Rapport définitif - Rapport No. 374, Mars 2015

1. 269. The complaint is contained in a communication dated 2 May 2013 of the National Union of Workers of the Processing Industry of Rubber, Plastic, Polyethylene, Polyurethane, Synthetics, Parts and derivatives of these processes (SINTRAINCAPLA).
2. 270. The Government sent its observations in a communication dated 24 February 2014.
3. 271. Colombia has ratified 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 complainant’s allegations

1. 272. The complainant organization alleges that Mr Omar Arquímedes Londoño, worker at Compañía de Empaques SA (hereinafter the company) and union leader of SINTRAINCAPLA, was dismissed on 3 January 2011 without the company or the Colombian courts respecting his trade union immunity, thereby violating the trade union’s right to elect its representatives in full freedom. In addition, the dismissal took place against a backdrop in which the union leader was opposed to the union contract concluded between the company and the trade union of Compañia de Empaques SA (SINTRAEMPAQUES) and SINTRAINDUPASCOL. Under Colombian legislation, a union contract is understood to mean a contract that is concluded between one or more trade unions and one or more employers or employers’ unions for the provision of services or the performance of a task by its members. With regard to the mentioned allegations, the complainants report that: (i) Mr Londoño was a member of the executive committee of SINTRAINCAPLA of the Medellín branch; his status was duly notified (on 27 September 2010) to SINTRAEMPAQUES, with which the worker had an open-ended work contract; (ii) on 3 January 2011, the worker was dismissed without judicial authorization being sought to lift trade union immunity, which is the reason he instituted legal proceedings; (iii) at first instance, the Labour Court of the Medellín Circuit ordered the reinstatement of the worker, ruling that there was no evidence showing that the claimant’s registration on the executive committee of SINTRAINCAPLA was unlawful and that, contrary to the arguments put forward by the company, the Substantive Labour Code did not require the branch of the union’s executive committee to be created in the municipality where the worker’s company was based; (iv) the Labour Chamber of the High Court of Medellín overturned the judgment of the court of first instance, holding that Mr Londoño’s appointment on the executive committee of SINTRAINCAPLA’s Medellín branch was unlawful because, in the Court’s opinion, only workers working in the municipality of Medellín could be members of the said executive committee. The worker concerned, however, was employed in Itagüí, a municipality where, moreover, SINTRAINCAPLA did not have an executive committee branch; and (v) the High Court, in addition, ruled that Mr Londoño had, by means of his appointment as union leader of SINTRAINCAPLA, solely pursued his personal interests, ignoring the collective purpose of union immunity.
2. 273. Lastly, the complainant organization states that: (i) the real reason for dismissal was because of the trade union leader’s opposition to the (labour) exploitation of the company’s workers by means of the union contract concluded between the company and the trade unions, SINTRAEMPAQUES and SINTRAINDUPASCOL; and (ii) the ruling of the High Court of Medellín – which held that Mr Londoño had, in his attempt to obtain union immunity from SINTRAINCAPLA, abused that right – was the result of the Court’s subjectivity and anti-union prejudice. On the basis of the above, the organization is of the opinion that Article 3 of Convention No. 87, which stipulates that public authorities should refrain from any interference which would restrict the right of workers’ organizations to elect their representatives in full freedom, was violated and requests that the worker be reinstated.

B. The Government’s reply

1. 274. In a communication of 24 February 2014, the Government transmitted the reply of Compañía de Empaques SA, which states that: (i) the company, for many years, had two trade unions, SINTRAEMPAQUES and SINTRAINDUPLASCOL, with which it regularly signed collective labour agreements; (ii) in contrast, SINTRAINCAPLA had never had any members from the company or had any type of relationship with it; (iii) the company has signed, both with SINTRAEMPAQUES and SINTRAINDUPLASCOL, a union contract, which is a collective labour contract recognized under Colombian legislation, which grants unionized workers greater benefits than those provided for in legislation; (iv) Mr Londoño was not dismissed because of his objection to the conclusion of the union contract but because of his inadequate performance and productivity, and his poor relationship with his colleagues, which had been signalled as problems for quite some time; (v) Mr Londoño stopped being SINTRAEMPAQUES’ union leader on 27 June 2010 as a result of not being re-elected and claimed to have obtained new trade union immunity through a trade union which did not have representative status in the company; and (vi) the last-minute appointment of Mr Londoño as an alternate in the Medellín branch of the executive committee of SINTRAINCAPLA failed to meet the requirements set out in the union’s articles of association, namely the article requiring that members must work in a company that has its seat or is located in the same municipality as that where the executive committee branch is operating.
2. 275. The company’s observations include a communication from the Medellín branch of SINTRAINDUPLASCOL, which highlights the good relations between the company and the two trade unions in the company and states that Mr Londoño’s dismissal was a unilateral decision of the company which was not, at any time, influenced by the said trade unions.
3. 276. Further to the company’s observations, the Government states that: (i) with regard to the dismissal, the mandate of the Committee on Freedom of Association does not extend beyond the protection against acts of anti-union discrimination, and in this case the trade union has not provided evidence of any anti-union persecution; (ii) in this case, there has been no violation of the legislation concerning trade union immunity because Mr Londoño’s membership did not meet the requirements set out by the union’s articles of association – stipulating that a member must belong to an executive committee branch in the place where the company is based – since it was established that the company does not have a seat in the municipality of Medellín; and (iii) the Colombian courts have issued a definitive ruling on the petitioners’ claims and found against them.

