Interim Report - Report No 332, November 2003

1. 425. The Committee last examined this case at its March 2003 meeting [see 330th Report, paras. 507-527]. The National Union of Bavaria S.A. Workers (SINALTRABAVARIA) sent new allegations in communications dated 14, 21 and 27 March, 12 May, April and 11 June 2003. The Colombian Union of Beverage Industry Workers (SINALTRAINBEC) sent new allegations in a communication dated 21 February 2003.
2. 426. The Government sent its observations in communications dated 18 February, 5 May, 14 August, 15 and 27 October 2003.
3. 427. 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. Previous examination of the case

1. 428. At its March 2003 meeting, on examining allegations of acts of discrimination and anti?union practices in various companies, the Committee formulated the following recommendations [see 330th Report, para. 527]:
2. (a) as regards the alleged dismissals and disciplinary measures against members of SINALTRABAVARIA for having participated in the strike of 31 August 1999, the Committee requests the Government to take measures to expedite all proceedings that may be initiated and to keep it informed of any judicial decision that will be issued;
3. (b) as regards the new and serious allegations by SINALTRABAVARIA concerning failure to apply the collective agreement, the refusal to deduct union dues, intimidation of workers to make them sign a collective agreement and preventing the union from entering the premises to advise workers in that connection, the refusal to allow trade union leave and the dismissals of many officers and members of various branches and pressure to accept a voluntary retirement scheme, the Committee requests the Government to take steps to ensure that these inquiries are concluded without delay and to continue to keep it informed of the outcomes thereof;
4. (c) the Committee requests the complainants to provide their comments concerning the Government’s observations according to which certain investigations cannot be concluded because the complainant organization does not attend hearings;
5. (d) as regards the recent allegations of anti-union persecution against the 47 founders of the Colombian Union of Food, Beer, Malt, Drinks, Juices, Refreshments, Mineral Water Workers of Colombia (USITAC) in Baranquilla on 16 March 2002, disciplinary measures to remove the trade union immunity of William de Jesús Puerta Cano, José Evaristo Rodas and other officials of the organization, the seizure of trade union information bulletins about the foundation of USITAC, pressure on the workers which resulted in eight of them leaving the union, as well as on the denial of paid trade union leave to trade union officer William de Jesús Puerta Cano, the Committee requests the Government to carry out an inquiry into these matters and to send its observations thereon; meanwhile, the Committee requests the Government to fully guarantee the trade union rights of the founders of USITAC;
6. (e) with respect to the mass dismissals due to the conversion of the Caja de Crédito Agrario into the Banco de Crédito Agrario, the Committee requests the Government to continue to keep it informed of efforts to find an agreed solution;
7. (f) as to the dismissals of officers due to failure to recognize their union immunity and failure to comply with the orders for reinstatement of some of those officers by the Caja de Crédito Agrario, the Committee again urges the Government to take measures without delay to ensure compliance with the court orders for reinstatement. The Committee requests the Government to keep it informed thereof.
8. B. New allegations
9. 429. In communications dated 21 February, 14, 21 and 27 March, April and 11 June 2003, the Colombian Union of Beverage Industry Workers (SINALTRAINBEC) and the National Union of Bavaria S.A. Workers (SINALTRABAVARIA) indicate that the Ministry of Labour, in resolution No. 00680 of 7 June 2002, decided to register the Colombian Union of Food, Beer, Malt, Drinks, Juices, Refreshments, Mineral Water Workers of Colombia (USITAC), comprising workers from the Bavaria Enterprise Group, but, following an action for protection of constitutional rights (tutela proceedings) lodged by the enterprise, it revoked this decision in resolution No. 00027 of 15 January 2003. This resolution was based on the misuse of the right of association for the successive establishment of trade unions. Subsequently, the organization once again tried to apply for registration but, in resolution No. 000272 of 28 February 2003, this was refused, indicating that the previous resolution was final and that the only way to overthrow this was through judicial proceedings.
10. 430. Moreover, SINALTRAINBEC indicates that the USITAC trade union officials Omar de Jesús Ruiz Acevedo, Carlos Alberto Monsalve Luján and Humberto de Jesús Alvarez Muñoz, with regard to whom the enterprise requested the lifting of trade union immunity for having established the new trade union organization USITAC [see 330th Report, paras. 511 and 522] were, in fact, dismissed and that this was approved in resolution No. 01702 of 6 August 2002 of the Ministry of Labour. The complainant organization adds that, on 12 February 2003, Jorge Alberto Arboleda Muñoz was notified that he was being transferred, in spite of there being no proceedings to request due authorization for this. Furthermore, various members of USITAC and SINALTRAINBEC (José Heriberto Aguirre, José Absalón Muñoz, Víctor Emilio Sánchez Duque, Ancízar Restrepo Jaramillo, José Luis Restrepo Pabón) were dismissed by means of false disciplinary reports.
