Informe provisional - Informe núm. 190, Marzo 1979

233. The Committee has considered it appropriate to examine together the matters still outstanding in Case No. 871 and the allegations made in Case No. 907. The Government has furnished observations with respect to both cases in a communication dated 15 November 1978.

1. 233. The Committee has considered it appropriate to examine together the matters still outstanding in Case No. 871 and the allegations made in Case No. 907. The Government has furnished observations with respect to both cases in a communication dated 15 November 1978.
2. 234. Colombia has ratified both 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. A. The complainants' allegations

• I. Case No. 871
  235. 235 The Committee examined the substance of this case at its sessions in May and November 1977, when it submitted certain interim conclusions in paragraphs 235 to 256 of its 168th Report and 331 to 340 of its 172nd Report, both approved by the Governing Body.
       • (a) Allegations relating to the death of an indigenous leader and the arrest of a trade unionist
  236. 236 In its communications of 17 February and 17 March 1977, the National Agrarian Federation (FANAL) referred to the murder of the indigenous leader Justiniano Lame in the department of Cauca (Colombia) and the arrest of the First Vice-Chairman of the FANAL. In its reply of 15 April 1977 the Government stated that the murder had nothing to do with trade union or labour matters and that the criminal courts were investigating the case. Since its session in May 1977, the Committee has been requesting the Government to communicate the results of this judicial inquiry as well as its observations on the arrest of the FANAL leader, specifying the grounds for his arrest and - in the event of judicial proceedings having been instituted against him - supplying the text of the judgement given and the reasons adduced therefor.
  237. 237 In its communication of 15 November 1978, the Government repeats that Mr. Lame's death had nothing to do with labour-management relations but was attributable to problems in connection with the ownership of land. The Government supplies a copy of a report dated 14 February 1977 by a lawyer from the Ministry of the interior commissioned at the time of the incident in question to investigate the facts. According to the version of the local authorities as quoted in this report, a group of indigenous persons who had previously been working on an estate were installed by the Government on plots of agricultural land acquired from that estate. Subsequently, charges were filed against Mr. Lame and other members of the group, it being alleged that they had invaded the estate and caused damage, and the owner of the estate arranged to have a police guard put on her property. On 2 February 1977, a number of indigenous persons, caught trespassing on the estate, threatened the police guards, one of whom fired a shot and wounded Lame, who died from loss of blood while he was being taken to a first-aid post. According to the information supplied by the Government, the local police superintendent immediately requested that an inquiry be opened by a military examining magistrate to determine the liability of the policeman, who was placed at the disposal of the magistrate. It appears from the Government's communication that these judicial proceedings have not yet been completed.
  238. 238 The Government also states that the FANAL leader who was arrested is Mr. Abel Pino, and that the ground for his arrest was the injuries he had inflicted upon a peasant in a quarrel over personal matters. The Government adds that the matter has been dealt with by a municipal criminal court in Popayán (department of Cauca). The Government also supplies the text of a report by the labour authorities of Cauca which states, quoting a statement made by another trade union leader, that Mr. Pino, Chairman of the Cauca Peasant Federation, affiliated to the FANAL, was held in custody for four months by order of the judge, and then provisionally released, on condition that he appeared in court at regular intervals. According to the same statement, Mr. Pino had already been arrested previously on four occasions, remaining in custody for periods ranging from a fortnight to two months, apparently because charges had been filed against him by the owner of an estate. A group of peasants, at the instigation of Mr. Pino, had requested the Colombian Agrarian Reform Institute to enable them to become the owners of this estate, where they were working.
       • (b) Allegations relating to the trade union rights of workers at the Colombian Social Insurance Institute and in the teaching profession
  242. 242 In its complaint of 9 March 1977, the Trade Onion Confederation of Workers of Colombia (CSTC) alleged that the Colombian Social Insurance Institute (ICSS) had decided in September 1976 to classify medical and other staff as "public employees". According to the CSTC, the latter did not enjoy the right to bargain collectively, the right to organise or other types of trade union rights. As a consequence of the strike called for this reason, over 90 trade union leaders and workers had been dismissed. The CSTC further alleged that the Government had promulgated a "statute for the teaching profession" which conferred on teachers the status of "public employees", thus restricting their right to bargain collectively and hence their trade union rights.
