Report in which the committee requests to be kept informed of development - Report No 360, June 2011

1. 423. The complaint is contained in a communication of the National Union of Mining and Power Industry Workers (SINTRAMIENERGETICA) received on 14 June 2010.
2. 424. The Government sent its observations in two communications dated 14 January and 4 May 2011.
3. 425. 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 organization

1. 426. The complainant organization indicates that on 21 March 2009 there was an industrial accident in the Pribbenow coal mine (Cesar Department) in which Mr Dagoberto Clavijo Barranco died. The mine is operated by the company Drummond Ltd Colombia (referred to below as “the company”). The mine workers reacted and stopped work, demanding that the company should provide safe working conditions. The protest was later joined by the workers at Puerto Drummond in the municipality of Ciénaga, Magdalena Department. The SINTRAMIENERGETICA leaders then entered into mediation and requested the company to find solutions to the workers’ requests. The complainant organization emphasizes that the stoppage was not decided because of that fatality alone but came on top of 14 deaths of workers in industrial accidents as well as hundreds of accidents causing disabilities and occupational diseases to the workers. It indicates that, on repeated occasions, the workers and the trade union had presented claims relating to safety, but these claims, claims which rightly denounced risks of accidents which endangered their lives, were ignored by the company.
2. 427. The complainant organization recognizes that the stoppage was not a strike declared in accordance with the requirements of Colombian law, but a spontaneous stoppage by workers with occupational claims which was not promoted by the complainant organization. The workers exercised their right to protest. The complainant organization states that, subsequently, the company filed a claim against SINTRAMIENERGETICA in a special proceeding to have the “strike” declared illegal. The complainant indicates that the Valledupar High Court declared the stoppage illegal and defined it as a strike. That ruling was upheld by the Supreme Court of Justice despite the fact that many of the fundamental rights of the workers and the SINTRAMIENERGETICA leaders accused of promoting the supposed strike were violated.
3. 428. The complainant organization states that the judgment of the Supreme Court of Justice became final in November 2009 and the company said that it would take disciplinary actions against 35 SINTRAMIENERGETICA officials and grass-roots activists in three sections. In total, the company dismissed 19 workers as a consequence of the declaration that the strike was illegal (seven officials from the Ciénaga section, five officials and two grass-roots activists from the El Paso section and two officials and two grass-roots activists from the Chiriguaná section). Among the dismissed workers, nine showed symptoms of occupational diseases acquired in the company for whom it was necessary to bring actions for protection (tutela) because they had been dismissed when sick without compliance with the full legal requirements. As well as disregarding the workers’ right to protest, falsely representing the stoppage and converting it into a strike, treating the spontaneous reaction of the workers as a stoppage planned by the trade union and violating the right to due process, the company failed to comply with a regulation issued by the Ministry of Social Protection. According to the complainant organization, the said regulation provides that the company should have passed the list of workers accused of participating in the illegal strike to the Ministry of Social Protection which had the function of: (i) investigating the degree of participation of those workers and determining individually whether the participation was active or passive, and (ii) recommending to the company the type of measure that it could adopt, namely: (a) exoneration for not having participated; (b) a disciplinary sanction for passive participation; or (c) dismissal for active participation, on a case-by-case basis at the discretion of the investigator. Only then could the company dismiss anyone.
4. 429. The complainant organization indicates that the company took advantage of these decisions to dismiss the SINTRAMIENEGRTICA officials. Indeed, one company director even commented that the first to be dismissed would be the officials who had gone to the United States in the past to push a claim against the company for financing paramilitary groups to assassinate two presidents and a vice-president of the union.
5. 430. According to the complainant organization, the Ministry of Social Protection, despite being aware of these violations by the company, did nothing to restore the rights of the workers who were dismissed in contempt of the regulation issued by that Ministry, in application of the law which allows the dismissal of workers who participate in a strike which has been declared illegal, thus allowing a breach of the rights of workers belonging to SINTRAMIENERGETICA.
