervention, since it was thanks to its good offices that a rapprochement could be achieved between the parties; it should be borne in mind that it was the CETCOIT that had scheduled the first meeting, which was the starting point for the parties to set in motion a process for settling their differences.
8. 434. As regards subparagraph (c) of the recommendations, the Government emphasizes that Colombian workers are free to organize in accordance with Article 2 of Convention No. 87, provided that they comply with national legislation when establishing such organizations.
9. 435. In this regard, according to the law only employers and persons who are workers as defined by section 22 of the Substantive Labour Code, that is persons bound by a verbal or written employment contract, may organize in employers’ organizations and trade unions. Other persons carrying out activities otherwise than under an employment contract may organize in a different form of organization, as guaranteed by article 38 of the Political Constitution. It is thus an indispensable requirement, in order to form an employer organization or trade union, to be an employer or a worker, according to article 39 of the Political Constitution and sections 353 and 356 of the Substantive Labour Code.

C. The Committee’s conclusions

1. 436. The Committee notes the Government’s observations on the issues that remained pending.
2. 437. As regards subparagraph (a) of the recommendations, concerning dismissals, which flouted established disciplinary procedure embodied in the collective labour agreement, of Janne del Carmen Herazo Salgado, Liliana Robayo, Nelsy Monroy Alfonso, Gloria Ximena Ramírez Alturo, Diana Alexis Páez Maldonado, María del Pilar Salazar Lizcano, María del Pilar Rojas González, Marco Iván Rico, Omar Fredi Nova Rueda and Sandra Katalina Zambrano Mantilla, the Committee recalls that it requested the Government to forward a copy of the court rulings which have already been handed down and to keep it informed of the judicial proceedings under way, with a view to identifying the reasons for the dismissals, and, if it were found that the workers had been dismissed on anti-union grounds, to take measures to impose sufficiently dissuasive sanctions on those responsible. In this regard, the Committee notes the information provided by the Government and the copies of the judicial decisions and proceedings, which indicate that proceedings are under way in the cases of Nelsy Monroy Alfonso, Liliana Rocío Robayo, Gloria Ximena Ramírez Alturo and Sandra Katalina Zambrano Mantilla. In the case of Marco Iván Rico, the judicial authority authorized the lifting of trade union immunity, and the decision was upheld by the court of second instance. Moreover, the amparo proceedings brought by Mr Rico were dismissed, as were those initiated by Omar Fredi Nova Rueda. In the judicial proceedings brought by Janne del Carmen Herazo, the court found for the Bank. As regards Diana Alexis Páez Maldonado, María del Pilar Salazar Lizcano and María del Pilar Rojas González, they had not brought any judicial action. Moreover, the Government states that the enterprise was not aware that they were members of the trade union. The Committee notes this information and requests the Government to keep it informed of the judicial decisions still pending.
3. 438. As regards subparagraph (b) of the recommendations concerning pressure on workers not to join SINTRABANCOL and persecution of those who had become members, the impossibility of posting communications on the bank notice board because they would be immediately destroyed by management, pressure on workers to sign a letter against the trade union; increased working hours without payment of overtime; changes in working conditions laid down in the collective agreement; pressure on staff to give up present and future agreement-based benefits and interference by the Bank in the employees’ private lives, the Committee recalls that it requested the Government to carry out an independent investigation in order to ascertain the veracity of all allegations submitted, taking into account both the position of the trade union and that of the employer. In this regard, the Committee notes with interest that in the context of an investigation initiated by the Antioquia Regional Directorate at the request of SINTRABANCOL and following the intervention of the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT), a marked improvement was achieved in relations between the bank and SINTRABANCOL, as a result of which the trade union withdrew its complaint. In addition, again with CETCOIT’s assistance, an agreement was concluded on 4 September 2008 between the Bank and the complainant organization to put an end to the dispute through dialogue between the parties. The Committee notes the agreement with interest and firmly hopes that, under the agreement that has been reached, the parties will be able to settle their differences in accordance with the principles of freedom of association.
4. 439. As regards subparagraph (c) of the recommendations, concerning the allegations that the enterprise systematically contracts service companies, the Committee recalls that it requested the Government to guarantee that all those working at the bank can enjoy the right to establish or join a trade union of their choice, in compliance with Article 2 of Convention No. 87. In this regard, the Committee notes that the Government states that only persons bound by a written or verbal employment contract may establish or join trade unions, under section 22 of the Substantive Labour Code. Recalling that under Article 2 of Convention No. 87, all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing, and that the criterion for determining the persons covered by this right is not based on the existence of an employment relationship with an employer, the Committee requests the Government once again to take the necessary steps to guarantee that all those working at or for the bank can establish or join a trade union of their choice and to keep it informed in this respect.