C. The Committee’s conclusions

1. 277. The Committee notes that this case concerns allegations of anti-union dismissal of Mr Londoño by SINTRAEMPAQUES without it or the courts recognizing the worker’s status as union leader and without judicial authorization being sought to lift trade union immunity.
2. 278. The Committee observes that the complainant organization alleges that: (i) the real reason for Mr Londoño’s dismissal was because of his opposition as union leader to the labour exploitation of the company’s workers by means of the union contract concluded between the company and the trade unions, SINTRAEMPAQUES and SINTRAINDUPASCOL, and (ii) Mr Londoño’s appointment as a SINTRAINCALPA union leader being declared invalid had no legal foundation and, to the contrary, demonstrated anti-union discrimination, which constitutes a violation of Article 3 of Convention No. 87 which provides for the right of trade unions to elect its representatives in full freedom.
3. 279. The Committee notes the company’s observations forwarded by the Government, which state that: (i) after not being re-elected as union leader of one of the trade unions in the company, SINTRAEMPAQUES, Mr Londoño claimed to have obtained new trade union immunity through a trade union which had never had a member from the company and had never undertaken any trade union activity in the company; (ii) the worker was not protected by trade union immunity because his appointment as alternate in the Medellín branch of SINTRAINCAPLA was invalid on the grounds that he could not legally belong to an executive committee branch which had its seat in a different city to that in which the company for which he worked had its seat; and (iii) he was dismissed not for anti-union reasons but for objective reasons concerning poor performance and productivity, and his poor relationship with his colleagues, which had been signalled as problems for quite some time.
4. 280. The Committee further notes that the Government states that: (i) the complainant organization has not provided evidence of any anti-union persecution and therefore the Committee does not have the remit to examine Mr Londoño’s dismissal; and (ii) the High Court of Medellín and the Supreme Court of Justice have issued definitive rulings on the petitioners’ claims.
5. 281. The Committee observes that the allegations of the complainant organization and the replies of the company and the Government show that: (i) Mr Londoño was hired by the company in 2003; (ii) from 2008 to 2010, the worker was a member on the executive committee of SINTRAEMPAQUES, one of the two trade unions established in the company; (iii) in the union elections of June 2010, Mr Londoño was not re-elected as a member of the executive committee of SINTRAEMPAQUES because of ideological differences; (iv) in September 2010, the industry union SINTRAINCAPLA informed the company of Mr Londoño’s membership and his appointment as alternate of the executive committee of the Medellín branch (the municipality of Medellín is next to the municipality of Itagüí, where the company is based); (v) on 3 January 2011, once the six additional months of trade union immunity, owing to his status as union leader of SINTRAEMPAQUES, had lapsed, the worker was dismissed by the company and was paid compensation; (vi) in the first instance, the Labour Court ordered Mr Londoño’s reinstatement because there were no valid grounds to deny him the status of union leader of SINTRAINCAPLA and his dismissal should have been preceded by judicial authorization to lift trade union immunity; (vii) in the second instance, the High Court of Medellín overturned the judgment of the court of first instance, holding that a worker working in Itagüí could not validly be appointed leader of a trade union branch established in Medellín and that the worker had solely pursued his personal interests, ignoring the collective purpose of union immunity; and (viii) the trade union’s tutela proceedings were rejected by the Supreme Court of Justice as it held that the judgment of the High Court of Medellín could not be deemed to be openly arbitrary and that instituting tutela proceedings was not the appropriate procedural way to review the interpretation of the labour legislation developed by the High Court.
6. 282. Based on this, the Committee observes that this case sets out, on the one hand, the alleged anti-union discrimination of which Mr Londoño has been the victim and, on the other, the decision of the courts concerning the invalidity of his appointment as union leader of SINTRAINCALPA, which, according to the complainant organization, violates its right to elect its representatives in full freedom as provided for in Article 3 of Convention No. 87.
7. 283. The Committee notes that it does not have sufficient information to reach a decision on whether there has been anti-union discrimination against Mr Londoño. In this respect, the Committee notes that the legal proceedings initiated by the complainant organization focused on the validity of Mr Londoño’s appointment as the union leader of SINTRAINCAPLA and, therefore, whether there was trade union immunity. The Committee will, therefore, not examine the matter further.
8. 284. Regarding the alleged violation of the right of the trade union to elect its representatives in full freedom, the Committee notes that the declaration of invalidity of Mr Londoño’s appointment as a member of the executive committee of SINTRAINCAPLA’s Medellín branch was based on the fact that he was not working in the city where the branch had its seat but in the neighbouring municipality (Itagüí) and that, similarly, the trade union was not based in the city where the company that employed Mr Londoño was based. Given that both Colombian legislation and SINTRAINCALPA’s articles of association do not contain provisions stipulating that leaders of a trade union branch must work in the municipality where it is based and that, moreover, SINTRAINCALPA is an industry union whose scope is not limited to a particular company, the Committee recalls that freedom of association implies the right of workers and employers to elect their representatives in full freedom and that the determination of conditions of eligibility for union membership or union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 388 and 405]. The Committee has consistently stated that the requirement of membership of an occupation or establishment as a condition of eligibility for union office are not consistent with the right of workers to freely elect their representatives [see Digest, op. cit., para. 407]; similarly, it considers that the requirement that union leaders of a trade union branch must work in the municipality where the branch has its seat to be contrary to the abovementioned right, especially where the union concerned is an industry union. The Committee, therefore, requests the Government to take the necessary measures to ensure full compliance with this principle.