  243. 243 In its reply of 15 April 1977, the Government stated that it was engaged in a reorganisation of the ICSS, and that a commission had been set up mainly to study the matter raised in the complaint. The Government added that it had suspended the "statute for the teaching profession" and was now undertaking a more complete examination of the situation.
  244. 244 When it considered the matter in May 1977, the Committee noted that, under section 414 of the Labour Code of Colombia, the right to form trade unions was extended to both "official workers" and "public employees", but that the Labour Code nevertheless made a distinction between these two categories in that, under the terms of section 416, unions of public employees, unlike other "official workers", were not entitled to present statements of claims nor to conclude collective agreements. The Committee observed that as a result of the measures taken by the authorities, the categories of workers mentioned in the complaint had lost the right to collective bargaining which they had hitherto apparently enoyed. On the Committee's recommendation, the Governing Body requested the Government to communicate the results of the studies undertaken with respect to the status of the workers at the ICSS and in the teaching profession, indicating the measures taken on the basis of these results, and to transmit its observations on the alleged dismissal of over 90 trade union leaders and workers by the ICSS.
  245. 245 In its communication of 15 November 1978, the Government states that, under the terms of Decree No. 1651 of 1977, the workers at the Social Insurance Institute acquired as from the coming into force of that decree the status of "social security officials" enjoying a special legal relationship with the Administration which conferred upon them the right to conclude collectively with the Institute agreements for the modification of the basic salaries attaching to their posts. The Government supplies the text of this decree, section 3 of which contains the provision mentioned by the Government, and further specifies that the category of "social security officials" shall comprise persons performing medical and administrative functions at the Institute, with the exception of certain senior executives and persons employed on domestic duties, to whom other standards are applicable.
  246. 246 The Government states that in consequence the union of workers at the Social Insurance Institute has not been deprived and will not be deprived of the social and employment benefits won under earlier collective agreements.
  247. 247 As concerns teachers, the Government refers to the provisions of section 416 of the Labour code, already mentioned, and points out that public employees are free to join and found industrial associations, but subject to the restrictions embodied in the law - that is to say, they may not present statements of claims, but may submit respectful petitions. Nevertheless - continues the Government - 40 per cent of universities have concluded collective agreements with the professors' unions; these are public institutions which of their own free will, by decision of their boards of governors, have approved these agreements.
       • (c) Allegations relating to the Colombian Mineral Water Enterprise
  249. 249 In communications dated 22 February and 25 March 1977, the Trade Unions' International of Food, Tobacco, Hotel and Allied Industries Workers alleged that the Colombian Mineral Water Enterprise had requested authorisation to dismiss the members of the executive of the employees' union and that the Ministry of Labour had issued an order declaring illegal an alleged work stoppage on the part of the employees of that undertaking. It added that the same ministerial order had blocked the union's funds, suspended its legal personality and authorised the undertaking to dismiss the workers, including the union leaders. According to the complaining organisation, the work stoppage had never taken place and the measures in question were designed to punish the workers for an earlier strike. It further stated that the undertaking had requested authorisation to dismiss the trade union leaders Jaime Aldana, Alfonso López Frayle, Leoncio Alvarado and Humberto Lastra.
  250. 250 At its session in May 1977, while urging the Government to forward its observations on this matter, the Committee emphasised, as it had done in previous cases relating to Colombia, that suspension of the legal personality of a union by an administrative authority - the legal personality being one of the conditions enabling a union to function under the terms of section 372 of the Labour Code of Colombia - was incompatible with Article 4 of Convention No. 87.