6. 431. The complainant organization also presents supporting evidence to corroborate the facts. Firstly, it is clear that the company’s workers do not forget the deaths of their workmates who died in industrial accidents or from occupational diseases attributable to the company. Thus, the stoppage by the workers is a reaction to the pain they felt at those deaths.
7. 432. Furthermore, the complainant organization gives full details of tragic accidents related to occupational risks in recent years, up to 2009, and recalls that in the past trade union leaders were murdered and other trade unionists had to move away after death threats.
8. 433. The complainant organization states that the list of cases reported to the authorities is rather long and almost always the local and regional labour authorities adopted a negligent posture, maintaining that they are unable to investigate and punish the company, despite the legal powers that they possess.
9. 434. The complainant organization indicates that, up to now, only two sanctions are known to have been applied by the courts of first instance against the company in industrial accident cases, thus it is obvious that the legislation on employer responsibility is not applied. It adds that the employer’s responsibility is indisputable, both in relation to the death of Dagoberto Clavijo Barranco in 2009, and in relation to the stoppage which occurred as a reaction to the death. The complainant organization sums up the situation by indicating that, although the stoppage by the workers does not conform to the provisions of Act No. 1210 of 2008, in that it was not a legally convened strike, neither is it possible to blame the trade union for supposedly “promoting” the stoppage in an illegal way, since it was a spontaneous “heat of the moment” reaction brought on by collective anger and indignation at the death of a worker following the company’s failure to fulfil its obligations with regard to industrial safety, thus confirming the employer’s responsibility in relation to this stoppage.

B. The Government’s reply

1. 435. In its communications dated 14 January and 4 May 2011, the Government recalls that the allegations on industrial safety and health, which abound in the complaint, are outside the Committee’s remit, especially bearing in mind that the complaint does not allege that the situations involving industrial safety and health indicated by the complainant in any way constitute a violation of the applicable collective agreement between the company concerned and the complainant trade union. Thus the allegations on these matters are beyond the Committee’s remit.
2. 436. The Government adds that the declaration that stoppages and strikes are illegal is a matter for the respective courts and, on appeal, the Supreme Court of Justice, as laid down in Act No. 1210 of 2008, thereby accepting the requirements of the ILO supervisory bodies. In this regard, it was the judicial authority which defined the collective stoppages at the Pribbenow mine and the suspension of the company’s operations. Furthermore, the parties to the proceeding, the plaintiff and the defendant, have opportunities in the proceedings to argue the facts and provide evidence in support, and to make use of the relevant appeal processes.
3. 437. The Government emphasizes that, as can be seen from the court judgments issued in this case, in proceedings in which the Government plays no part, the declaration of illegality of the stoppage was based on the fact, proved in the proceedings, that it had been conducted in a violent manner. The court, in its judgment provided by the Government in its communication dated 4 May 2011, after hearing the arguments, came to the conclusion that “… there is no doubt that violence reigned in that strike”. That assertion was based on considerable evidence produced by the claimant, including “thirty-eight statements prepared and signed by various persons describing situations which they had actually witnessed during the stoppage; they are marked by descriptions of the use of physical and/or verbal violence by the striking workers … death threats …”. The court further indicates that “the situation described in those statements are documented by numerous pictures that testify those acts ...”.The Government recalls the many occasions on which the Committee has referred to the protection that the Organization’s instruments, in particular Conventions Nos 87 and 98, grant to legitimate trade union activities, that is, those conducted in a peaceful manner. In the opinion of the Government, in this case, as can be seen from the abovementioned judgments, that protection does not apply and thus the declaration of illegality does not represent any violation of those Conventions. The Government considers this as sufficient reason to request the Committee to invite the Governing Body to decide that the case does not justify further examination.
