Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 368, Juin 2013

1. 262. The complaint is contained in a communication dated 6 March 2012 from the Bogota Telecommunications Company Workers’ Union (SINTRATELEFONOS), which is supported by the Single Confederation of Workers (CUT). SINTRATELEFONOS sent additional information in a communication dated 8 July 2012.
2. 263. The Government sent its observations in a communication dated December 2012.
3. 264. Colombia has ratified the Freedom of Association and Protection of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 265. The complainant organizations allege that, in 2008, SINTRATELEFONOS initiated a process aimed at capitalizing the company by linking up with a strategic partner, thereby paving the way for the privatization of this public company. The Executive Committee of SINTRATELEFONOS demonstrated its total rejection of this process by organizing marches and demonstrations. The complainant organizations state that, as a means of retaliation and intimidation, between 6 October 2008 and 30 May 2011, the company dismissed, with compensation, 27 workers affiliated with the trade union without just cause, whose names appear below: Danilo Henrique Hernández R., Hernando Canencio Benavides, Adel Fabian Ruales Alvear, Óscar Aldana Mejía, Luz Nidia Regalado González, Waldemiro Padilla Madrid, Jorge Eliecer Solorzano Morales, Julio Ediberto Pérez Yañez, Álvaro Henry Jimenez Vasquez, Norma Constanza Villanueva S., Héctor Mauricio Mantilla Alba, Mauricio Puerto Rangel, Sandra Yaneth Castelblanco C., Martha Sulay Valcarcel M., Arnulfo Alfredo Mejía Ortiz, Jhon Bairon Martínez Rodríguez, José Alonso Gualtera Silva, Raúl Enrique Camargo Susa, Adriana Marcela Acosta, Mauricio Arturo Suárez León, Luis Orlando Guevara Ruiz, Yamel Antonio Santana Millán, Dolly Chávez Quiroz, Nirza Pantevis, Isabel González Serrano, José Andres Moreu Pineda, and Ylbey Mora Morales.
2. 266. The complainant organizations indicate that SINTRATELEFONOS filed several applications for protection against the company in order to secure the reinstatement of the dismissed workers, alleging that the company had conducted itself in a manner that was anti-union in nature. Bogota Circuit Criminal Court No. 18 ordered, in the second instance, the reinstatement of 15 dismissed workers in a ruling handed down on 12 February 2010. In another ruling, handed down on 26 May 2010, this time in the first instance, Bogota Municipal Criminal Court No. 36 ordered the reinstatement of a further three workers.
3. 267. The complainant organizations add that the ruling handed down by Bogota Circuit Criminal Court No. 18 was overturned by the Constitutional Court in ruling T-660 of 2010 on the grounds that, in that case, the application for protection was inadmissible. They state that the ruling handed down by Bogota Municipal Criminal Court No. 36 was partially overturned in the second instance by Circuit Criminal Court No. 50 in its ruling of 12 July 2010. Both rulings entailed the dismissal, for the second time, of the workers who had been reinstated. Thirteen workers, several of whom were affected by the rulings being overturned, are in the process of initiating judicial proceedings before the labour courts of the city of Bogota in an attempt to secure their reinstatement.
4. 268. The complainant organizations also denounce the fact that the dismissals appear to have led many workers to leave the union for fear of reprisals at the hands of their employer. In addition, the introduction of voluntary retirement measures was allegedly weakening the trade union organization.

B. The Government’s reply

1. 269. In a communication dated December 2012, the Government transmits the company’s reply to the allegations made by the complainant organization. The company maintains that the complainant organization cannot provide evidence to support its claim that acts of anti union discrimination and repetitive and systematic dismissals took place, or that the company violated the trade union organization’s right to express itself, to demonstrate and to defend itself. The company adds that terminating a contract without just cause, as long as the correct amount of legal compensation is paid, is a power conferred upon the company by law, subject to criteria of reasonable objectivity. The company states that the 27 contract terminations mentioned by the complainant organization took place over a period of two-and-a-half years within a company that employed more than 3,000 workers in 2009–10, and 2,702 workers in May 2011, 2,304 of whom benefited from the collective agreement. The company states that these figures demonstrate that the 27 terminations were not the expression of an anti-union policy pursued by the entity in question. The company also indicates that the Constitutional Court has already ruled on the matter and that it did not find there to be any violation of the right of workers to join a union. Lastly, it states that the voluntary retirement plan offered by the company in 2010 is a valid legal action, of which more than 700 workers availed themselves of their own free will, and that no discrimination based on trade union affiliation occurred.
2. 270. In the same communication, the Government refers to the information provided by the company and finds that the alleged acts do not constitute anti-union discrimination. The Government reiterates that the Constitutional Court, in its ruling T-660 of 2010, determined that the company had not engaged in anti-union practices and did not consider the termination of an employment contract, in and of itself, to constitute a violation of the right to association.
3. 271. The Government also indicates that the acts that are the subject of the present complaint are also the subject of a complaint filed with the labour inspectorate on 9 May 2011 and that the inspectorate will soon take a decision. Lastly, it states that in order to bring the parties together and to reach a consensus on the allegations made, the Special Committee for the handling of cases referred to the ILO (CETCOIT) examined the case at its meeting on 30 November 2012, which resulted in a partial agreement being reached.

