Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 365, Novembre 2012

1. 409. This complaint is contained in a communication from the National Union of Workers of the Textile Industry of Colombia (SINTRATEXTIL – Medellín branch), the Workers Association of Leonisa SA (ASOTRALEONISA) and the Single Confederation of Workers of Colombia (CUT) dated 24 March 2011. The complainant organizations sent additional information in communications dated 20 June and 30 September 2011.
2. 410. The Government sent its observations in communications dated 11 October 2011 and 24 September 2012.
3. 411. 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. 412. In their communications dated 24 March, 20 June and 30 September 2011, SINTRATEXTIL – Medellín branch, a national organization, the ASOTRALEONISA and the CUT state that a trade union has existed in LEONISA SA for 52 years, formerly known as SINTRALEONISA. Today, there are two trade unions, one an industrial union, called SINTRATEXTIL – Medellín branch, and the other a general union, called ASOTRALEONISA. Since its formation in 1958 until 1990, LEONISA SA complied with ILO Conventions Nos 87 and 98, signing a collective labour agreement, which applied to all workers (both union members and non-union members). These negotiations were agreed and signed by direct settlement in stages, as required by law. In other words, there had never been a strike, or recourse to an arbitration tribunal. Since 15 June 1992, the company has been lifting the legal and extralegal benefits contained in the collective agreement and imposing it on workers as a collective accord. From that year, the company began offering cash gifts to workers if they signed the collective accord.
2. 413. The complainants state that in 1995 they filed for a protection order, seeking protection of the fundamental rights of free association and collective bargaining and the right to equality. On 2 August 1995, the Constitutional Court ruled in favour of the trade union organization, in judgment No. SU-342/95, whereby it was decided:
   • First. … to grant protection of the infringed equal rights to freedom of association and collective bargaining of the petitioners, trade union, union members and non-union members who were beneficiaries of the collective labour agreement. Third. To order the company, henceforth and when concluding collective accords and collective agreements governing working conditions both for non-union workers who are signatories to those accords and for union workers, to refrain from setting working conditions in the aforementioned accords that are discriminatory against union workers and that result in the violation not only of the right to equality but also to freedom of association and collective bargaining.
3. According to the complainants, in practice the company continues to violate these rights since it fails to recognize protected and conventional rights.
4. 414. The complainants contend that from 1992 to 2000 the collective agreement was updated in line with the economic benefits given in the collective accord, and that since 2002 no new agreement has been signed. They report that the company has 1,150 workers hired directly by it; it has branch companies with an average of 2,000 workers, 80 per cent of whom are hired under a union contract; production is carried out in over 200 workshops (micro companies) and these are non-contractual piece-rate workers; it has over 100,000 workers nationwide in catalogue sales with no benefits or contractual relationship; it uses all forms of outsourced recruitment allowed under Colombian labour legislation; and has four cooperatives, which have over 3,000 hired workers.
5. 415. The complainants state that the company’s two trade unions only had 140 union members between them.
6. 416. In October 2006, recruitment began through union contracts with the trade union called SINTRACONTEXA. Today, it has over 1,400 workers through this form of outsourcing.
7. 417. Specifically, the complainants allege that the company has been systematically violating the labour rights of its workers, attempting to polarize union and non-union workers with the following reprehensible behaviour:
   • – repression, anti-union persecution and discrimination of trade union members, by: (a) violation of the fundamental right of free association. Trade union membership by workers has been obstructed and impeded through promises, gifts and pressure tactics in the workplace. Refusal of benefits to those who dare to exercise the right to join a trade union, and (b) violation of the fundamental right of collective bargaining (refusal to negotiate with the trade union organizations on their legal set of claims);
   • – violation of the collective agreement, in the form of: (a) misappropriation by the company of the compensation to which the unionized workers have a right through the collective agreement when they are unfairly dismissed, and (b) denial of the right to housing loans to workers who are trade union members.
8. (The complainants also refer to other issues not connected to violations of trade union rights.)
9. 418. According to the complainants, the only form of protection available to them is by filing a set of claims to generate a financial dispute and thus obtain circumstantial immunity, which prevents unfair dismissal.