4. 438. The Government also emphasizes that the court does have the power to declare the stoppage illegal. The workers allege that, because it was a stoppage and not a strike, the court did not have the power to declare it illegal. This point, addressed in the judgments of both the court and the Supreme Court, coincides with the statements of the ILO supervisory bodies that a distinction cannot be made between protection granted by the legislation to strikes and stoppages, with respect to which any declaration of their illegality must be determined by an independent body which enjoys the confidence of the parties, such as judges. The Supreme Court stated the following: “in the light of the decision of the court to declare illegal the collective work stoppage which SINTRAMIENERGETICA held in the Pribbenow mine, and the suspension of operations during 23, 24, 25, 26 and 27 March 2009 and in Puerto Drummond on 23 and 24 March 2009, the only criticism that the appellant actually makes against the substantive arguments in the proceeding revolves around the conceptual and semantic difference between the concepts of ‘strike’ and ‘stoppage’, since it considers that the court can only decide on the legality or otherwise of the former, but that, it says, is not the case decided by the court. That argument is irrelevant, because, in any case, the grounds of the judgment include the fact that neither the law nor the case law differentiate on the substance and that in consequence, under Colombian law, any collective work stoppage is a strike, without distinguishing between whether the event does or does not satisfy the definition set out in article 429 of the Consolidated Labour Act (CST).”
5. 439. Moreover, the Government states that the conduct of the stoppage did not comply with the prior procedures stipulated in the legislation. The Government recalls the Committee’s pronouncements which endorse the existence of prior procedures established by law for the holding of strikes and in respect of which the court, citing the Supreme Court of Justice, stated: “… with respect to the initiation and conduct (of the collective work stoppage), there is no doubt that the abovementioned legal rules for the strike in an economic collective dispute must also be satisfied in this second type of collective cessation of work for failure (by the employer) to fulfil obligations, since in the case of a strike which has been balloted and decided, the time limit for its execution, which must be called minimum two working days and maximum without exceeding ten working days following its declaration”. In other words, the decision to stop work should have been adopted by a ballot by the workers, and that did not happen in this case, thus the prior requirements were not met. On this point, the Government recalls Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to point out that SINTRAMIENERGETICA should have respected national legislation when it carried out its trade union activity. Likewise, it considers that this legislation does not diminish, and has not been applied in such a way as to diminish, the guarantees set out in Convention No. 87. At least, up to now, the Organization’s supervisory bodies, and especially the Committee of Experts, have not expressed any comments to the Government in this regard, among other things, because everything shows that the workers have never complained to the Committee of Experts about national laws in this connection.
6. 440. The Government indicates that, given that the courts, not the Ministry of Social Protection, were responsible for declaring the strike illegal, and that the said declaration was based on the fact that the stoppage had been conducted in a violent manner, the dismissal of the workers did not constitute an act of discrimination as laid down in Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
7. 441. With respect to the allegations concerning due process, the Government underlines that, according to the complainant: (i) some workers were dismissed without regard for their state of health or without the company concerned complying with the “full legal requirements”; (ii) the company failed to follow “the procedures established by the Ministry of Social Protection to allow the dismissal of workers who participate in a strike classified as illegal”; and (iii) “many workers involved were deprived of the right to defence in the proceedings, as they did not have the opportunity to make individual statements”. The Government states, with respect to point (i), that the company indicated that the workers cited in the complaint presented their respective actions for tutela. In relation to point (ii), as indicated on previous occasions and in accordance with Act No. 1210 of 2008, which gave the courts powers to declare a strike illegal, the Ministry no longer had the power to pronounce on the dismissal of workers after such a declaration. The Act offers workers the guarantee that their rights under the Constitution, the law and collective agreements will be respected, as two instances were created in which they could be heard. It is not up to the Ministry to intervene in any aspects of such proceedings. As regards point (iii), in relation to the violation of due process, the Government recalls that, in the Colombian legal system, there are legal means of recourse against such rulings.