11. 431. SINALTRABAVARIA states that various members who were also founders of USITAC were dismissed. USITAC trade union members and founders who were dismissed: César Antonio Castro Gómez, José Luis Zambrano Julio, Luis Carlos Villafañe de la Rosa, Neiver Truyol López, Edgardo Antonio Amaya Villalobos, Maicle Antonio Salinas Valdez (trade union official), Antonio Celestino Polo Meriño, Jaime de Jesús Echeverri Orozco (trade union official), Walter Chamorro Romero, Cristóbal Rafael Castro López, Jorge Luis Carrat Arrieta, Antonio José Campo Vásquez (trade union official), William Alberto de Avila Jiménez, Ubadel Cristino Baldovino Galvis, Julio Alonso Bolaños Rua, Jesús María Caballero Caro, Wilfrido Alberto Camacho Castaño, Frank Alberto Egurrola Mendoza, Walberto Enrique Amaranto Zárate, Abel Antonio Bolívar Orozco, Orlando Enrique Torres Díaz, Javier Humberto Sosa Márquez, Jaime Manuel González Cortés, Nacim Martín Pérez Charris, Lacides de Jesús de la Hoz López, Manuel Antonio Lozada Flórez, Adolfredo Barrios Julio, Ever Jesús Moreno Estrada, Reinaldo García García, Antonio Parra Montesinos, Julio César Vega Chacón, Roberto Mario Doria Caro, Miguel Angel Ruiz Chavez, Alfredo Guerrero Ruiz, Gustavo Alberto Gutiérrez Márquez, Edrulfo Montero Saldoval, Juan Carlos Serrano Ardila, Ernesto Carlos Gulfo Arnedo, Darío Rafael Fontalvo Matute, Alicia Elvira Ortega Rendón, Wilfrido Enrique Pérez Alvarez, José del Rosario Flórez Campis, Germán Alonso Prado Antequera, Jairo Alberto Cantillo Cantillo, Javier Enrique Caro Marchena, Elkin Camelo Baiter, Guido Rafael Charris Gutiérrez, Rubén Darío Gómez Ariza, Francisco Javier Lobo Alvarez, Uriel de Jesús Muñoz Pascuales, Jorge Luis Ortega Martínez, Jairo Otálora Qintero, Rubén Rafael Otto Robles Echeverría, Martín Augusto Vásquez Oliveros, Heliberto Roa Ayala, Edwin Alberto Rodríguez Lacera, Asdrúbal Alfonso Tette Torres. The workers who were dismissed lodged claims in the ordinary courts for respect of the trade union immunity of founders and tutela proceedings for respect of their right of association. The tutela proceedings were denied. The complainant organization adds that a number of trade union officials were sanctioned with between one and 60 days’ suspension. Moreover, pressure is being brought to bear on workers to leave the trade union; if they do not, disciplinary proceedings are initiated against them or they are dismissed without just cause. According to the complainant organization, the enterprise does not recognize the necessary guarantees for the exercise and development of trade union administration, refusing trade union leave and refusing trade union officials of SINALTRABAVARIA access to workplaces.
12. 432. The enterprise imposed a collective agreement that offered economic benefits and better working conditions on those that signed it and is promoting this agreement through a campaign to discredit SINALTRABAVARIA. The complainant organization indicates that, in spite of the reports denouncing this to the Ministry of Labour, the latter endorsed the collective agreement. The Bavaria S.A. enterprise requested immediate repeal of the registration resolutions of the industrial trade unions SINALTRABET and UNITAS, which is currently being carried out.
13. 433. The Ministry of Social Protection gives precedence to the Bavaria S.A. enterprise as when the trade union requests a visit by labour inspectors to verify anti-union activities in the enterprise the Ministry of Labour is slow to take action, which forces the trade union to stop making requests as it will not be able to prove the reported activities. The same delays take place with regard to registration of new executive committees, clearly obstructing trade union activities.
