Informe definitivo - Informe núm. 150, Noviembre 1975

1. 7. The complaint by the International Metalworkers Federation (IMF) is set out in two communications dated 5 and 8 April 1974. The Government submitted its comments in a letter dated 29 November 1974.
2. 8. Colombia has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 9. The IFM states that the Director-General of Olivetti Colombiana S.A., Mr. Luciano Bianco, has acquired, since his arrival in 1968, a reputation as an anti-trade unionist. It states that from 1969 to 1973 there was a succession of disputes as a result of his intransigent attitude, which the Colombian workers find particularly irritating on the part of a foreign representative of a large multinational company. Moreover, the Government was obliged to order that company to pay fines in 1969 and 1972 because of breaches of the labour law.
2. 10. The National Union of Employees of Olivetti Colombiana, adds the complainants, protested to the company and to the labour inspectorate, by letter, between 17 July 1973 and 13 February 1974, against the company's anti-trade unionist practices. It claims that more than twenty active trade unionists have been wrongfully dismissed since October 1973, often in direct breach of the law. The IMF gives the names of several workers thus dismissed, including one dismissed notwithstanding his trade union immunity (fuero), and of trade unionists who had been victims of other anti-trade union practices such as suspension, transfer and the refusal of normal promotion. It was also stated that the management initiated legal proceedings to obtain the withdrawal of trade union immunity from the president of the union so as to be able to dismiss him. Mr. Bianco is also said to have acquired the habit of insulting union leaders and trying to pick quarrels with them. An assistant manager of the company is even said to have challenged a union leader to a duel. The National Union claims that since 1972 it has been obliged to file more than fifty law suits against the company for non-payment for work on Sundays or public holidays or the normal differential for night work. The union further complains that in order to step up its anti-union pressure the company has withdrawn several privileges already acquired, such as the daily ten-minute rest break.
3. 11. The IMF adds that the labour inspector attempted, in vain, to deliver a memorandum from the union to the manager; when the union representatives arranged to be accompanied by two policemen, the latter could only note that the attempt had failed. The complainant emphasises that a multinational company is involved and that flagrant infringements of recognised rights by a subsidiary of such a company have repercussions in other countries. The IMF states that despite visits by labour inspectors and fines, the Colombian Government has not succeeded in making the undertaking see reason, which explains the complaint to ILO.
4. 12. The Colombian Government has transmitted in a letter dated 23 November 1974 a copy of a decision taken on this matter by a labour inspector. This recalls first of all that the President of the National Union of Employees of Olivetti Colombiana S.A. requested an inquiry and sanctions against that company for persecution of a trade union, that an attempt at conciliation had been unsuccessful and that an administrative inquiry had been undertaken. The labour inspector then presents evidence: the preamble of the decision contains extracts from evidence given by workers and it is stated that the employer did not succeed in disproving the allegations made. It is stated that five trade unionists were dismissed between 3 December 1973 and 26 April 1974.
5. 13. The decision states that right of association is guaranteed and protected by articles 353 and 354 of the Labour Code, by Decree No. 3378 of 1962 and certain penal provisions. It then summarises certain facts and notes that the undertaking has clearly committed breaches of the standards for the protection of freedom of association. It points out, amongst other things, that members of the union were subjected to coercion which, although indirect, could not fail to influence the state of mind of every worker and to have an adverse effect on the relationships between the union's leaders and its members. A union leader had been dismissed, despite his immunity, as had five union members in less than four months. Those constituted one of many clear signs of the coercive policy followed by the company to prevent its employees from exercising freely their trade union rights.
6. 14. It is also mentioned in the decision that the labour inspectorate had on a number of occasions imposed penalties on the company for infringement of labour law, having become convinced that the latter had been flagrantly and systematically violating the rights acquired by the workers. For these reasons, it had fined the company 10,000 pesos for breaches of articles 353 and 354 of the Substantive Labour Code and of Decree No. 3378 of 1962.
7. 15. It can be seen from the information available that Olivetti Colombiana has committed various acts of anti-trade union discrimination, especially by dismissing or exercising coercion on trade unionists. The Government has communicated the text of a decision by the labour inspectorate, imposing a fine on the company for this reason.

B. B. The Committee's conclusions

1. 16. The Committee considers that, so long as protection against anti-trade union discrimination is effectively provided, the methods adopted to protect workers against such practices may vary from one State to another, but that, if discriminatory practices occur in a country, the Government concerned should, whatever methods may normally be used, take all necessary measures to remedy the situation.
2. 17. In the present case, the Committee notes that the right of association is guaranteed and protected by articles 353 and 354 of the Labour Code; in addition to providing for penal sanctions, these articles stipulate that the labour administration shall impose fines of 200 to 2,000 pesos on guilty parties. Decree No. 3378 of 19 December 1962 is complementary to these provisions in that it lists the actions on the part of the employer which are considered as breaches of the right of association. This list consists essentially of the practices referred to in Article 1 of Convention No. 98. In addition, articles 405 to 413 grant special immunity (fuero sindical) to certain trade union leaders and to the founders of a union as well as to workers who are members of it before the granting of legal status.
3. 18. The Committee notes that the labour inspectorate had already imposed penalties on Olivetti Colombiana occasions for systematic violation of the labour law. It notes that in the case under discussion the labour inspectorate, after attempting conciliation, fined the undertaking 10,000 pesos for the anti-trade union practices constituting the subject of the complaints.