Rapport intérimaire - Rapport No. 358, Novembre 2010

1. 382. The complaint appears in a communication from the World Federation of Trade Unions (WFTU) dated 4 May 2009 and a communication from the Single National Union of Workers in the Mining, Energy, Metallurgical, Chemical and Allied Industries of Colombia (FUNTRAENERGETICA) dated 8 July 2009.
2. 383. The Government sent its observations in a communication dated 22 October 2009.
3. 384. 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. Allegations of the complainant organizations

1. 385. In its communication dated 4 May 2009 the WFTU alleges that the Santa Marta branch of the Union of the Workers in the Metal Engineering, Machinery, Metallurgical, Railways Industry and in the Allied Marketing and Transport Sector (SINTRAIME), an affiliate of FUNTRAENERGETICA in Colombia, informed the Committee of incidents that occurred on 3 and 19 April 2009, whose gravity warrants their consideration by the Committee on Freedom of Association.
2. 386. According to the WFTU, members of the anti-riot police squad, on orders from their superior officers, brutally aggressed the workers of the north Colombian railway company, Ferrocarriles del Norte de Colombia (FENOCO SA), who since 24 March 2009 had been holding a permanent assembly in the company’s plants in several municipalities which had brought the coal transport activities of the Drummond and Glencore companies to a standstill.
3. 387. The WFTU states that the incidents occurred between 8 and 9 a.m. on 3 April at the FENOCO plant in Bosconia (Cesar Department), when anti-riot police burst into the area where the workers were meeting, broke up the assembly and dispersed the participants, striking and injuring six people in the process, one of whom (Gustavo García) ended up with his arm broken, another (Wilfrido Cantillo) had his face punched and ear injured and two (Alfredo Vargas and another worker) received multiple bruises. A housewife and a minor who were members of the community supporting the workers were also beaten. Schoolchildren, residents of an old people’s home and neighbours in the area likewise suffered from the effects of tear gas. One of the older men suffered a minor heart attack. The police punctured tyres, broke windows and caused other damage that they then blamed on the workers to justify their brutal tactics. The complainant organization states that the workers had from the start, on 24 March, kept their demonstration peaceful, protected the company’s assets and complied with the law. The WFTU adds that, at the same time as the police attack, the trains of the Drummond company started working again, which shows that the incidents were coordinated and that FENOCO and the holding companies (Drummond and two companies belonging to Glencore, Prodeco and Carbones de la Jagua) were directly responsible.
4. 388. The complainant states that FENOCO’s 600-plus workers were demonstrating because, although on 4 November 2008 they had joined the union SINTRAIME, an affiliate of FUNTRAENERGETICA, and had simultaneously presented a list of demands, FENOCO refused to recognize that the union represented the workers and to negotiate their list of demands. Subsequently, on 19 April 2009, the WFTU had received a further communication from SINTRAIME (which is attached) stating that on the morning of 19 April, when FENOCO and SINTRAIME were on the verge of reaching an agreement, some 700 members of the national police violently broke up the permanent assembly which the workers of FENOCO’s plants in Bosconia, Sevilla, Fundación and Santa Marta, who were guarding their various places of work, had decided to hold because of the outright refusal of their employer – the Drummond and Glencore monopolies that are FENOCO’s principal shareholders – to sit down and negotiate the modest list of demands that had been presented on 4 November 2008, in accordance with the Constitution, Colombian law and the ILO’s Conventions.
5. 389. The complainant organization states that armoured vehicles were used in the course of the police assault to knock down the walls of the workshops, thus injuring any number of workers, including the president of the Santa Marta branch of SINTRAIME, José de Jesús Orozco H., who was arrested along with his fellow workers, Aníbal Pérez, Reinaldo Sánchez, David Jiménez and Deivis Calletano. Two of them were held in Sevilla and two in Valledupar, while the president’s whereabouts remain unknown. It adds that the workers had been holding a peaceful demonstration to demand an improvement in their precarious working, economic and social conditions, for themselves, for their families and for the impoverished local communities. However, the companies, which are monopolies, unfairly and illegally refused to discuss the list of demands that had been presented six months earlier, even though the Ministry of Social Welfare had registered the Santa Marta branch of SINTRAIME as a trade union. FENOCO had gone so far as to propose quite unreasonably that the branch should join another union because it would not negotiate with SINTRAIME and that they should thus be at the mercy of the owners who could accept or refuse whichever trade union they chose.
