Informe provisional - Informe núm. 236, Noviembre 1984

1. 686. The complaint is contained in a communication from the Trade Union Confederation of Colombian Workers dated 5 June 1984. This organisation sent additional information in a communication dated 24 July 1984. The Government replied in communications of 8 August and 10 October 1984.
2. 687. 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. The complainant's allegations

1. 688. The complainant alleges that on 27 May 1983 the Union of Noel Workers submitted a list of grievances to the management of "Industrias Alimenticias Noel S.A." and that, since then, the latter had been refusing to discuss this list in spite of the fact that the administrative authorities have fined the undertaking 5,000 pesos per day, since section 433 of the Labour Code stipulates that the employer is required to receive a workers' delegation within 24 hours of the submission of the grievances and that in no case shall the opening of negotiations at the direct settlement stage be delayed for more than five working days. The complainant adds that despite this, the undertaking has systematically refused to pay the fines and the Minister of Labour is not applying sufficient pressure to force the managers to discuss the list of grievances.
2. 689. Furthermore, the complainant alleges that the above-mentioned undertaking has been infringing the right of freedom of association as it has been putting pressure on the members of the Union of Noel Workers to leave the trade union. This was proven during an inquiry carried out by the administrative authorities who penalised the undertaking with a fine. The complainant sends copies of the respective administrative orders.
3. 690. Finally, the complainant alleges that, with a view to undermining the trade union, the management dismissed 13 unionised workers within the space of eight days. The complainant points out that this act constitutes an infringement of the right of these workers to be protected, because section 25 of Legislative Decree No. 2351 stipulates that no workers who have submitted a grievance to their employer may be dismissed and up until such time as a new collective labour agreement has been signed.

B. The Government's reply

1. 691. The Government states that under Order No. 0241 of 5 July 1983, the First Inspectorate of the Departmental Division of Labour and Social Security of Antioquia imposed a fine of 5,000 pesos per day on the undertaking "Industrias Alimenticias Noel S.A." for having refused to discuss the list of grievances (the maximum fine which can be imposed is an amount equivalent to 40 times the minimum monthly wage). The undertaking presented an action to set aside this order and lodged an appeal against it; however, it was endorsed by Orders Nos. 0284 and 0460 of 2 and 31 August 1983. At a later date, the undertaking requested the Administrative Court of Antioquia to suspend the three above-mentioned orders, this request was refused in a ruling of 6 December 1983. The Government also points out that where a fine is not paid the legislation provides for the institution of proceedings in the labour courts.
2. 692. Furthermore, the Government states that the Departmental Division of Antioquia fined the "Industrias Alimenticias Noel S.A." once again under Order No. 0434 of 5 December 1983 for having violated freedom of association.
3. 693. In view of the above, the Government asserts that it is untrue that the Ministry of Labour and Social Security failed to act upon the undertaking's refusal to discuss the list of grievances submitted to it by the trade union in question. In the Colombian legal system, the authorities only have the powers expressly conferred upon them by law. Consequently, the Ministry is empowered to supervise and ensure the application of labour standards and impose fines on those who infringe these standards; however it may not sanction by any other means, as this would be contrary to legal provisions. If the undertaking "Industrias Alimenticias Noel S.A." therefore continues to refuse to discuss the list of grievances with the trade union, the labour administrative authorities will continue to impose fines on it, varying from 1 to 40 times the highest monthly minimum wage (clause 2 of section 486 of the Labour Code, amended by section 24 of Act 11 of 1984), but in no circumstances may it apply the "sufficient pressure" to which the complainant refers. Finally, the Government states that the workers dismissed by virtue of the law by the undertaking can appeal to the courts.

C. The Committee's conclusions

1. 694. With respect to the allegations, the Committee notes that, the competent authorities imposed fines on the undertaking "Industrias Alimenticias Noel S.A." for having continuously refused, in violations of the legislation in force, to discuss the list of grievances submitted by the trade union within the undertaking on 27 may 1983 and for undermining freedom of association by putting pressure on union members so that they resign from the union.
2. 695. In these circumstances, since the Government confirmed that the undertaking in question failed to comply with the legislation, the Committee cannot but request the Government to take adequate measures, including effective penalties, to ensure that the legislation with, respect to collective bargaining and the protection of trade union,) rights is fully applied and to inform it of developments in this regard. The Committee also requests the Government to draw the attention of the undertaking "Industrial Alimenticias Noel S.A." to the obligation on both employers and trade unions to bargain in good faith to come to an agreement and that satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence. [See, for example, 139th Report, Case No. 725 (Japan), para. 279.] The Committee considers it vital that the undertaking in question reconsider its refusal to negotiate with the trade union and enter into discussions shortly.
3. 696. Finally, the Committee notes that the Government has not replied in detail to the allegation that the undertaking "Industrial Alimenticias Noel S.A." had illegally dismissed 13 unionised workers in order to undermine the trade union. The Government limited itself to stating that the dismissed workers could appeal to the courts. The Committee accordingly requests the Government to send detailed observations on this allegation.