Informe provisional - Informe núm. 248, Marzo 1987

1. 504. The complaint is contained in a communication of 17 July 1986 from the Union of Workers of the National Coffee-Trade Federation of Colombia (SINTRAFEC), which sent further information in a communication of 29 August 1986. The Government replied in communications of 20 August, 8 and 21 October, 5 and 26 November, and 16 December 1986.
2. 505. 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. 506. The Union of Workers of the National Coffee-Trade Federation of Colombia (SINTRAFEC) alleges the dismissal of trade unionists protected by trade union immunity, without prior certification by the labour court of the existence of just cause for dismissal as required by law (section 405 of the Labour Code). The complainant organisation refers in particular to Gerardo Guerrero (dismissed in September 1985), Héctor Efrén Ramírez (dismissed in December 1984), Luis Enrique Osorio (dismissed in November 1984), Rafael Augusto Acosta (dismissed in November 1985), Ramiro Pedroza (dismissed in September 1980), who applied to the courts for reinstatement, and Marino Leonardo Rivera (dismissed in June 1986) and María Victoria Castaño, recently reinstated by court order.
2. 507. The complainant organisation also alleges that, in spite of recognition by the Ministry of Labour, its Fusagasugá regional committee has been flagrantly ignored by the undertaking (National Coffee Federation). SINTRAFEC adds that, contrary to what was agreed, the enterprises in which the union operates have not paid it the 0.5 per cent of the dues which should be contributed by non-unionised workers who benefit from the existing collective agreement; nor have they paid a special assessment for the year 1984, which was met by the unionised workers. The unpaid amount is equivalent to US$202,020.
3. 508. Furthermore, SINTRAFEC continues, upon the expiry of the collective agreement on 31 March 1986, the undertakings in question gave the unorganised workers a wage increase of 19 per cent as from 1 January 1986, thus worsening the situation of the unionised workers. In addition, the enterprises never consider unionised personnel for promotion and, if they happen to do so, they make it a condition to resign from the Union.
4. 509. The complainant organisation also alleges the murder by paramilitary groups of the trade unionist Carlos Betancourt Bedoya, whose body bore signs of torture, and the disappearance of Gildardo Ortíz Cardozo and Gentil Plaza, as well as threats to various trade unionists (Hernando Alzate Montoya, Helmo Quintero Perdomo, Juan Emilio Taborda and César Augusto Aristizábel Marín). The complainant annexes an anonymous document entitled "Activities of the Union of the Federation in recent years"; most of the accusations it contains are devoid of truth, in particular those concerning participation in guerrilla activities; what it seeks is the murder of union leaders and the destruction of the union.