  251. 251 At its session in November 1977, the Committee examined a communication from the Government dated 1 September 1977 which stated that, as a consequence of the calling of a work stoppage without warning by the workers at the undertaking in question, the Ministry of Labour, exercising the powers vested in it, had issued an administrative order declaring the stoppage to be illegal and suspending the legal personality of the union for two months. The Government added that this administrative sanction, motivated by a stoppage of work in the absence of any collective dispute, had been imposed at a time when Colombia was not yet bound to observe Conventions Nos. 87 and 98, which were ratified later.
  252. 252 The Committee stated that it trusted that - now that Colombia had ratified Convention No. 87 - the Government would take the necessary steps without delay to amend the provisions of the Labour Code which allowed for the suspension of a trade union by administrative authority. The Committee recalled that it had already in earlier cases drawn the attention of the Government to the fact that measures allowing for the suspension or dissolution of workers' or employers, organisations by administrative authority did not ensure the right of defence which normal judicial procedure alone could guarantee. The Committee further pointed out the contradiction between the complainants' assertion that no work stoppage had taken place and the Government's reply to the effect that the workers had stopped work even though there was no collective dispute. The Committee stated that this contradiction prevented it from formulating its conclusions as concerns the decision the Government was said to have taken to authorise the dismissal of trade union leaders and workers. In these circumstances, on the Committee's recommendation, the Governing Body drew the Government's attention to the principles and considerations set forth in the preceding paragraph and urged it to take the necessary steps without delay to amend the provisions of the Labour code which allow for the suspension of a trade union by administrative authority. It also drew the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.
  253. 253 In its communication of 15 November 1978, the Government states that section 450 of the Labour Code authorises the Ministry of Labour and Social Security to suspend the legal personality of industrial associations whenever an unlawful suspension of work occurs under the circumstances specified in the same section. Once a stoppage has been declared illegal, the employer is free, after an administrative inquiry, to dismiss any person who instigated or took part in the strike, including workers enjoying immunity as trade union officials (fuero sindical). The Government appends the teat of an order issued by the Ministry on 13 October 1977 suspending for two months the legal personality of the Union of Employees of the Colombian Mineral Water Enterprise, this time for having participated in the general strike called on 14 September 1977 by the various trade union Confederations and federations in the country - a matter examined by the Committee in Case No. 889, concerning which it submitted a further interim report to the Governing Body in paragraphs 485 to 511 of its 187th Report.
  254. 254 The Government nevertheless states that, since the coming into force of Decree No. 1469 of 19 July 1978, the procedure for declaring a suspension or stoppage of work illegal has been changed. Whereas formerly the matter was examined on the basis of an investigation carried out by a labour inspector, now the trade union concerned is guaranteed the right to defend itself. It may challenge or request such administrative evidence as it thinks fit in order to demonstrate that the employer is to blame for the stoppage or cessation of work.
• II. Case No. 907
• Allegations relating to the undertaking Shellmar de Colombia, S.A.
  256. 256 In a communication dated 18 March 1978, the Union of Employees of Shellmar de Colombia, S.A., of Medellin, alleges that negotiations on a series of claims in 1977 culminated in a 94-day strike, from May to October of that year, because of the attitude of the undertaking and the firm determination of the union to alleviate the hardship caused by inflation. According to the complaint, repression was exercised through the withholding of wages, breaches of the collective agreement in the form of refusal to recognise the right to time off to attend to union business, delay in the introduction of benefits negotiated by the union, obstruction of the free exercise of trade union rights and an attempt to drive a wedge between the officials of the union and the rank and file by imposing punishments in the form of suspension.
  257. 257 To a second communication, dated 30 June 1978, the complaining union appends a number of documents, including an extract from the works rules, copies of notifications of suspension and dismissal from employment by the undertaking, copies of notifications from the union to the undertaking with respect to the use of time off to attend to union business and copies of complaints submitted by the union to the labour authorities on 25 October 1977 and 15 March 1978. According to the explanations accompanying these documents, the undertaking flouted the collective agreement by denying union officials the time off provided for therein to engage in trade union activities and making deductions from the wages of these officials in respect of the time they were absent on account of these activities, as well as unilaterally curtailing the fringe benefits provided for in the agreement. Still according to the complaining organisation, the undertaking imposed disciplinary sanctions for misconduct not provided for in the works rules as approved by the authorities but imposed by the undertaking to prevent union officials from moving around the factory, and obstructed trade union activities such as meetings, attendance at trade union courses and participation by the union in effecting improvements in the catering facilities. In the same communication details are given of the punishments imposed upon various workers.