6. 390. In its communication dated 8 July 2009, FUNTRAENERGETICA alleges that 14 workers belonging to SINTRAIME and the president of its Santa Marta branch had been dismissed on anti-union grounds on 7 July 2009, without FENOCO complying with the labour regulations set out in the Labour Code.

B. The Government’s reply

1. 391. In its communication dated 22 October 2009 the Government observes that, in the allegations, the WFTU refers to the following incidents: police violence against members of SINTRAIME, a collective work stoppage and FENOCO’s refusal to negotiate a list of demands.
2. 392. In the first place, the Government states that in its complaint the WFTU fails to mention the requirements for the Committee to be able to examine the case; in fact, it provides no evidence to back up its claims, and this alone is sufficient for the complaint to be considered inadmissible. Specifically, the Committee has established as one of its principles that complaints “must be as fully supported as possible by evidence ...” Secondly, the Government states that the allegations do not refer to specific infringements by FENOCO of ILO Conventions Nos 87 or 98, thus failing to comply with another of the Committee’s requirements: “Complaints must be presented in writing duly signed by a representative of a body entitled to present them and they must be as fully supported as possible by evidence of specific infringements of trade union rights” [see para. 43 of the 1996 Digest, Annex I]. The WFTU merely makes a series of claims without any evidence that would provide the Committee with sufficient grounds to analyse the substance of the allegation. That being so, and since the complaint does not meet the minimum requirements for its admissibility, the Government respectfully requests the Committee, before it makes any recommendation, to call on the complainant organization to provide relevant evidence, failing which it will refrain from analysing the case since to do so would infringe the Colombian State’s right to defend itself and to refute the accusations.
3. 393. With regard to the alleged acts of violence, the WFTU states in its complaint that the national police attacked FENOCO’s workers but that, according to information supplied by the company, the workers affiliated to SINTRAIME used force to take over state-owned public property administered by FENOCO, to which they caused major structural damage, and that the police therefore were bound by their constitutional and legal duty to intervene.
4. 394. As to the behaviour of the police, the Government states that its prime function and duty is to ensure that the necessary conditions exist for the country’s inhabitants to exercise their rights and freedoms and to live together in peace, by guaranteeing the maintenance of public order. In practice, as stated in the document entitled La policía nacional por el camino de la eficiencia, la transparencia y el buen uso de la fuerza (Towards an efficient and transparent national police and a proper use of force), the police – as the servant of the State and community and a friend of the people, and so as to maintain a good image – have to refrain from any actions that might undermine their social and professional prestige, as well as that of the institution they represent. They must, on the contrary, be the guarantor of public order so that citizens can exercise their rights and duties and live together peaceably. They are empowered to use force in exceptional circumstances to prevent the disturbance of the peace and to restore public order, in which case they may use only such force as is permitted by law, preferably such as is liable to cause the least damage to people’s physical integrity and property and complies with international standards.
5. 395. The Government adds that members of the police may make use of physical force or firearms for the sole purpose of ensuring compliance with the law, restoring public order and/or protecting the community’s rightful assets, and that on no account may they violate human rights. The police are empowered to resort to physical force in the exercise of their duties where it is impossible to restore law and order by other means such as dialogue, persuasion or warning. The degree of permissible force must in all cases be limited to what is necessary and reasonable in terms of the prevailing circumstances.
6. 396. The Government stresses that, without exception, the public authorities observe the Constitution and the law, and that the national police thus operate within legal bounds and on the principle that their primary concern is the people, the rule of law, human rights and the efficient and transparent performance of the duty of each one of its officers. In Colombia workers who believe that their rights have been violated have access to appropriate machinery to bring the matter before the competent judicial authorities in order to clarify the situation and identify those who they believe are responsible. The legal and constitutional duty of the police force to maintain and restore law and order takes precedence over the right of trade unions to hold demonstrations, especially in the present instance where, according to FENOCO, the work stoppage called by SINTRAIME was not peaceful, since the company’s plant suffered severe damage.