C. The Committee’s conclusions

1. 272. The Committee notes that the present case refers to allegations concerning the dismissal of 27 unionized workers from the Bogota Telecommunications Company in the context of changes relating to the capitalization of the company, which were criticized by the trade union organization.
2. 273. The Committee takes note of the observations of the Government and the company that coincide, to the effect that:
   • – the company limited itself to exercising its legal power to dismiss a worker without just cause, as long as the correct amount of legal compensation is paid;
   • – the 27 terminations, which were carried out over a period of two-and-a-half years within a company of more than 3,000 workers, more than 2,000 of whom are members of the trade union, were not the expression of an anti-union policy pursued by the company; and
   • – the Constitutional Court did not consider the acts denounced by the trade union to constitute a violation of the right to freedom of association.
3. 274. The Committee recalls that it is not called upon to pronounce upon the question of the breaking of a contract of employment by dismissal except in cases in which the provisions on dismissal imply anti-union discrimination [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 779]. In this regard, the Committee notes that, in the present complaint, the complainant organizations allege that the dismissal of 27 unionized workers by the company between 6 October 2008 and 30 May 2011 was an act of retaliation against SINTRATELEFONOS’s campaign against the company’s capitalization process.
4. 275. The Committee notes that the trade union filed several applications for protection on the grounds that its right to freedom of association had been violated; that Bogota Circuit Criminal Court No. 18 ordered, in the second instance, the reinstatement of 15 dismissed workers in a ruling handed down on 12 February 2010, in which it considered the dismissals to denote blatant anti-union persecution, that could push workers to leave the union; and that, in another ruling handed down on 26 May 2010, this time in the first instance, Bogota Municipal Criminal Court No. 36 ordered the reinstatement of a further three workers.
5. 276. The Committee also notes that the ruling handed down by Bogota Circuit Criminal Court No. 18 was overturned by the Constitutional Court in ruling T-660 of 2010 on the grounds that, in that case, the application for protection was inadmissible; that the ruling handed down by Bogota Municipal Criminal Court No. 36 was partially overturned in the second instance by Circuit Criminal Court No. 50 in its ruling of 12 July 2010; and that both rulings entailed the dismissal, for the second time, of the workers who had been reinstated.
6. 277. The Committee notes that, in the aforementioned ruling, the Constitutional Court recalled its jurisprudence, according to which, when there is reasonable doubt as to the anti-union nature of a dismissal, the employer must provide the objective reasons that justify the termination of the employment contract. However, in this particular case, the Constitutional Court found there to be insufficient factual evidence to constitute reasonable doubt as to the existence of the alleged anti-union persecution. The Committee notes that the Constitutional Court took the following into consideration: the relationship between the number of dismissals that were the subject of the application for protection, the total number of workers affiliated with the trade union (more than 2,000) and the period of time over which the dismissals took place; the fact that, during the period in question, workers affiliated with the trade union and workers not affiliated with the trade union were dismissed; the lack of evidence to indicate whether the unionized workers who were dismissed were trade union officials or activists; and the lack of evidence to prove the alleged impact of the dismissals on other unionized workers.
7. 278. The Committee notes that, when the Constitutional Court declared the application for protection inadmissible owing to a lack of evidence, it considered it to be the responsibility of the ordinary courts to determine, by means of a thorough examination of the evidence, whether the right to freedom of association had actually been violated in this case. Taking note of the complainant organization’s statement to the effect that several workers are initiating judicial proceedings before the labour courts in an attempt to secure their reinstatement, the Committee requests the Government to keep it informed of the outcome of those judicial proceedings. The Committee also requests the Government to keep it informed of the decision taken by the labour inspectorate on the complaint presented to it regarding this case.
8. 279. Lastly, the Committee takes note of the Government’s statement to the effect that CETCOIT examined the case at its meeting on 30 November 2012, which resulted in a partial agreement being reached. The Committee recalls that the CETCOIT is a national tripartite body established to resolve disputes relating to freedom of association and collective bargaining. The mechanism of CETCOIT is voluntary and allows for the examination of complaints pending before the Committee on Freedom of Association, as well as the disputes, which have not yet been submitted to the ILO. It aims at facilitating the conclusion of agreements between the parties, based on, among other things, the ILO Conventions on freedom of association and collective bargaining and the principles of the Committee. The Committee notes that the agreement concluded within CETCOIT, on 30 November 2012, indicates that the issue reconciled by that agreement refers to another subject matter not covered in Case No. 2933. The agreement also mentions that if, in the future, the parties reach a similar agreement regarding the complaint that is the subject of Case No. 2933, the complaint will be dropped. The Committee welcomes the process aimed at resolving these issues at the national level through dialogue with the social partners and requests the complainant organization and the Government to keep it informed of any agreements that may be reached before CETCOIT regarding this case.