Effect given to the recommendations of the committee and the Governing Body - Report No 396, October 2021

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

1. 33. The Committee recalls that this case, presented in May 2014 and examined in October 2018, relates to allegations of anti-union dismissals and obstacles to collective bargaining in respect of three trade unions affiliated to the Single Confederation of Workers of Colombia (CUT) (the National Union for those working in the transport of goods, documents, packages, couriers, mass transport, containers, and other similar services provided to industry and the economic sector in Colombia (SINTRAIMTCOL), the Union of Public Employees of the National Training Service – SENA (SINDESENA) and the Union of Workers for the San Rafael University Hospital (ASINTRAF)). On that occasion, the Committee made the following recommendations [see 387th Report, para. 282]:
   • (a) The Committee requests the Government to take the necessary measures to ensure that all the pending disputes and complaints presented in respect of the National Union for those working in the transport of goods, documents, packages, couriers, mass transport, containers, and other similar services provided to industry and the economic sector in Colombia (SINTRAIMTCOL) to the Ministry of Labour, the Ombudsman’s office and the Office of the Public Prosecutor are resolved as soon as possible. The Committee also requests the Government to provide information regarding the status of the process of withdrawing the legal personality and trade union registration of SINTRAIMTCOL. Furthermore, the Committee asks the complainant organization to provide further information on the complaints filed in relation to the dissolution and liquidation of the trade union and to indicate whether legal action has been taken with regard to the dismissals of the trade union members Mr Marden Perea Martelo, Mr Edwin Isaac Villadiego Martínez and Mr José Augusto Bustamante del Toro, and if so, to provide information in that regard.
     • (b) With regard to the Union of Public Employees of the National Training Service – SENA (SINDESENA), the Committee requests the Government and the complainant organization to provide copies of the agreements reached with the training institution on 22 September 2015 and 19 October 2016 with SINDESENA.
   • (c) With regard to the Union of Workers for the San Rafael University Hospital (ASINTRAF), the Committee requests the Government to conduct an inquiry into why the contracts of Ms Yolanda Cárdenas, Mr Mario Bermúdez and Ms Claudia Patricia Arboleda were not renewed and to keep the Committee informed in that regard. Furthermore, the Committee requests the complainant organization to explain why it has not taken legal action regarding the decision not to extend the contracts in question.
2. 34. In a communication dated 22 October 2018, the CUT confirms the information provided in the complaint in respect of the trade union ASINTRAF and indicates that: (i) the hospital dismissed a number of its members despite there not having been any complaints relating to the performance of their functions, and they were notified that their contracts were supposedly ending due to the expiry of the agreed term; (ii) the hospital dismissed two members of the executive committee of ASINTRAF, Dr Mayorga and Ms Moreno, and prompted the resignation of others who could no longer bear the persecution (the trade union went from having 290 members to having 130); and (iii) although the Ministry of Labour was aware of the matters mentioned above, substantive decisions were not taken in all the cases and in some cases the simple passage of time has been used against the workers and their rights, with the actions being declared time-barred.
3. 35. In a communication dated 28 February 2019, the Government indicates the following:
   • With regard to recommendation (a), the Government indicates that: (i) on 6 February 2014 the trade union members held a general assembly and agreed to dissolve the organization and proceed with its liquidation; (ii) SINTRAIMTCOL was dissolved and liquidated in accordance with the judgment of the Seventh Labour Court of Cartagena dated 14 September 2015, upheld by the High Court of Cartagena on 31 October 2016, with this ruling being the subject of an action for the protection of constitutional rights, which was not granted by the Supreme Court of Justice (the Government attaches the ruling of 2 November 2016 handed down by the Supreme Court of Justice); and (iii) in view of the fact that SINTRAIMTCOL ceased to exist due to the voluntary dissolution of its members, the claims that gave rise to the complaint are without merit. The Government also attaches a copy of the results of the complaints and disputes that SINTRAIMTCOL lodged against the enterprise (dating from 2012 to 2016 and consequently preceding the examination of the case).
   • With regard to recommendation (b), the Government attaches a copy of the memorandum of understanding on labour matters of 22 September 2015 and a copy of the memorandum of understanding for the standardization of SENA activities of 19 October 2016.
   • With regard to recommendation (c), the Government indicates that: (i) according to the hospital, Ms Yolanda Cárdenas, Mr Mario Bermúdez and Ms Claudia Patricia Arboleda were contracted on a fixed term basis on 1 April 2010 to cover the posts of colleagues who were on holiday, maternity leave or incapacitated for longer than 15 days and that, once the periods of cover had been completed, there was no scope for them to be contracted on a permanent basis as there were no suitable vacant posts, and 7 November 2021 was the end date of the contracts; (ii) on 13 December 2016, Ms Yolanda Cárdenas filed a claim with the 21st Labour Court, asking it to declare the existence of an employment relationship; the claim was admitted on 7 December 2017 and contested on 30 January 2018, and a date is being awaited for the hearing; and (iii) the Ministry of Labour has lost the authority to begin an administrative labour investigation as over three years have elapsed since the events occurred, so it is impossible to initiate an administrative procedure for the imposition of penalties.
4. 36. The Committee recalls that the case concerns a complaint presented in 2014 and examined in October 2018. It observes that the CUT sent its communication in October 2018, that is to say, when the case was being examined by the Committee, which is why the communication does not refer to the recommendations contained in the report. The Committee observes that since its examination of the case, it has not received any communications from the complainant organization in respect of the recommendations made.
5. 37. With regard to recommendation (a), the Committee notes that, according to the Government, the judicial proceedings in relation to the dissolution and liquidation of SITRAIMTCOL were concluded in 2016. It also notes that the Government attached a copy of the respective court judgments. Having received no information in this regard from the complainant, the Committee will not pursue its examination of this aspect of the case.
6. 38. With regard to recommendation (b), the Committee notes that the Government attached a copy of the memorandum of understanding on labour matters and the memorandum of understanding for the standardization of SENA activities. The Committee recalls that in its last examination of this case it indicated that unless the complainant organization provided information to support the allegations relating to SINDESENA, the Committee would not pursue its examination of the allegations any further. Having received no information in this regard, the Committee will not pursue its examination of this aspect of the case.
7. 39. With regard to recommendation (c), the Committee notes that the Government indicates that Ms Yolanda Cárdenas, Mr Mario Bermúdez and Ms Claudia Patricia Arboleda were contracted on a fixed term basis to cover temporary vacancies. The Government also states that Ms Yolanda Cárdenas filed a claim in 2016 and that a date was being awaited for the hearing. The Committee recalls that the dismissal of Ms Cárdenas dates back to 2012 and observes that neither the Government nor the complainant organization provide updated information regarding the abovementioned judicial proceedings. Furthermore, the Committee notes the Government’s indication that the Ministry of Labour had lost the authority to begin an administrative labour investigation into the dismissals as over three years had elapsed since the events occurred. While recalling that, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1159], the Committee is not aware of any complaints having been lodged with the Ministry of Labour in this regard in due time. In these circumstances, and on the basis of the elements available to it, the Committee considers this case closed and will not pursue its examination.