7. 397. The Government states that it has sought information from the competent authorities on the alleged incidents.
8. 398. With regard to the material and economic damage sustained by FENOCO, the Government states that the company has lodged an administrative complaint against SINTRAIME with the Cundinamarca Territorial Directorate of the Ministry of Social Welfare in connection with the damage to its installations and to state property it administers which occurred during the work stoppage.
9. 399. With regard to the claim that the whereabouts of the branch’s president, José de Jesús Orozco H., remain unknown, the Government points out that the payroll supplied by the company and attached to its reply shows that that is not true and that after the work stoppage he was back at work as normal. Moreover, Mr Orozco served as president of SINTRAIME’s Santa Marta branch on several occasions after 19 April 2009. The Government therefore stresses that the WFTU’s claims do not correspond to the facts, since in fact Mr Orozco never disappeared.
10. 400. The Government adds that it has requested information from the competent authorities on the matters raised in the allegation, which it will duly forward to the Committee as soon as it is received.
11. 401. With regard to the work stoppage itself, the Government states that under national laws and regulations “work stoppage” refers to the unscheduled suspension of a company’s activities. Article 431 of the Labour Code stipulates that, “whatever the reason, there can be no collective suspension of work until the procedure has been fully complied with as stipulated.” The text goes on to specify that the procedures and requirements that must be complied with are stipulated in articles 432 (appointment of a delegate to negotiate at the direct agreement stage), 433 (initiation of dialogue) and 434 (duration of the dialogue), 436 (failure to reach agreement) and 444 (declaration and conduct of a strike), all of which are part of the procedure for declaring a strike where no agreement has been reached in the negotiation of a list of demands.
12. 402. The Government states that, according to information supplied by the Directorate of Inspection, Surveillance and Monitoring, the legal representative requested on several occasions that the work stoppage be officially noted and that a series of labour inspectors verified, and placed on record, the complete cessation of activities. The Government also refers to the efforts deployed by the Directorate to resolve the dispute.
13. 403. The Government points to the fact that the WFTU says nothing about the real motives for the work stoppage and the violent turn it took, with the workers aggressively and illegally taking over the plants, and that it was this that prompted the labour administration inquiry conducted by the Territorial Directorate of Cundinamarca.
14. 404. As for the banning of SINTRAIME’s work stoppage, the Government observes that Act No. 1210 stipulates that the decision to declare a strike unlawful is taken not by the Ministry of Social Welfare but by the judiciary, in this case the Supreme Court of Justice (the highest judicial authority in labour matters), which declared the work stoppage unlawful on 3 June 2009.
15. 405. The Government states that, to begin with, when SINTRAIME first called the strike the Supreme Court of Justice pointed out that, when strike action has been voted and approved, the strike has to take place within the following two to ten days (article 445 of the Labour Code) – that being in accordance with the Committee on Freedom of Association’s principle that “The obligation to give prior notice to the employer before calling a strike may be considered acceptable” [see Digest, 2006, para. 552]. Since the general assembly at which SINTRAIME declared a collective work stoppage was held on 28 February and 1 March 2009, the strike should therefore have started between 4 and 13 March. In fact, however, the strike began on 24 March, after the deadline, and was therefore illegal. Moreover, regarding the allegation that it was the employer’s actions that led to the illegal work stoppage, the Court stated that “it is not immediately clear that the company’s intention has been to withhold trade union dues for no motive, since it gives its reasons for doing so”.
16. 406. Secondly, with regard to SINTRAIME’s list of demands, the Labour Chamber of the Supreme Court of Justice considered that SINTRAIME’s decision to call for a collective work stoppage to protest against the employer’s failure to engage in direct talks with the trade union was “likewise unjustifiable”. The Court further stated that SINTRAIME should have waited until a ruling had been handed down on its appeal against the Ministry of Social Welfare’s resolution No. 000616 of 16 March 2009 – which ruled that there had been no refusal to negotiate – before taking the “extreme decision of stopping work without awaiting the outcome of the appeal”.
17. 407. Finally, regarding the illegality of the work stoppage called for by SINTRAIME, the Government points out that, after examining the jurisprudence in such cases, the Court declared that in practice every trade union was entitled to exercise its “right to engage in a collective dispute and pursue it to its conclusion” and that, in so far as minority unions may choose to conduct their own negotiating process, it was quite feasible for the same enterprise to have more than one collective agreement.
