Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 360, Juin 2011

1. 401. The complaint is contained in two communications from the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC) dated 11 and 17 June 2010.
2. 402. The Government sent its observations in a communication dated 10 January 2011.
3. 403. 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. The complainants’ allegations

1. 404. In their communication of 11 June 2010, the complainants indicate that the workers of the Tocancipa Textiles Enterprise TOPTEX SA, a private entity, founded the trade union organizations known as SINTRATOPTEX. They add that article 365(2) of the Substantive Labour Code stipulates that “within five working days following the date of the constituent meeting the union shall submit to the Ministry of Labour and Social Security a written application for union registration accompanied by the following documents” this obliges persons founding unions to register the new entity as soon as possible after the date of establishment. The complainants also indicate that the period of trade union immunity for workers is two months from the date on which the union is registered.
2. 405. The complainants indicate that as a result of that stipulation, the company waited for the two-month period to elapse and then dismissed all the workers; specifically ten union leaders and 19 members were dismissed following the establishment of the union SINTRATOPTEX. The complainants have provided a list with the names and functions of the dismissed workers.
3. 406. The complainants also indicate that workers of the DOMESA SA enterprise set up a union which was registered with the Ministry of Social Protection on 29 April 2010, and its president and six members of its executive committee were immediately dismissed. The dismissal was also announced of 15 of the founder members. Lastly, in their communication of 17 June 2010, the complainants state that the 27th Municipal Criminal Court of Bogotá DC acknowledged the violation of Convention No. 87 by the company. In a decision of 8 June 2010, the Court awarded formal protection for the fundamental rights of 12 workers and ordered the company to reinstate the workers in question.

B. The Government’s reply

1. 407. In its communication of 10 January 2011, the Government states that it requested information from TOPTEX SA on the allegations. The company acknowledges that the workers founded the union SINTRATOPTEX. The company also agrees with the union’s point concerning the period of union immunity, since in its view the union should be duly constituted within that period.
2. 408. As regards the alleged dismissals, the Government indicates that the company denies the allegation and maintains that the company did not dismiss any of the workers who belonged to the union.
3. 409. As regards the evidence presented by the complainants, and in particular the list of ten union leaders and 19 members dismissed following the establishment of the union SINTRATOPTEX, the Government indicates that according to the company, the document in question cannot be regarded as evidence because it is no more than a claim by the union, and that is it not accurate in that none of the workers mentioned in the list has been dismissed, and all are still working at the company.
4. 410. As regards the allegations concerning the company DOMESA SA, the Government explains that the facts on which these complaints are based relate to the manner in which the majority of the union’s executive committee members were dismissed following the official notification of the union’s establishment (29 April 2010), in some cases for a specific reason and in others without any justification being given; dismissals continued on the following day and, in all, some 30 workers were dismissed.
5. 411. According to the Government, the Ministry of Social Protection, in order to respond to the complaint, in the context of the administrative inquiry undertaken by the Office of Coordinator of the Group for the Disputes Settlement and Conciliation notes that on 29 April 2010, the Trade Union of Workers of DOMESA SA (SINTRADOMESA) was registered with the Ministry under No. JD 1-09-2010 of Cundinamarca Territorial Directorate. It was also confirmed that the union was established in accordance with the relevant legal requirements and that Colombia’s Political Constitution, in its articles 38 and 39, stipulates that “workers and employers have the right to establish trade union organizations or associations, without any intervention by the State, and legal recognition of such bodies shall be effected through the mere fact of registration of the formal instrument of establishment”. This is confirmed by the certificate issued by the coordinator of the Ministry’s trade union registry group, which states precisely that the union was registered and had sent the appropriate document, and therefore met the legal requirements for establishing unions, this being one of the functions of the labour inspectors.
6. 412. The Government also states that the Office of Coordinator of the Group for the Disputes Settlement and Conciliation of the Ministry of Social Protection fined the company 25,750,000 pesos, a sum equivalent to 50 times the current minimum wage, to be paid to the National Learning Service (SENA). The Government emphasizes that, as it can be observed, the Ministry of Social Protection has adopted a number of measures to protect freedom of association, and recalls that the country’s legal system protects that right, beginning with the Political Constitution and including the Substantive Labour Code and the criminal law. As regards the latter, it should be recalled that Law No. 1309 of 2009, at the Government’s initiative, increased the penalty for this type of offence.
7. 413. Lastly, the Government notes that there are social dialogue forums available in the country to reconcile parties in dispute. The Special Committee for the Handling of Conflicts (CETCOIT) has played a crucial role in re-establishing trust between the parties; for this reason, it is envisaged that a CETCOIT subcommittee will be set up to deal with this case, and the Governing Body is therefore invited to decide that the case does not call for further examination but should be dealt with by the CETCOIT.

C. The Committee’s conclusions

1. 414. The Committee notes that in the present case, the complainants allege the anti-union dismissal of workers following their establishment of trade unions at two enterprises.
2. 415. The Committee notes that according to the complainants: (1) workers of TOPTEX SA set up a union SINTRATOPTEX; (2) the company waited until the two-month period of trade union immunity had elapsed and then dismissed all the workers (see the attached list of workers dismissed, comprising ten union officials and 19 members).
3. 416. The Committee also notes that according to the Government, the company: (1) acknowledges that the workers founded the union SINTRATOPTEX; (2) agrees with the union’s point regarding the period of trade union immunity, and considers that by the time that period has elapsed the union should be well established; (3) denies the dismissals and maintains that none of the union members were dismissed; (4) claims that the evidence put forward by the complainants cannot be regarded as real evidence as it is no more than an assertion by the union, and is inaccurate, given that none of the workers included in the list has been dismissed and all remain employed at the company.
4. 417. Noting the total contradiction between the statements made by the complainant and those of the company on the dismissals, the Committee requests the Government to investigate the allegations and determine whether or not the workers allegedly dismissed are still working at the company (as the company maintains), and to keep it informed in this regard.
5. 418. The Committee also notes that according to the complainants: (1) some workers at DOMESA SA set up the trade union SINTRADOMESA which was registered with the Ministry of Social Protection on 29 April 2010; (2) the president of the union and six members of the executive board were immediately dismissed; (3) the 27th Municipal Criminal Court of Bogotá DC acknowledged the violation of Convention No. 87 by the company and on 8 June 2010, the judge officially declared the fundamental right of 12 workers to be protected and ordered the company to reinstate the workers in question.
6. 419. The Committee also notes that the Government states that: (1) SINTRADOMESA was registered on 29 April 2010 with the Ministry of Social Protection under registration No. JD 1-09-2010 of the Cundinamarca Territorial Directorate, and on that day 30 workers were dismissed including the majority of members of the union’s executive committee, in some cases without any reason being given, in others for specific reasons; (2) the Office of Coordinator of the Group for Conflict Settlement and Conciliation of the Ministry of Social Protection fined the company 25,750,000 pesos, the equivalent of 50 times the legal monthly minimum wage, in order to protect the right of association; and (3) it is planned that a subcommittee of the Special Committee for the Handling of Conflicts will be set up to deal with this case.
7. 420. The Committee wishes to emphasize that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 799].
8. 421. The Committee notes that the company was fined, reinstatement of the dismissed workers was ordered, and it is planned that a subcommittee of the Special Committee for the Handling of Conflicts will be set up to deal with this case. Under these circumstances, the Committee requests the Government to indicate whether the dismissed workers have been reinstated in accordance with the ruling of the 27th Municipal Criminal Court of Bogotá, and to keep it informed of the discussions and conclusions of the aforementioned subcommittee.