14. 434. The enterprise hires workers that it has itself dismissed, but it hires them as a labour cooperative, which means that health, pension and benefits plans are not available and there are long working days, without the possibility of joining a trade union. Moreover, when the enterprise dismisses workers, it does not comply with the provisions of the collective agreement, saying that these are extremely onerous.
15. 435. With regard to the trade union organization not attending conciliation hearings, as stated by the Ministry of Social Protection [see 330th Report, para. 527(c)], indicated by the Government, SINALTRABAVARIA indicates that in some cases it has no faith in the efficiency and impartiality of the Ministry of Social Protection. For example, with regard to the numerous untimely closures of factories, the complainant organization indicates that it submitted administrative claims, but, on discovering that the representative of the enterprise, which had participated in those closures, was in fact the Deputy Minister of Labour, it preferred to abandon its claims. Surprisingly, and in spite of this voluntary abandonment, the Ministry issued resolution No. 0015 of 10 January 2003, supporting the Bavaria S.A. enterprise without taking into account the abandonment of claims. This also occurred with the claim submitted in April 2002 against the Bavaria S.A. enterprise for violation of the collective agreement. Faced with the delay and inefficiency of Inspector No. 10, the complainant organization abandoned its claim and, in spite of that, resolution No. 2557 of 19 November 2002 was issued in favour of the enterprise. The complainant organization sent a protest letter on 28 November 2002 and the Inspector annulled the resolution on 28 March 2003. The complainant organization states that it also did not attend the hearing called by Inspector No. 10 of Cundinamarca as it was not notified of this in time.
16. 436. Finally, with regard to the untimely closure of the Aluminium Container Factory “COLENVASES” at the end of 1999, which involved the dismissal of 42 workers and seven trade union officials without lifting of trade union immunity and without having complied with the resolution of the Ministry of Labour authorizing the closure and ordering that paragraphs 14 and 51 of the collective agreement in force be complied with prior to closure, the complainant organization indicates that the enterprise refused to comply with paragraph 14 stating that, as the closure was authorized by the Ministry of Labour, it did not have to comply with the agreement. Paragraph 14 lays down that:
17. ... exclusively for cases of total or partial closure of one or a number of its factories, subsidiaries or departments or of a reduction in staff, the enterprise, with the agreement of the executive committee of SINALTRABAVARIA, will transfer available or redundant workers to other departments and will grant them a period of up to 12 months, from the date of the notification of the transfer, to accept the benefits in the new factory or department mentioned in this paragraph. If, for any reason, the worker does not accept the transfer, he has the right to be paid an amount equivalent to 95 days of the basic wage for each year of service and the proportion thereof for a part year.
18. The complainant organization alleges that, of the 125 workers affected, only 57 workers received a vacant post. The enterprise dismissed some workers and forced others to resign from the trade union with the offer of a transfer or an economic plan and with the threat of dismissal if they did not resign. Neither did the enterprise comply with article 51 of the agreement, which lays down that a worker shall receive 75 per cent of his/her pension if he/she has more than 15 years of service and less than 20 and is made redundant without just cause, once he/she reaches 50 years of age.
19. C. The Government’s reply
20. 437. In communications dated 18 February, 5 May, 14 August, 15 and 27 October 2003, the Government indicates, with respect to paragraph (a) of the Committee’s recommendations, regarding the alleged dismissals and disciplinary measures against workers belonging to the National Union of Bavaria S.A. Workers (SINALTRABAVARIA) having participated in the strike of 31 August 1999, that there are currently three proceedings under way before ordinary labour courts 16 and 99 of the Circuit Labour Court, relating to Alfonso Maigual, José Luis Salazar Portilla and Luis Alfredo Velásquez Quintero. These proceedings are at the preliminary stage and, once the respective decisions have been handed down, the Government will send these to the Committee.