18. 408. The Government notes the Court’s observation that, among the disputes that have to be submitted for compulsory arbitration, Act No. 584 of 2000 includes “collective labour disputes involving minority trade unions, where the absolute majority of an enterprise’s workers has not opted for strike action”. It concluded that the legislature thus grants minority trade unions “the power to sign contracts and to negotiate, on the understanding that the right to declare a strike must remain in the hands of the absolute majority of the workers in an enterprise”.
19. 409. With regard to the alleged refusal to negotiate a list of demands, the Government states that the Territorial Directorate of Cundinamarca conducted a labour administration inquiry and, in the first instance, adopted Resolution No. 000616 of 16 March 2009 wherein it declared that, since a legal dispute existed between SINTRAIME and FENOCO SA, it was not for the Ministry of Social Welfare to take a decision on the matter but for the ordinary labour court. The decision of the court of first instance was confirmed by the court of second instance in resolution No. 0001384.
20. 410. The Government attaches FENOCO’s comments on the allegations. Referring to the legal dispute behind FENOCO’s action, the company notes that article 356 of the Labour Code defines industrial trade unions as being “composed of individuals who provide services in various enterprises in the same industry or branch of economic activity”. In other words, the workers who claim to be members of SINTRAIME must have a connection with enterprises engaged in metal engineering, machinery, metallurgy, marketing in the sector; otherwise, they do not meet the legal requirements for union membership. FENOCO maintains that SINTRAIME cannot engage in union activities within the company because it is part of the rail, coal and transport sector. Consequently, the company considers the list of demands presented on 2 November 2008 is a blatant abuse of the right of freedom of association. In other words, it challenges the legal right of SINTRAIME to affiliate workers from the rail, coal and transport sector. FENOCO therefore considers that it is not obliged to negotiate with SINTRAIME, inasmuch as enterprises cannot be compelled to negotiate with unions that do not fulfil the legal requirements for presenting a list of demands for an industry that they do not represent.
21. 411. FENOCO believes that SINTRAIME’s Santa Marta branch has no legal existence, since its employees cannot rightfully become members of that union. It observes that the ILO has classified the rail transport industry as distinct from the metal engineering, machinery, metallurgy, iron and steel and electrical engineering industry; thus, in the International Standard Industrial Classification of All Economic Activities (ISIC) developed by the ILO, “Transport via railways” is classified separately as class 6010. That is to say that SINTRAIME cannot legally affiliate workers who are employed in enterprises that are engaged in activities other than those represented by the union.
22. 412. The representative of FENOCO also refers to the signing of the collective agreement with the railway workers’ union known as SINTRAVIFER, which is affiliated to the General Confederation of Labour (CGT); the Confederation was involved throughout the negotiations with SINTRAVIFER, which shows that the principle of freedom of association was fully respected. Furthermore, the illegal conduct of the members of SINTRAIME not only hampers the public transport service provided by FENOCO but seriously undermines the fundamental rights of the company’s employees, including those affiliated to SINTRAVIFER. For instance, the unlawful work stoppage prevented these and other FENOCO employees from exercising their right to work in fair and decent conditions, since SINTRAIME’s unjustified “demonstrations” and disproportionate and malicious conduct prevented the entire workforce from entering the company premises. SINTRAIME’s violation of the constitutional rights of FENOCO’s employees was so blatant that they were obliged to appeal to the courts for protection against SINTRAIME and to defend their freedom of association, their right to bargain collectively, their right to work, etc. The matter is currently before the Supreme Court of Justice.
23. 413. FENOCO believes that the conflict is the product of an inter-union dispute and recalls the following principle of the Committee on Freedom of Association: “Article 2 of Convention No. 98 is designed to protect workers’ organizations against employers’ organizations or their agents or members and not against other workers’ organizations or the agents or members thereof. Inter-union rivalry is outside the scope of the Convention”. [see Digest, 2006, para. 1118] It emphasizes that it is obvious in the case under examination that an inter-union dispute exists between SINTRAVIFER, the primary trade union at FENOCO, and SINTRAIME, an industrial trade union, which has on many occasions and in several contexts demonstrated its refusal to accept the creation of SINTRAVIFER. This is quite clear from the exchange of communications between SINTRAIME and the CGT, to which SINTRAVIFER is affiliated.