8. 442. With respect to the judicial proceedings, the Government confirms that the Supreme Court of Justice decided an appeal in cassation against the judgment of 21 July 2009 handed down by the Civil Family and Labour Division of the Valledupar High Court, referring to the qualification of the collective suspension or stoppage of work led by the trade union SINTRAMIENERGETICA at the Pribbenow mine and at Puerto Drummond, and upheld the judgment in all its aspects in a ruling of 29 September 2009. SINTRAMENERGETICA sought clarification on 14 October 2009, but that request was refused in an order dated 1 December 2009, and the judgment became final on 16 December 2009. SINTRAMIENERGETICA filed an action for tutela, which was heard by the Criminal Cassation Division of the Supreme Court of Justice, which found that the judicial proceedings were fully in accordance with the legal order, and there had been no violations of any fundamental right. According to the Government, the company informed it that 12 workers had filed an action for tutela for alleged violation of due process. The judge ordered their reinstatement and the company complied with the order, which is now being appealed. Another trade unionist, in an appeal, failed to obtain an order for reinstatement. The national Government respected the ruling in line with the separation and independence of the judiciary in the case. The effects of the judgment of the Supreme Court of Justice and the dismissals deriving from the declaration that the stoppage of work was illegal can only be challenged in the courts of the Republic.
9. 443. The Government further emphasizes that the Ministry of Social Protection has issued various standards on occupational risks and health which are mandatory for all companies in the country, including major coal mining companies such as the company in question. These standards are intended to prevent, protect and look after workers affected by diseases and accidents which happen to them in the course of or as a consequence of their work. In addition to standards of a general character which must be applied by all companies in the country, there is Decree No. 1335 of 1987 which sets out the regulations on safety in underground workings and Decree No. 2222 of 1993 which establishes the regulations on occupational safety and health in opencast mining. The Government also gives details of the actions of the Ministry of Social Protection in application of the permanent occupational health programme, and the various fines imposed on the company, administrative actions and prosecutions carried out.
10. 444. The Government concludes that it complies with and respects the judicial decisions made in relation to the special process of qualification of a collective work stoppage and the judgment which declared it illegal and the confirmation of the judgment, respectively. With regard to the supervision, monitoring and control of prevention of occupational risks in the company by the Ministry of Social Protection, in application of the permanent occupational health programme, the Government reiterates that it has acted in accordance with the law.

C. The Committee’s conclusions

1. 445. The Committee observes that in this case the complainant organization alleges dismissals of trade union officials in the company Drummond Ltd Colombia for a spontaneous work stoppage by the workers (not promoted by the trade union) arising from a fatal accident at work in the Pribbenow mine in 2009 (according to the complainant organization because of defective safety conditions in the mine and the lack of measures taken by the authorities and the company despite requests by the trade union), which was subsequently classified as an illegal strike by the judicial authority. According to the allegations, the company took advantage of this spontaneous stoppage by the workers to dismiss trade union leaders and unionists for anti-union purposes. According to the complainant organization, the number of workers who had died in recent years from occupational accidents or diseases totalled 16, not counting the large number of workers with occupational diseases. The Committee also observes that the Government gives details of the actions of the Ministry of Social Protection in application of the permanent occupational health programme, and the various fines imposed on the company, and the administrative proceedings and prosecutions carried out. The Committee emphasizes that its powers are confined to allegations of violations of trade union rights and not questions of safety and health at work. The Committee considers that it is not competent to pronounce on the violation of the ILO Conventions on conditions of work, as such allegations do not refer to freedom of association.
2. 446. The Committee notes the detailed information provided by both the complainant organization and by the Government in relation to the facts which led to the work stoppage and the measures and actions taken in that respect.