21. 438. With respect to paragraph (b) regarding intimidation of workers to make them sign a collective agreement, the Government indicates that the employer has the right to sign collective agreements with workers not belonging to trade unions and that these may coexist with collective labour agreements. However, this general rule is subject to the exception found in article 70 of Law No. 50 of 1990 which states “when the trade union or trade unions cover more than one-third of the workers in an enterprise, the enterprise may not sign collective agreements or extend those currently in force”. The Government adds that faced with signing the collective agreement, some workers lodged claims for protection of constitutional rights, which was rejected by the courts as being inappropriate in this situation. In effect, the courts considered that the case should be decided in the ordinary labour courts. The Government indicates that the Ministry of Social Protection instituted an administrative labour investigation and that Labour Inspector No. 12 closed the file on the investigation by the Decree of 20 March 2003 because the organization did not meet the requirements of the office, thereby indicating lack of legal interest. With respect to the alleged violations of the collective agreement, the Government states, as it has previously done, that the Ministry of Social Protection carried out two administrative labour investigations, issuing resolutions Nos. 2553 and 2554 of 19 November 2002, through the Cundinamarca Territorial Directorate, in which it decided not to take administrative measures “as these concerned legal issues, which are the prerogative of the courts, and the employees of the Ministry of Labour cannot pronounce on rights or decide issues such as those raised in these cases, because in order to decide such matters it would be necessary to make value judgements”. These resolutions are final as the motions for annulment and appeal were submitted outside the time limit. The Government indicates that the two other resolutions are pending. With regard to the untimely closure of enterprises, the Administration of the Inspection and Oversight Group of the Cundinamarca Territorial Directorate in resolution No. 00015 of 10 January 2003, abstained from issuing administrative measures as it considered that there was no closure of the enterprise or collective dismissal of workers, but that the workers accepted voluntarily a retirement plan or freely rejected this without there being any unilateral dismissal by the enterprise. With regard to the refusal to negotiate, in accordance with resolution No. 002455 of 5 November 2002, the Administration of the Inspection and Oversight Group abstained from taking administrative measures, a decision that was confirmed by the Cundinamarca Territorial Directorate in resolution No. 2979 of 27 December 2002. With regard to the refusal to deduct trade union dues, the Government indicates that, in the decision of 22 August 2002, the Cundinamarca Divisional Council of the Judiciary, upheld by the Superior Council of the Judiciary, refused the protection of constitutional rights requested by SINALTRABAVARIA as the enterprise acted in accordance with the provisions of article 400 of the Substantive Labour Code (duty of the trade union organization to communicate its list of members so that the enterprise may carry out the check-off facility) and that moreover, there were judicial means to appeal against this refusal.
22. 439. With respect to paragraph (d) regarding the allegations of anti-union persecution, the Government notified the territorial directorates of Antioquia and Atlántico to look into the legal basis for an administrative inquiry.
23. 440. With respect to paragraph (e) regarding the closing down of the Caja de Crédito Agrario and the mass dismissals of workers, the Government indicates that the national Government, using its legal and constitutional powers ordered this closure, with there remaining only a manager entrusted with the closure. The Government indicates that the Banco de Crédito Agrario is a distinct entity and has no legal link with the Caja de Crédito Agrario. The Government also refers to the decision of the Supreme Court of Justice, T?550-00, which lays down that, when it is obviously impossible to order that a closed public institution be reinstated, the only viable procedure is for the workers to claim the relevant indemnification in accordance with the law.
24. 441. With respect to paragraph (f) regarding the failure to comply with the orders for reinstatement of the workers of Caja de Crédito Agrario, the Government indicates that, as there was no possibility of complying with the legal rulings, it took conciliation measures with some workers and that the other workers are entitled to initiate legal action for indemnification. The Government stated that it would keep the Committee informed of any proceedings begun in this respect.
25. 442. As regards the Colombian Union of Food, Beer, Malt, Drinks, Juices, Refreshments, Mineral Water Workers of Colombia (USITAC), SINALTRABET and UNITAS, the Government indicates that the Ministry of Social Protection cannot register these trade union organizations due to their non-compliance with the labour legislation in force. These organizations have not complied with the requirements imposed to industry unions; in addition, the by-laws of USITAC contain a large number of provisions that are not in conformity with the Constitution and the legislation. The Government wonders whether these organizations really defend trade union rights as a social objective, or are in fact trying to maintain the job stability of their leaders by abusing the law and ignoring social objectives. Trade union privileged protection is a constitutional concept protecting freedom of association that applies in the first place to trade unions; the protection of job stability of workers’ representatives is only a secondary protection. This is why in its judgement c 381 of 2000, the Constitutional Court indicated that “… this privilege is more a guarantee of freedom of association than a protection of the right to work of organized workers”. The Government rejects the complainant’s interpretation of Article 8 of Convention No. 87, which provides that: “The law of the land shall not be such as to impair, nor shall it be applied as to impair, the guarantees provided for in this Convention”; this does not mean that trade union organizations which do not comply with the legislation (requirements which are not challenged by the ILO supervisory bodies) can be treated on the same footing as those which do respect the legal framework. In other words, Convention No. 87 does not apply to organizations which are not in line with the legislation. The Government indicates that article 333 of the Colombian Constitution deals with economic freedom, whose objective is to seek better efficiency and productivity; this is why, in exercising that freedom, companies are able to offer retirement packages with compensation, suspend some work teams and unilaterally terminate workers’ contracts, on condition that they pay the compensation which workers are entitled to. The Government adds, with regard to disciplinary measures, that all workers, regardless of whether or not they are members of a trade union, should respect internal work rules establishing the obligations of parties and elaborated by the employer without intervention by the administrative authorities.