  258. 258 In its observations, dated 15 November 1978, the Government states that on 25 October 1977 the union submitted to the labour authorities a complaint referring, to put it briefly, to breaches of the collective agreement, interference with the right of association in trade unions and collective dismissals. As concerns the first point, the Government states that the union worked out a friendly arrangement with the undertaking, in the presence of a labour administration official; the Government appends a copy of the document, dated 7 June 1978, setting forth the terms of this arrangement respecting the subsequent allowance of time off to attend to union business. This arrangement provides, inter alia, for the holding of three meetings per week between the management and the union, the latter being required regularly to inform the management of the names of its representatives.
  259. 259 With regard to the complaint concerning acts interfering with the right of association in trade unions, the Government states that the competent official initiated an administrative inquiry to ascertain the facts about which complaints had been made, and made the necessary visits to the establishment, interviewing the parties. The Government adds that the union ignored repeated requests by this official to furnish the necessary evidence, whereas the undertaking co-operated with him. Thus the union replied to the requests made in 1977 only at the beginning of 1978, when it stated that in due course it would submit the information requested concerning the anti-union acts allegedly committed by the undertaking. In July 1978, the official sent a reminder requesting this evidence, and in the absence of any reply from the union, he decided on 8 August to shelve the inquiry owing to lack of interest.
  260. 260 The Government indicates that the same thing happened with the complaint about collective dismissals. The Government states that there are records at the Antioquia Labour Inspectorate of the various meetings which the complainants were summoned to attend, but failed to appear.
  261. 261 The Government supplies copies of various documents, including records of hearings and of the inspection visit paid to the undertaking on 9 November 1977, and a summons to appear sent to the union on 19 July 1978.

B. B. The Committee's conclusions

• I. Case No. 871
  • (a) Allegations relating to the death of an indigenous leader and the arrest of a trade unionist
    239. 239 In paragraph 241 of its 168th Report, the Committee stated that although the matters at issue in this case were apparently related to land ownership and agrarian reform, the Committee felt obliged to note that a rural workers' leader had been killed and another was said to have been arrested. The Committee considered that if these incidents bore no effective relationship to trade union rights they would not fall within its competence, but that it was incumbent upon the Committee to decide whether or not there was such a relationship in the light of all the available information, and in particular in the light of the text of any judgements handed down.
    240. 240 The Committee notes the additional information supplied by the Government in its communication of 15 November 1978, from which it appears that judgement has not yet been pronounced in the legal proceedings initiated in respect of the death of Mr. Lame, which occurred two years ago, and that Mr. Pino, an official of a peasant workers' federation, is provisionally at liberty.
    241. 241 In these circumstances, without omitting to reiterate the importance the Committee and the Governing Body have always attached to the speedy and full elucidation of cases involving the death of a trade unionist and the threat to the exercise of trade union rights implied by the detention of trade unionists concerning whom no grounds for conviction are subsequently found, the Committee considers it necessary to request the Government once again to furnish as soon as possible the text of the judgements handed down in connection with the death of Mr. Lame and the arrest of Mr. Pino, together with the reasons adduced therefor.