3. 447. The Committee notes that the complainant organization indicates that: (1) the work stoppage that took place in the company was not a strike but a spontaneous protest following the death of a colleague, thus it did not fulfil the legal conditions for a strike, that is, prior submission of a set of claims and collective bargaining; (2) the Valledupar High Court declared the stoppage illegal and classified it as a strike, and that ruling was upheld by the Supreme Court of Justice despite the fact that during the process many of the fundamental rights of the affiliated workers and the SINTRAMIENERGETICA officials accused of promoting the supposed strike were violated; (3) when the work stoppage was classified by the judicial authorities as an “illegal strike”, the company dismissed many trade union officials and activists of SINTRAMIENERGETICA for participating in the strike; and (4) the company did not comply with a regulation issued by the Ministry of Social Protection which states that the company should have passed the list of workers accused of participating in the illegal strike to the Ministry of Social Protection which had the function, firstly, of investigating the degree of participation of those workers and determining individually whether the participation was active or passive, and, secondly, recommending to the company the type of measure that it could adopt, namely: (a) exoneration for not having participated; (b) a disciplinary sanction for passive participation; or (c) dismissal for active participation, on a case-by-case basis at the discretion of the investigator.
4. 448. The Committee also notes that the Government states that: (1) the declaration that the stoppages and strikes are illegal is a matter for the respective courts and, on appeal, the Supreme Court of Justice, as laid down in Act No. 1210 of 2008; (2) the parties to the proceeding, the plaintiff and defendant, have opportunities in the proceedings to argue the facts and provide evidence in support, and to make use of the relevant appeal processes; (3) according to the judgments in this case, the declaration of the illegality of the stoppage (during 23, 24, 25, 26 and 27 March 2009 and in Puerto Drummond on 23 and 24 March 2009) was based on the fact, substantiated by evidence, that the stoppage had been conducted in a violent manner, thus the protection available under Conventions Nos 87 and 98 did not apply; (4) the decision to stop work should have been adopted by a ballot by the workers, and that did not happen in this case, thus the prior conditions for a legal strike have not been fulfilled; (5) the dismissal of the workers was not an act of anti-union discrimination, given that the courts are responsible for declaring a strike illegal, and not the Ministry of Social Protection, and that the said declaration was based on the fact that the stoppage had been conducted in a violent manner; (6) the company stated that 12 workers filed an action for tutela for alleged violation of due process; the judge ordered their reinstatement and the company complied with the order, which is now being appealed; and (7) the legislation does not diminish and has not been applied in a manner which diminishes the guarantees set out in Convention No. 87. The Committee notes that, referring to the alleged spontaneous work stoppage, the Government states that the Supreme Court attributes that to the complainant organization. The Government indicates that the declaration of the legality or otherwise of a strike is a matter for the courts and not the Ministry of Social Protection.
5. 449. The Committee observes that according to the Government the stoppage of work by the workers was considered an illegal strike by the judicial authority (including the Supreme Court of Justice which, contrary to the allegations, attributes the stoppage to the activities of the complainant organization) because the ballot required by the legislation had not been carried out and acts of violence had occurred.
6. 450. With regard to the alleged anti-union character of the dismissals which occurred after the strike and, according to the complainant organization, on the grounds of the work stoppage, the Committee notes that the Government indicates that the dismissals were not acts of anti-union discrimination since the declaration of illegality of the strike is a matter for the courts and not the Ministry of Social Protection, and the said declaration was based on the fact that the stoppage had been conducted in a violent manner. The Committee observes that, according to the complainant organization, the number of dismissed strikers to date amounts to 19 (15 officials and four trade unionists). The Committee further notes that, according to the Government, the company informed it that 12 of the dismissed trade unionists filed an action for tutela for supposed violation of due process and the judge ordered their reinstatement and the company complied with the order, which is now the subject of an appeal.
7. 451. Noting that the company complied with the court order to reinstate the 12 trade union officials and trade unionists and that the company has appealed that decision, the Committee requests the Government to keep it informed of the result of the appeal. Lastly, the Committee notes that, according to the Government, the company stated that one trade unionist did not, on appeal, obtain an order for reinstatement and requests the Government to indicate if the remaining six trade unionists have initiated legal actions in relation to their dismissal.