26. 443. As regards the closing of the Colenvases plant, which led to the dismissal of 42 workers, and of seven trade union leaders in violation of their trade union preferential rights, and in violation of the labour ministry resolution authorizing said closing provided that clauses 14 and 51 of the collective agreement were applied, the Government indicates that SINTRALBAVARIA has challenged Resolutions Nos. 2169 of 7 September 1999, 2627 of 22 October 1999 and 2938 of 20 December 1999 before the administrative court, and that it will provide a copy of the relevant decisions.
27. 444. As regards the alleged Government’s favouritism towards the Bavaria S.A. enterprise, the Government rejects these allegations and indicates that the Vice-Minister of Labour, in conformity with the applicable legislation, declared that he was not competent with respect to any procedure involving the Bavaria S.A. enterprise, which demonstrates the transparency and impartiality of the Ministry.

D. The Committee’s conclusions

1. 445. Regarding the alleged dismissals and disciplinary measures against members of the National Union of Bavaria S.A. Workers (SINALTRABAVARIA) for having participated in the strike of 31 August 1999, the Committee notes the Government’s information that, currently, three proceedings are under way before ordinary labour courts 16 and 99 of the Circuit Labour Court, relating to Alfonso Maigual, José Luis Salazar Portilla and Luis Alfredo Velásquez Quintero. These are at the preliminary stages and, once the respective decisions have been handed down, the Government will send these to the Committee. The Committee notes that the Government does not indicate whether the proceedings refer to dismissals or disciplinary measures, nor whether these are the only proceedings under way. The Committee regrets that four years on from the events, there has still been no legal ruling in that regard and recalls that “justice delayed is justice denied” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 56]. The Committee expresses its firm hope that the Government will take all possible measures to ensure that the workers and trade union officials who were dismissed or disciplined as a result of the strike of 31 August 1999 will, as soon as possible, have their cases dealt with in the labour courts. The Committee requests the Government to keep it informed in this respect.
2. 446. With regard to the allegations by SINALTRABAVARIA concerning intimidation of workers to make them sign a collective agreement and preventing the union from entering the premises to advise workers in that connection, the Committee notes the Government’s statement that the employer has the right to sign collective agreements with workers who do not belong to trade unions and that these may coexist with collective labour agreements. The Committee also notes the Government’s statement that, faced with signing the collective agreement, some workers lodged claims to protect their constitutional rights and that this was rejected by the courts as being inappropriate in this situation and that the administrative investigation was closed. However, the Committee notes that the question of fact in the investigation was the pressure to sign a collective agreement and the restrictions imposed on trade union officials to enter the premises to advise the workers, and it recalls that governments should guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionization [see Digest, 4th edition, 1996, para. 954]. Moreover, regarding the signing of collective agreements, the Committee recalls that in its examination of similar allegations in the framework of two complaints presented against the Government of Colombia, it emphasized “that the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98” and that “collective agreements should not be used to undermine the position of the trade unions” [see 324th Report, Case No. 1973, and 325th Report, Case No. 2068 (Colombia)]. The Committee requests the Government to take steps to ensure that the trade union organization can negotiate freely and that workers are not intimidated into signing a collective agreement against their will and without the advice from the trade union organization to which they belong. The Committee requests the Government to keep it informed in this respect.
3. 447. Regarding the failure to apply the collective agreement, the Committee notes the Government’s statement that the Ministry of Social Protection, in resolutions Nos. 2553 and 2554 of 19 November 2002, issued by the Cundinamarca Territorial Directorate, decided not to take administrative measures “as these concerned legal issues, which are the prerogative of the courts, and the employees of the Ministry of Labour cannot pronounce on rights or decide issues such as those raised in these cases, because in order to decide such mattes it would be necessary to make value judgements”. The Committee notes that according to the Government these resolutions are final and that two resolutions are still pending. The Committee requests the Government to keep it informed of the results of the decisions that are pending.
