Effect given to the recommendations of the committee and the Governing Body - Report No 392, October 2020

Effect given to the recommendations of the committee and the Governing Body

1. 32. The Committee recalls that this case refers to allegations concerning anti-union terminations of employment and dismissals in a sugar enterprise and an agricultural services enterprise. The Committee examined this case at its meeting in June 2016 and made the following recommendations [see 378th Report, paras 162–198]:
   • (a) In relation to the termination of employment contracts of the workers of the sugar enterprise which occurred in April 2009, the Committee invites the Government to facilitate the holding of conciliation proceedings before the CETCOIT, assuming this is legally possible, and to keep it informed in this respect.
   • (b) In relation to the dismissals which occurred in the agricultural services enterprise, the Committee requests the Government to keep it informed of the results of the legal actions still pending before the Ministry of Labour, the Office of the Public Prosecutor and the labour courts in relation to the dismissal of Mr Pablo Roberto Vera Delgado, Mr José Andrés Banguera Colorado, Mr José Manuel Obregón Solís, Mr José Domingo Solís Rentería and Mr Alfaro Cañar.
   • (c) The Committee requests the Government to take the necessary measures to expedite substantially the processing by the Ministry of Labour of the labour administrative complaints relating to trade union rights. The Committee requests the Government to keep it informed in this respect.
2. 33. The complainant organizations submitted additional information in communications of 16 May and November 2016; 2 October 2017; February, 25 May and 4 September 2018; and 18 January and 4 October 2019. The Government sent its observations in communications of 15 December 2016; 21 February 2017; 13 February, 26 and 29 September and 29 November 2018; 29 May 2019; and 26 August 2020.