24. 414. The company states that the Supreme Court of Justice, when ruling on the appeal for protection and in order to guarantee the right of freedom of association, ordered that a process of collective bargaining be engaged. FENOCO requested clarification of the ruling, and the matter is currently awaiting the decision of the Constitutional Court. FENOCO states that, in order to bring about an agreement between the parties, the Ministry of Social Welfare, acting through the Directorate of Inspection, Surveillance and Monitoring, programmed a series of meetings between FENOCO and SINTRAIME. In the presence of the Ministry, the two parties accordingly met on 28 October 2009 where an agreement was reached to enter into a dialogue on 4 November 2009.

C. The Committee’s conclusions

1. 415. The Committee observes that the complainant organizations allege: (1) refusal of FENOCO SA to recognize the SINTRAIME as a representative trade union organization or to negotiate a list of demands presented by it; (2) banning of the work stoppage carried out peacefully by SINTRAIME from 24 March 2009, on FENOCO’s premises; (3) violent repression by the police of a peaceful permanent assembly held by SINTRAIME on 3 and 19 April 2009, with resultant damage to the plant and injuries to several workers; (4) arrest of a number of workers and disappearance of the president of the Santa Marta branch of SINTRAIME on 19 April 2009; and (5) anti-union dismissal of 14 workers affiliated to SINTRAIME on 7 July 2009 and of the president of the union’s Santa Marta branch without complying with the labour regulations in force. The Committee notes that the Government questions the admissibility of the complaint on the grounds that there is no evidence. The Committee notes, however, that by and large the allegations are sufficiently precise and the complainant organization has submitted a ruling of the Supreme Court of Justice that contains detailed information.
2. 416. The Committee notes the Government’s statement that: (1) the Territorial Directorate of Cundinamarca conducted a labour administration inquiry into the refusal to negotiate the list of demands; (2) since a legal dispute exists between SINTRAIME and FENOCO the competent authority is the ordinary labour court; (3) the work stoppage was declared unlawful in a ruling handed down on 3 June 2009; (4) the workers affiliated to SINTRAIME used force to take over state-owned public property, to which they caused major structural damage, and the police were therefore bound by their constitutional and legal duty to intervene; (5) the Government has requested information from the competent authorities, the Territorial Directorate of Cundinamarca is currently investigating the incidents and an administrative complaint has been lodged by the company against SINTRAIME in connection with the damage caused during the work stoppage; (6) according to FENOCO, the president of the Santa Marta branch of SINTRAIME went back to work for the company as normal after the work stoppage and therefore clearly did not disappear on 19 April 2009. He has served as union leader on a number of occasions since then, contrary to the complainant organization’s assertions his whereabouts were never unknown, and the competent authorities have nevertheless been asked to look into the alleged incidents; (7) in order to guarantee freedom of association the Supreme Court of Justice ordered a process of collective bargaining to be engaged; and (8) the company and SINTRAIME, in the presence of the Ministry of Social Welfare and after a number of meetings held under its auspices, reached an agreement on 28 October 2009 to start negotiating on 4 November 2009.
3. 417. With regard to the acts of violence that were allegedly perpetrated on company premises by members of the anti-riot police, the Committee notes that, according to the complainant organizations, on 3 April 2009 the anti-riot police burst into the company premises Bosconia (Cesar Department) where the members of SINTRAIME were holding a peaceful permanent assembly, injured several people in their attempt to disperse the workers and caused damage to property that they then blamed on the workers to justify their brutal tactics. The complainants allege that subsequently, on 19 April 2009, the police attacked the workers who were attending the permanent assembly. The Committee notes that, according to the Government, the permanent assembly was not peaceful, since the workers affiliated to SINTRAIME used force to take over state-owned public property to which they caused major structural damage, and the police therefore were bound by their constitutional and legal duty to intervene. On this point, the Committee notes the Government’s statement that an inquiry into the incidents is being conducted by the Territorial Directorate of Cundinamarca; it also takes note of the administrative complaint lodged by the company against SINTRAIME concerning the damage caused during the work stoppage. While noting the different versions advanced by the complainant organization and the Government regarding the peaceful nature of the strike and the perpetrators of the damage that was caused to property, the Committee deeply regrets that a number of workers sustained injuries. The Committee requests the Government to keep it informed of the outcome of the administrative inquiry and of the administrative decision to be handed down on the complaint lodged by the company in respect of the damage to its installations.