B. The Government’s reply

1. 419. In its communication dated 11 October 2011, the Government reports that in letter No. 1620 of 19 February 2010, the trade union organization ASOTRALEONISA requests the Ministry to investigate LEONISA SA for refusal to initiate discussions about the set of claims filed by the trade union in question. The investigation concluded with decision No. 0386 of 30 August 2010, fining the company 5,150,000 pesos. In legal appeals lodged, the penalty was upheld in both instances. The Government adds that, in letter No. 2078 of 3 March 2010, SINTRATEXTIL requests that LEONISA SA be investigated for alleged anti-union persecution. The investigation concluded with decision No. 2056 of 9 December 2010, declaring that the entity did not have the authority to settle the case submitted to it for consideration. Appeals lodged through government channels were rejected for non compliance with the requirements of article 52 of the Administrative Disputes Code.
2. 420. The Government reports that on 5 August 2011 a ratification and clarification request was signed, in follow-up to the citation served by the Ministry in the light of the complaint presented jointly by SINTRATEXTIL – Medellín branch and ASOTRALEONISA to the ILO. In the aforementioned request, the representatives of the trade union organizations in question asked the Ministry for the complaint presented to be taken over by the Labour and Social Security Affairs Division of the Office of the Attorney-General, given that the Ministry carried out labour administrative investigations and referred them to the authority of the ordinary labour courts, as it could not settle issues falling within the jurisdiction of labour judges. The Ministry, in letter No. 14305-007602 of 17 August 2011, referred the aforementioned request and documents containing the complaint presented by the trade union organizations to the Deputy Attorney-General for Labour and Social Affairs. It was currently awaiting the decision of the Office of the Attorney-General.
3. 421. The Government states that pursuant to article 19 of Act No. 584 of 2000, in decision No. 0001070 of 2011, the Ministry orders the establishment of a compulsory arbitration tribunal in LEONISA SA. The company LEONISA SA lodged an appeal and sought the revocation of the aforementioned decision; this was settled through decision No. 00003177 of 29 July 2011, upholding the decision and exhausting administrative remedies.
4. 422. The Government reports that in connection with this case the following legal proceedings were initiated: protection proceedings, on the grounds that protection of the constitutional right to free association is being denied (Municipal Criminal Court No. 2, 23 November 2007); and on 8 February 2008 the Circuit Criminal Court No. 11 upheld the decision.
5. 423. Lastly, the Government reports that labour administrative proceedings and legal action have been taken in this case, which the administrative authority abides by in the exercise of the separation of public powers. Again, it awaits the decision of the Office of the Attorney-General.
6. 424. In its communication dated 24 September 2012, the Government indicates that a meeting of the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT) took place with regard to the issues raised in this case and that while the efforts of the parties did not result in an agreement, the stakeholders expressed their will to engage in dialogue. The Government transmits a communication from LEONISA SA in which the latter indicates that it had returned to the complainant, ASOTRALEONISA, trade union membership dues deducted from workers affiliated to this organization (in the present case, the complainant has not raised the question of trade union membership dues).

C. The Committee’s conclusions

1. 425. The Committee observes that in this case the complainants allege that, as part of anti union activities in LEONISA SA, trade union membership by workers has been obstructed and impeded, the collective bargaining agreement in force has been violated (members are denied the right to housing loans and to compensation for unfair dismissal) and, since 2002, no signing of a new collective agreement has been allowed.
2. 426. With regard to the allegations of anti-union activities in the company, the Committee notes that the Government reports that: (1) on 3 March 2010, SINTRATEXTIL requested that the company be investigated for alleged anti-union persecution; (2) an investigation was carried out, which concluded with decision No. 2056 of 9 December 2010, in which it was declared that it did not have the authority to settle the case submitted to it for consideration; (3) on 5 August 2011 a request of confirmation was signed, in which the trade union organizations SINTRATEXTIL – Medellín branch and ASOTRALEONISA asked the Ministry for the complaint presented to be taken over by the Labour and Social Security Affairs Division of the Office of the Attorney-General, given that the Ministry carried out labour administrative investigations and referred them to the authority of the ordinary labour courts, as it could not settle issues falling within the jurisdiction of a labour judge; and (4) on 17 August 2011, the Ministry referred to the Deputy Attorney-General for Labour and Social Affairs the aforementioned request and documents of the complaint presented by the trade union organizations and is currently awaiting the decision of the Office of the Attorney-General. In that regard, the Committee expects the Office of the Attorney-General to give a decision in the near future on the allegations of anti-union persecution and requests the Government to keep it informed thereof.
3. 427. With regard to the allegation that since 2002 no signing of a new collective agreement has been allowed, the Committee notes that the Government states that: (1) in a letter dated 19 February 2010 the trade union organization ASOTRALEONISA requested the Ministry to investigate the company for refusal to initiate discussions about the set of claims filed by the trade union; (2) the investigation concluded with decision No. 0386 of 30 August 2010, fining the company 5,150,000 pesos; (3) legal appeals were lodged and the penalty was upheld in both instances; (4) pursuant to article 19 of Act No. 584, the Ministry ordered, in decision No. 0001070 of 2011, the establishment of a compulsory arbitration tribunal in the company; and (5) the company lodged an appeal against that decision, which was rejected, upholding the decision and exhausting administrative remedies. In that regard, the Committee, while taking note of the measures adopted by the Government concerning the difficulties preventing the parties from being able to conclude a collective agreement, strongly expects that the arbitration tribunal convened by the administrative authority will complete its tasks expediently and make an arbitral award in settlement of the dispute.
4. 428. Lastly, concerning the allegation that the company is violating the collective agreement in force (members are denied the right to housing loans and to compensation for unfair dismissal), the Committee requests the Government to take all necessary steps to ensure that an investigation is carried out in that connection and that, in the event the allegations are found to be true, to guarantee implementation of the collective agreement and to apply the penalties provided for in legislation.