Terminations of employment in the sugar enterprise

1. 34. The Committee recalls that the complainant organizations allege that, on 15 and 16 April 2009, the sugar enterprise terminated the employment contracts of 315 workers through the signing of settlement documents and dismissals, which constituted anti-union action as all of the affected workers were members of the Carlos Sarmiento L. & Cia Workers’ Union (SINTRASANCARLOS). On that occasion, the Committee noted the allegations of the complainant organizations concerning the irregularities committed by the labour inspectorate in supervising the conclusion of the settlement documents, the pressure that was placed on the workers during the conciliation proceedings and the subsequent dismissal of elected members of two SINTRASANCARLOS executive committees, and the allegation that the enterprise took control of the union, which is why the workers decided to seek the support of the “14 June” National Union of the Sugar Industry (SINTRACATORCE). It also recalls that, on that occasion, it observed that the actions challenging the validity of the employment contract terminations, referred to by the complainant organizations, had focused on the irregularities committed by the labour inspectorate and on the absence of the free consent of the workers. In other words, with the exception of the criminal proceedings brought by the worker Mr Luis Ignacio Beltrán Viera, which were dismissed in the second instance, none of the actions challenging the validity of the employment contract terminations involved allegations of anti-union retaliation.
2. 35. In their additional communications of 16 May and November 2016, 2 October 2017, 5 April and 4 September 2018 and 4 October 2019, the complainant organizations reiterate the anti-union nature of the termination of the employment contracts of the 315 workers. The Committee notes that, in their additional communications, the complainant organizations refer also to a number of criminal and administrative proceedings, other than the 34 legal proceedings initiated by the workers whose contracts were terminated and which were previously examined by the Committee. In this regard, the complainant organizations claim that: (i) after seven years of delays by the prosecutor, the criminal complaint for abuse of authority, procedural fraud and violation of the rights of assembly and association filed on 14 October 2010 against the Ministry of Labour officials present at the signing of the settlement documents, the consulting firm engaged to carry out the termination of the workers’ employment contracts, and the management of the sugar enterprise, resulted in the preclusion of the criminal proceedings for all parties except for one of the officials associated with the offence of breach of public duty (Buga High Court decision of 9 March 2017); (ii) two criminal complaints filed against the Director of Human Resources of the sugar enterprise for false testimony (filed in May 2011 and April 2018) did not lead to investigations by the public prosecutor’s office; and (iii) all of the administrative complaints against the enterprise and the Ministry of Labour officials were dismissed. In relation to the criminal complaint filed on 14 October 2010, the complainant organizations allege that, as at 4 October 2019, the hearing to confirm the charges against the aforementioned official had still not taken place, that the judges acted in a biased manner and that there were irregularities in the legal proceedings. Furthermore, they question the efficiency of the judicial system and consider that the aforementioned actions highlight the significant economic and political power of the sugar enterprise.
3. 36. The Committee further notes the statements by the complainant organizations that, in exercising their right to petition, they sent a letter to the Ministry of Labour requesting information on the holding of the conciliation hearings and on the lifting of the trade union immunity of the dismissed union officials. According to the complainant organizations, the reply provided by the Ministry of Labour showed that both the Ministry and the inspectorate had committed irregularities in the conciliation procedure, that the inspectorate had failed to ascertain whether the workers whose employment contracts were terminated had trade union rights and that the trade union immunity of the dismissed workers had not been lifted. The complainants further indicate that the settlement documents were flawed and that the Government had acted in favour of the big economic players, disregarding the workers’ labour and trade union rights.
4. 37. The Committee notes that, for its part, the Government denies that a mass dismissal of unionized workers took place and reiterates that conciliation took place at the sugar enterprise as part of a restructuring process. According to Colombian legislation, the concept of conciliation comes into play either in response to a labour-related complaint that a worker may make against their employer or simply by mutual agreement, and it is implicit that a spirit of conciliation prevails in both cases. With regard to the alleged invalidity of the settlement documents, the Government points out that the workers involved had the opportunity to seek legal and administrative recourse and that their various claims were dismissed by the courts, including the legal action of Mr Luis Ignacio Beltrán Viera. It reiterates, with regard to the latter case, that the court of second instance had the opportunity to examine the allegations relating to the anti-union nature of his dismissal and ruled, on the basis of the criteria established by the Constitutional Court, that insufficient evidence had been provided to support the claim that he had been dismissed on anti-union grounds. Furthermore, it states that the Constitutional Court established in its ruling of 31 March 1971 that conciliation “brings a dispute to an end in whole or in part and has the force of res judicata”. With regard to the right to petition of SINTRACATORCE, the Ministry of Labour points out that it replied to the letter from the complainant organizations regarding the alleged irregularities in the conciliation procedure and reiterates once again that the process of signing the settlement documents was carried out in accordance with the law. It also reports the observations of the enterprise, which denies that there were any anti-union grounds for terminating the workers’ employment contracts and attributes the high number of trade unionists affected by this measure to the high rate of union membership in the enterprise, which is around 88 per cent.
5. 38. The Committee further recalls that, in its previous examination of the case, it had invited the Government to facilitate the holding of conciliation proceedings before the Special Committee for the Handling of Disputes referred to the ILO (CETCOIT) and to keep it informed in that respect. In this connection, the Committee notes on the one hand the allegations by the complainant organizations that, during the conciliation hearing held on 13 September 2016, which was attended by the workers who had been dismissed by the sugar enterprise (now members of SINTRACATORCE) and the management of the sugar enterprise, the mediator merely requested the signatures of the parties, without weighing the arguments of the parties or assessing the evidence provided by the dismissed workers; and that the mediator even questioned the Committee’s recommendation, by stating that he did not understand its rationale. On the other hand, it duly notes the Government’s reply, indicating that the first meeting held before the CETCOIT did not give the expected results, and that it arises from the CETCOIT’s closing minutes of 13 September 2016, that the second session did not yield positive results either because each party reaffirmed its position and, as there was no spirit of conciliation, it was not possible to proceed with the conciliation process.
6. 39. In the light of the additional information provided by the complainant organizations, the Committee notes that, of all the criminal and administrative proceedings referred to by the complainant organizations and the Government in relation to the termination of the employment contracts of 315 workers from the sugar enterprise, only the legal action brought by Mr Luis Ignacio Beltrán Viera against his dismissal and the criminal complaint filed on 14 October 2010 against the Ministry of Labour officials in question, the consulting firm and the management of the sugar enterprise, involved allegations concerning acts in violation of freedom of association and collective bargaining. The Committee recalls that, in relation to the legal action brought by Mr Luis Ignacio Beltrán Viera, the courts of first and second instance, after closely applying the criteria established by the Constitutional Court of Colombia for determining anti-union discrimination, found that there was no evidence to show that the dismissal had been on anti-union grounds.
7. 40. With regard to the criminal complaint lodged on 14 October 2010, the Committee notes that it is clear from the decision handed down on 17 February 2017 by the High Court of the Buga judicial district, referred to by the complainant organizations, that: (i) an initial complaint was filed on 14 October 2010 with the Office of the Public Prosecutor alleging various offences, including violation of the rights of assembly and association under article 200 of the Criminal Code, because the complainants considered that, by terminating the employment contracts of Mr Eufrasio Emilio Ruíz (president of SINTRASANCARLOS), Mr Alfredo Cuero, Mr Edison Leal and others, the enterprise’s management had engaged in anti-union conduct, with the intention of taking control of the union; (ii) in a ruling of 14 July 2016, the first criminal court of the Tuluá circuit, at the request of the public prosecutor’s office, ordered the preclusion of the investigation with regard to the individuals in question, on the grounds that the matter under investigation did not fall under the definition of a criminal offence and that it was impossible to refute the presumption of innocence (section 332, paras (4) and (6), of Act No. 906 of 2004); and (iii) the court of first instance ruled that the various deferrals were attributable to both parties, and that the actions against conduct such as the violation of the rights of assembly and association, which was indeed actionable, were time-barred. The Committee notes that, in the second instance, the allegations of the representatives of the dismissed workers concentrated on the alleged illegality of the conciliation procedure and, consequently, the decision that is still pending focuses on whether the Ministry of Labour official is guilty of the offence of breach of public duty, which is outside the scope of the Committee’s competence. While regretting the excessive judicial delays with regard to this complaint and noting that the Government does not provide sufficient information to enable it to determine whether, following the criminal complaint of 14 October 2010, a thorough investigation was carried out with regard to the alleged violations of freedom of association, the Committee, in the light of the information provided by the complainant organizations and in particular the administrative and legal decisions, also lacks specific information that would allow it to establish the anti-union nature of the terminations. In the light of the above considerations, the Committee will not pursue its examination of this allegation.