  • (b) Allegations relating to the trade union rights of workers at the Colombian Social Insurance Institute and in the teaching profession
    248. 248 The Committee notes that, by a government decree, the right to bargain collectively has been granted to the category of employees of the Colombian Social Insurance Institute to which the CSTC's complaint refers. However, although some time has elapsed, the Government has still not replied to the allegation that over 90 trade union leaders and workers were dismissed because of a strike in 1976 at that Institute. The Committee considers it necessary to request the Government once again to forward its observations on this allegation. At the same time it wishes to draw attention once more to the risks of abuse and threats to freedom of association involved in dismissals arising out of strikes. In other cases involving issues of this nature, the Committee has expressed the view that the adoption of an inflexible attitude in the application of excessively severe sanctions to workers who had participated in a strike could impair the development of labour relations, When it recently examined another case relating to Colombia, the Committee drew the Government's attention to these same considerations and stated that it would be desirable for the Government to take measures to promote the reinstatement of the dismissed workers. Lastly, the Government makes no mention of the results of the new study which, according to an earlier communication from the Government, was being made of the situation of workers in the teaching profession. In this respect also the Committee considers it desirable to repeat its earlier request for information.
  • (c) Allegations relating to the Colombian Mineral Water Enterprise
    255. 255 The Committee notes that, by virtue of provisions contained in Decree No. 1469 of 1978, mentioned by the Government, certain guarantees have been introduced with respect to a trade union's right to defend itself when the administrative authorities are envisaging the application of measures for its suspension or dissolution. The Committee nevertheless feels bound to emphasise yet again the principles and considerations to which reference is made in paragraph 252 above, particularly in view of the fact that Convention No. 87 has been ratified by Colombia and that Article 4 of this instrument explicitly prohibits the suspension or dissolution of workers' and employers' organisations by administrative authority. The Committee has pointed out in certain cases that provisions similar to those now embodied in Colombian legislation would be compatible with the principles on freedom of association if the administrative authority's decision could not become effective until it had been confirmed by a judicial authority, or until the statutory period had expired without an appeal being lodged, subject to the condition that the judicial authority in question was competent to examine the substance of the matter. The Committee is nevertheless still of the opinion that it would be highly desirable for the Government to consider also amending the relevant provisions of the principal Act, i.e. the Labour Code, so as to bring them fully into line with the aforementioned Article of the Convention. The Committee notes in this regard the statement made by the Government in Case No. 889 examined during the present session according to which it proposes to refer a commission to the Committee's recommendations on the harmonising of its legislation with Article 4 of Convention No. 87. Pending such amendment, the Committee would like the Government to indicate whether the administrative decision becomes effective immediately on if there exists a procedure of appeal to a judicial authority, what the effect of an appeal is, and by what provisions the matter is governed.
  • II. Case No. 907
• Allegations relating to the undertaking Shellmar de Colombia, S.A.
  262. 262 The Committee observes that while the complaining union has supplied a copy of the complaint it submitted to the labour authorities, it does not refer in either of its two communications to the requests made by these authorities to submit evidence to facilitate investigation of the facts. In this connection it should be pointed out that the communication from the complaining organisation to the ILO dated 30 June 1978 was accompanied by a large number of documents relating in particular to punishments for absences which according to the undertaking were unjustified, as well as to certain cases of dismissal. In the same communication, the complaining organisation furnished various details in support of its allegations. It appears from the information supplied by the Government that shortly before the date of that communication the union concluded with the undertaking an arrangement with respect to time off to attend to union business, and that shortly afterwards the authorities again requested the union to furnish evidence with respect to other aspects of the case, but received no answer. When examining other cases in the past, the Committee has pointed out that in view of the nature of its responsibilities it cannot consider itself bound by any rule that national procedures of redress must be exhausted, such as applies, for instance, to international claims tribunals in the present case the Government has furnished evidence showing that it offered to intervene with a view to elucidating the facts alleged, but that in this task it received no co-operation from the complainant organisation. Since tie allegations relate to non-observance by an undertaking of provisions of laws, regulations and agreements, the Committee considers that in attempting to solve the problems that had arisen the national authorities should have been able to count on the cooperation of the parties concerned.
  263. 263 The Committee takes note of the information supplied by the Government concerning the arrangement concluded between the parties with respect to time off to attend to union business. As concerns the other aspects of the case, bearing in mind the considerations set forth in the preceding paragraph, it would be desirable to request the complaining organisation to furnish before the Committee's next session any comments it wishes to make with respect to the information supplied by the Government as indicated in paragraphs 259 to 261 above.