4. 448. Regarding the untimely closure of enterprises, the dismissal of many officers and members of various branches and pressure to accept a voluntary retirement scheme, the Committee notes the Government’s statement that the Administration of the Inspection and Oversight Group of the Cundinamarca Territorial Directorate, in resolution No. 00015 of 10 January 2003, abstained from issuing administrative measures as it considered that there was no closure of the enterprise or mass dismissal of workers but that the workers had accepted voluntarily a retirement plan or had freely rejected this without there being any unilateral dismissal by the enterprise. The Committee notes that the allegations examined refer to pressure on workers to accept a voluntary retirement plan and that the Government makes no reference to this situation. The Committee requests, therefore, that the Government carry out an investigation to determine whether the retirements were in effect voluntary, or whether pressure was brought to bear on the workers, and to keep it informed in this respect.
5. 449. Regarding the refusal to deduct trade union dues, the Committee notes the Government’s statement that in the decision of 22 August 2002, the Cundinamarca Divisional Council of the Judiciary, upheld by the Superior Council of the Judiciary, decided not to admit the protection of the constitutional rights initiated by SINALTRABAVARIA as the enterprise acted in accordance with the provisions of article 400 of the Substantive Labour Code, according to which the trade union organization is obliged to communicate the list of members to the enterprise so that it can carry out the check-off facility. Moreover, according to the Government, the trade union organization has at its disposal legal recourse through the ordinary courts to claim these deductions. The Committee requests SINALTRABAVARIA to provide the enterprise with the list of trade union members concerned, so as to ensure that the deduction of trade union dues is carried out without delay.
6. 450. Regarding the fact that SINALTRABAVARIA did not attend the hearings of the administrative authority in the framework of the investigations, the Committee notes the explanation of the complainant organization that on a number of occasions and in view of the lack of confidence in the impartiality of the administrative institutions it decided to abandon the claims it had begun and that, in spite of this, the administrative authority issued a resolution in favour of the enterprise. The Committee notes that on other occasions it did not attend hearings because it had not received timely notification of these. The Committee believes that when complainant organizations abandon their administrative claims, the administrative authority must abstain from issuing a resolution on the issue. On the other hand, the Committee requests the Government to ensure that notification of hearings, in the framework of the administrative proceedings in progress, take place expeditiously and within the legal time limits.
7. 451. With regard to the mass dismissals due to the conversion of the Caja de Crédito Agrario into the Banco de Crédito Agrario, the Committee notes that the Government once again states that the Banco de Crédito Agrario is a distinct entity and has no legal link with the Caja de Crédito Agrario, and that referring to a ruling of the Supreme Court of Justice, it states the obvious impossibility of ordering reinstatement in a closed public entity and that the only possible solution is for workers to claim indemnification in accordance with the law. In these circumstances, taking into account the importance of compensating workers without delay when they are dismissed, in this case as a result of the closure of the Caja de Crédito Agrario, the Committee requests the Government to keep it informed of any legal action begun by the workers to obtain compensation and expresses its firm hope that, as this is an issue of labour debt, these claims will be examined with all possible speed.
8. 452. With regard to the dismissal of trade union officers despite their trade union immunity and failure to comply with the orders for reinstatement of some of those officers by the Caja de Crédito Agrario, the Committee notes the Government’s statement that, as reinstatement was impossible, it took conciliation measures with some workers and other workers were able to claim compensation through the courts. Taking into account that, with regard to the trade union officials, there are already legal rulings ordering their reinstatement and that, according to the Government’s statement, this is impossible, the Committee requests the Government to take steps to find a solution that the administration and the trade union officials in question can agree upon, which might consist of compensation. The Committee requests the Government to keep it informed in this respect.