Dismissals in the agricultural enterprise

1. 41. With regard to the enterprise Providencia Cosecha y Servicios Agrícolas LTDA (hereinafter the agricultural services enterprise), the Committee recalls that the complainant organizations reported the anti-union dismissal of the workers Mr Pablo Roberto Vera Delgado, Mr José Andrés Banguera Colorado, Mr José Manuel Obregón Solís, Mr José Domingo Solís Rentería and Mr Alfaro Cañar on 30 July 2014, following their appointment to the El Cerrito branch committee of SINTRACATORCE on 28 July 2014, and the lack of an adequate response by the Government of Colombia in respect of the allegations. In its examination of the case, the Committee had requested the Government to keep it informed of the outcome of the administrative and legal proceedings under way.
2. 42. In their additional communications dated 25 May 2018, 4 September 2018 and 4 October 2019, the complainant organizations state that: (i) the enterprise had acted in bad faith, as it was aware that the SINTRACATORCE assembly of delegates had been held on 28 July 2014, at which new branch committee members had been elected; (ii) the only member of the elected executive committee who was not dismissed on 30 July 2014 was the worker Mr Alfonso Criollo, who benefited from greater job security on account of an occupational disease; (iii) although the enterprise claims that the complainants were dismissed on the grounds of poor performance, at the time of their dismissal there were no disciplinary proceedings against the dismissed union members; and (iv) in accordance with the Labour Code, SINTRACATORCE had a period of five working days to notify the labour inspectorate of changes in the executive committee, and the dismissals took place within that period.
3. 43. The Committee further notes the additional information provided by both the Government and the complainant organizations with respect to the pending administrative and legal proceedings. In this regard, it notes that: (i) the administrative labour complaints filed by the dismissed workers in 2014 and 2015 and their respective appeals for reinstatement were rejected by the labour administration on the grounds that their settlement would require the specification of rights and definition of disputes, which is a matter for the national courts; (ii) the special request for trade union immunity filed in September 2014 by the five dismissed workers was rejected by the courts of the first and second instance because they considered that, even if the workers were dismissed without just cause, their employer was unaware at the time of the dismissal of their alleged status as members of the executive committee. Subsequently, the Supreme Court of Justice dismissed the complainants’ action for protection of constitutional rights and on 23 November 2018 the Constitutional Court rejected the petition for review and ordered the case to be definitively closed; and (iii) on 4 September 2014, the labour inspectorate requested a criminal investigation into the anti-union nature of the dismissals under article 200 of the Criminal Code; the court of first instance ordered the preclusion of the investigation, as requested by the prosecutor of the municipality of El Cerrito, on the grounds of lack of criminal intent by the enterprise’s management at the time of the dismissal; this decision was challenged by SINTRACATORCE and the court of second instance ordered the referral of the proceedings to the criminal courts of the Palmira-Valle circuit, meaning that the criminal investigation would remain open at public prosecutor’s office No. 32 in Cali, in the specialized unit for the ILO.
4. 44. In view of the above, the Committee notes with concern that the criminal investigation requested in 2014 by the labour inspectorate regarding the alleged anti-union nature of the dismissals has still not been completed. While noting the allegations made by the complainant organizations concerning procedural irregularities and the excessive delay in the proceedings, the Committee recalls that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1139]. Noting also that the legal proceedings conducted to date by the courts have focused on the question of whether workers had trade union immunity at the time of their dismissal, the Committee recalls that protection against anti-union discrimination applies equally to trade union members and former trade union officials as to current trade union leaders [see Compilation, para. 1080]. Given that the criminal investigation into the alleged anti-union nature of the dismissals of Mr Pablo Roberto Vera Delgado, Mr José Andrés Banguera Colorado, Mr José Manuel Obregón Solís, Mr José Domingo Solís Rentería and Mr Alfaro Cañar, requested by the labour inspectorate, has not been completed, the Committee urges the Government to take the necessary steps to conclude this investigation as soon as possible. The Committee requests the Government to inform it of the outcome of the above-mentioned investigation, as well as of the measures taken in the event that it reveals that anti-union acts took place.