4. 418. With regard to the alleged disappearance of the president of the Santa Marta branch of SINTRAIME, José de Jesús Orozco, the Committee notes the Government’s statement that his whereabouts were never unknown but that, at the end of the work stoppage, he returned to work for the company as normal and therefore clearly did not disappear on 19 April 2009, contrary to the assertions of the complainant organization. The Committee observes that the Government has nevertheless sought information on the alleged incidents from the competent authorities and requests the Government to keep it informed of the matter and to send it the relevant information when it becomes available. The Committee expresses its concern over the alleged arrests and acts of violence and requests the Government to send its observations on the alleged arrest of several workers and to inform it whether they are presently at liberty and if any penal charges have been brought against them. The Committee also invites the complainant organization to send it any information it has on the subject.
5. 419. With regard to the refusal to negotiate the list of demands presented on 4 November 2008, the Committee notes the information supplied by the Government to the effect that a labour administration inquiry was conducted which led to the adoption in the first instance (confirmed in the second instance) of Resolution No. 000616 of 16 March 2009, which ruled that, since a legal dispute existed between SINTRAIME and the company the matter was for the ordinary labour court to decide. The Committee observes that, according to the company: (1) workers who claim to be members of SINTRAIME must have a connection with enterprises engaged in metal engineering, machinery, metallurgy, iron and steel, electrical engineering or marketing in the sector, whereas FENOCO’s activities concern the rail, coal and transport sector, which is why the company refused to negotiate the list of demands; (2) a collective agreement exists between the company and a trade union known as SINTRAVIFER (a primary trade union affiliated to the CGT) and there is an inter-union dispute between SINTRAVIFER and SINTRAIME; (3), following the administrative resolutions referring to the existence of a legal dispute, the Supreme Court of Justice ordered that a process of collective bargaining be engaged (FENOCO states that it requested a clarification of the resolution); and (4) the company confirms the Government’s statement inasmuch as, in the presence of the Ministry of Social Welfare, SINTRAIME and FENOCO reached an agreement on 28 October 2009 to start negotiating on 4 November 2009. The Committee requests the Government to indicate whether the planned negotiations have begun and expects that they will enable an agreement to be reached that will put an end to the dispute. It requests the Government to keep it informed of any progress in this area.
6. 420. With regard to the banning of the work stoppage by the workers affiliated to SINTRAIME, the Committee notes the information supplied by the Government to the effect that the work stoppage was declared unlawful in a Supreme Court of Justice ruling of 3 June 2009 (a copy of which was attached by the complainants and the Government), notably on the grounds that the legal procedure had not been observed and the legal conditions for exercising this right had not been fulfilled, i.e. failure to respect the legal deadline for holding the strike, lack of direct dialogue between the union and the company to resolve the problem (according to the ruling), calling of a work stoppage without awaiting the outcome of the administrative appeal that was lodged when FENOCO refused to engage in direct dialogue but without actually refusing to negotiate (according to the administrative ruling). The Committee also notes FENOCO’s contention that the illegal work stoppage prevented its employees from exercising their right to work in fair and decent conditions and that this led to the lodging of an appeal for protection against SINTRAIME that is currently before the Supreme Court of Justice. The Committee observes further that in its 3 July 2009 ruling the Supreme Court of Justice declared that the transport of passengers and goods is not an essential service in which strike action can be prohibited but that in exercising that right the requirements of the law must be respected. The Committee requests the Government to keep it informed of the outcome of the appeal for protection lodged by FENOCO against SINTRAIME for violating the freedom to work of nonstrikers and to send it a copy of the decision that is handed down.
7. 421. With regard to the anti-union dismissal of 14 members and a union leader of SINTRAIME alleged by FUNTRAENERGETICA, the Committee deeply regrets that the Government has not provided any information on the subject and requests it to do so without delay.