9. 453. With regard to the allegations of anti-union persecution against the 47 founders of the Colombian Union of Food, Beer, Malt, Drinks, Juices, Refreshments, Mineral Water Workers of Colombia (USITAC), the disciplinary measures to remove the trade union immunity of William de Jesús Puerta Cano, José Evaristo Rodas and other officials of the organization, the seizure of trade union information bulletins about the founding of USITAC, pressure on the workers which resulted in eight of them leaving the union, as well as the denial of paid trade union leave to trade union officer William de Jesús Puerta Cano, the Committee regrets that the Government has sent no observations and notes that, according to the new allegations presented by the complainant organizations SINALTRABAVARIA and SINALTRAINBEC, the registration of USITAC ordered in resolution No. 680 of 7 June 2002 of the Ministry of Labour was revoked by resolution No. 00027 of 15 January 2003 as a result of an action to protect constitutional rights brought by the Bavaria S.A. enterprise. Subsequently, the registration was once again requested and once again denied as, according to the administrative authority, the previous resolutions were final and legal recourse was the only option; this situation also prevails as regards SINALTRABET and UNITAS. The Committee notes that the Government states that these organizations have not been registered because they did not comply with legal requirements, and wonder whether their ultimate objective is exclusively the job stability of their leaders. The Committee has pointed out that the International Labour Conference, by including the words “organizations of their own choosing” in Convention No. 87, made allowance for the fact that, in certain countries, there are a number of different workers’ and employers’ organizations which an individual may choose to join for occupational, denominational or political reasons; it did not pronounce, however, as to whether, in the interests of workers and employers, a unified trade union movement is preferable to trade union pluralism. The Conference recognized thereby the right of any group of workers (or employers) to form organizations in addition to the existing organization if they think this desirable to safeguard their material or moral interests [see Digest, 4th edition, 1996, para. 286]. The Committee requests the Government to take steps to ensure that USITAC, SINALTRABET and UNITAS are registered in the trade union registry without delay as soon as the legal requirements are complied with and to keep it informed in this respect.
10. 454. With regard to anti-union discrimination against the founders of USITAC, the Committee notes that the complainant organizations allege the dismissal of some of the workers for whom the enterprise had requested the lifting of trade union immunity (Omar de Jesús Ruiz Acevedo, Carlos Alberto Monsalve Luján, Humberto de Jesús Alvarez Muñoz) and further dismissals of trade union officials and members who enjoyed trade union immunity in their capacity as founders and other trade union members as a result of the creation of USITAC. The Committee regrets that the Government has restricted its answer to the fact that the territorial directorates of Antioquia and Atlántico were notified to look into the legal basis for an administrative investigation and recalls that measures taken against workers because they attempt to constitute organizations or to reconstitute organizations of workers outside the official trade union organization would be incompatible with the principle that workers should have the right to establish and join organizations of their own choosing without previous authorization [see Digest, 4th edition, 1996, para. 301]. The Committee requests the Government to take the necessary steps to ensure that an investigation into the allegations of dismissal of founders, trade union officials and members of USITAC is carried out and, if it is confirmed that these dismissals took place for anti-union reasons, that the workers affected are reinstated without delay and, in case the reinstatement is not possible, that they be fully compensated. The Committee requests the Government to keep it informed in this respect.
11. 455. As regards the closing of the Colenvases plant, which led to the dismissal of 42 workers, and of seven trade union leaders in violation of their trade union preferential rights, and in violation of the abour ministry resolution authorizing said closing provided that clauses 14 and 51 of the collective agreement were applied, the Committee notes that, according to the Government, SINALTRABAVARIA has challenged Resolutions Nos. 2169 of 7 September 1999, 2627 of 22 October 1999 and 2938 of 20 December 1999 before the administrative court, and that it will provide a copy of the relevant decisions. The Committee requests the Government to provide a copy of these decisions as soon as they are issued.
12. 456. With regard to the allegations relating to the administrative sanctions imposed on the workers of SINALTRABAVARIA, the Committee notes that according to the Government all workers, including trade union members, are subject to the internal work rues which establish the obligations of the parties. The Committee acknowledges that all workers in an enterprise must comply with the internal disciplinary rules. Nevertheless, the Committee emphasizes that disciplinary rules, and the sanctions entailed by failure to comply with them, should not be used as further measures of anti-union discrimination. The Committee requests the Government to take measures for the holding of an independent investigation to determine whether the internal work rules have been applied uniformly to all workers, regardless of whether or not the workers are unionized, and to keep it informed in this respect. The Committee regrets that the Government has not sent its observations on the dismissals alleged by SINALTRAINBEC and on the numerous allegations of anti-union discrimination presented by SINALTRABAVARIA: pressure on workers to resign from the trade union; denial of trade union leave and access to working areas by trade union officials of SINALTRABAVARIA; delay on the part of the Ministry of Labour in carrying out labour inspections aimed at verifying anti-union activities in the enterprise and in the registration of new executive committees; hiring by the enterprise, as a labour cooperative of workers that it had dismissed.