B. The Government's reply

1. 510. With reference to the allegations of anti-union dismissals, the Government states that section 405 of the Substantive Labour Code provides that a worker covered by trade union immunity cannot be dismissed, or penalised in his conditions of work, or transferred to other establishments of the same enterprise or to a different town, without just cause previously certified by a labour court. If the court official fails to establish the existence of just cause, he shall refuse the permission requested by the employer to dismiss, penalise or transfer the worker (section 408 of the Code) . If the worker is dismissed without the authorisation of the labour court, he has the right to bring an action for reinstatement before the same jurisdiction, which shall order reinstatement and sentence the employer to pay him, by way of compensation, the wages he failed to receive by reason of the dismissal.
2. 511. The Government adds that the complainant organisation reported that the union official María Victoria Castaño Agudelo, who had been dismissed, had been reinstated in her employment by court order. Her situation should therefore not be a matter for complaint, since her rights have been restored by order of the labour courts, the sole competent authority for such purposes. Similarly, the organisation reported that Messrs. Gerardo Guerrero Ibagué, Héctor Efrén Ramírez, Luis Enrique Osorio, Rafael Augusto Acosta Acuña and Ramiro Pedroza Morales had applied to various labour jurisdictions for reinstatement, to which they are entitled if they are workers covered by trade union immunity who had been dismissed without prior labour court authorisation. With respect to those workers, the grounds for the complaint against the Government do not seem very clear, inasmuch as the legislation (sections 405 et seq. of the Substantive Labour Code, and sections 113 et seq. of the Procedural Labour Code) and the factual situation as shown by the applications for reinstatement pending before labour courts (which were filed in exercise of the relevant procedures guaranteed to workers by law) are a clear and manifest demonstration of the effective protection of workers' rights.
3. 512. More specifically, with reference to two of the dismissed workers, the Government indicates that, within the framework of the Ministry of Labour's responsibility to monitor compliance with labour standards, the head of the Labour Inspection Section of the Valle Departmental Division of Labour and Social Security fined the Valle del Cauca Departmental Coffee-Trade Committee 84,057 Colombian pesos (approximately US$400) on 14 November 1986 for the dismissal of worker Gerardo Guerrero Ibagué in violation of the rules of trade union immunity. It was not demonstrated by the investigation that Mr. Héctor Efrén Ramírez had left his job owing to a decision of the undertaking to dismiss him. Both workers have initiated the relevant claims for reinstatement in the regular labour courts.
4. 513. As regards Mr. Marino Rivera, the Government points out that he was not dismissed, as the complainant asserts, but transferred - a fact which, while also involving a violation of trade union immunity if it occurs without the permission of the labour court, is something very different from dismissal since the latter entails the complete separation of the worker from the undertaking in which he works. In connection with the administrative investigation of that transfer, the Departmental Division of Labour and Social Security had succeeded, in agreement with the undertaking, in having Marino Rivera reassigned to his normal place of work. However, as he had filed an action for reinstatement with the labour court, that agreement could not be implemented because when a matter is sub judice, i.e. when it is awaiting a decision by the judiciary, other authorities cannot take any action on the matter being studied by the judges.
5. 514. With regard to the death of the trade unionist Carlos Betancourt Bedoya, the Government states that the Commander of the Caldas Police Department reported that all necessary efforts were being made, jointly with the 13th Criminal Investigation Court of the town of Manzanares, to identify and locate the perpetrators of the crime. According to statements so far taken from some persons, Mr. Betancourt left the locality of Samaná at 5.15 p.m. on 17 May 1986 in the company of Mr. Alejandro Montoya García, who stopped at a property he owned, and the vehicle of the dead man was subsequently seen being driven by someone else. The Government points out that the State is engaged in a struggle with common criminals, who seek to disturb the tranquillity of citizens in various regions of the country and who, under cover of anonymity and using isolated places, commit deeds such as that of which Mr. Betancourt was a victim. Nevertheless, the competent judicial authorities and the police are pursuing the investigation, on which it will report later.
6. 515. As to the disappearance of Messrs. Gildardo Ortéz Cardozo and Gentil Plazas, the Government indicates that the Commander of the Huila Police Department reported that Mrs. Nydia Sarza Plazas told the Command of the Third Police District, headquartered in the town of Garzón (Huila), that her brother, Gentil Plazas, a teacher, and Gildardo Ortíz Cardozo, an employee of the Coffee-Trade Committee of Garzón, left their homes in the town of Suaza at 7.30 p.m. on 9 January 1986. When it became known that the men had not returned, the Commander of the Suaza police station was immediately instructed to patrol the area but they could not be found. It must be noted that there was no co-operation on the part of family members and neighbours in the investigation concerning the whereabouts of Messrs. Plaza and Ortíz. The Government adds that, simultaneously with the investigations being carried out by the police, judicial proceedings for disappearance are continuing under the responsibility of the magistrate of the Neiva District Third Criminal Court who has been asked to supply detailed information. Nevertheless, it should be noted that there appears to be no proof in the investigations under way that the disappearance of Gentil Plazas and Gildardo Ortíz Cardozo is connected with the fact that the former is a teacher or the latter a member of the Garzón Coffee-Trade Committee.
7. 516. With regard to the threats of which Messrs. Hernando Alzate Montoya, Helmo Quintero Perdomo, Juan Emilio Taborda and César Augusto Aristizábal Marín were victims, the Government states that the Commander of the Caldas Police Department reported that Messrs. Aristizábal, Taborda and Quintero were summoned to that Command and that they stated that "since the month of March 1985 they have received anonymous telephone calls in which they are accused of being enemies of private and state enterprise and of being sowers of subversion"; they also informed the police that they had not lodged a criminal complaint concerning the matter. They further indicated that death threats had been received again by telephone and anonymously - since the callers did not identify themselves - at the central offices of the Union in the locality of Chinchiná (Caldas) and at their homes. Those telephone calls too had not been the subject of a criminal complaint to the competent authorities.
8. 517. In connection with Mr. Hernando Alzate Montoya, the Government continues, the Commander of the Chinchiná Police Department reported that, according to the secretariat of the Union, he too had received anonymous death threats by telephone but that he also had not lodged any criminal complaints. These circumstances clearly led to the conclusion that the fact that anonymous death threats were received does not mean and it cannot apparently be proved that the National Coffee-Trade Federation, the Government or any civil or military authority, subversive groups or common criminals were the authors. In view of that and of the fact that those concerned did not lodge any criminal complaints concerning those events, which constitute a crime under penal law, it is clearly impossible for the country's authorities to commence the relevant investigations and to accord the individuals adequate protection.

C. The Committee's conclusions

1. 518. As regards the dismissal of trade unionists covered by trade union immunity, the Committee observes that, according to the Government, of the seven persons mentioned by the complainant organisation, one was reinstated by the labour court, another was not dismissed but transferred, and the remaining five, like the person transferred, have instituted proceedings before the judicial authorities for their reinstatement in the jobs they had held. The Committee also observes that in one of the cases of dismissal, the administrative authority fined the undertaking.
2. 519. The Committee notes that the Labour Code provides a series of guarantees against anti-union discrimination. In particular, it provides that trade union leaders may not be dismissed or transferred without prior certification of just cause by the labour court; it also provides for judicial reinstatement in case of dismissal without authorisation by the labour court. In the present case, the Committee regrets to find that the employer carried out the transfer and dismissals in disregard of the legal obligation to go through the judicial procedure laid down in the Labour Code. In these circumstances, the Committee expresses its concern over the dismissals or transfers which took place between September 1980 and June 1986. It expresses the hope that the courts will shortly pronounce judgement, and stresses the serious consequences which such illegal measures by certain employers have on trade union activities.
3. 520. As regards the death of trade unionist Carlos Betancourt Bedoya and the disappearance of trade unionists Gildardo Ortíz Cardozo and Gentil Plazas, the Committee takes note of the Government's statements, in particular that the competent judicial and police authorities are pursuing the relevant investigations. The Committee deeply deplores the death of trade unionist Carlos Betancourt Bedoya and the disappearance of Gildardo Ortíz Cardozo and Gentil Plazas. It requests the Government to inform it of developments in the current judicial investigations and expresses the hope that they will make it possible to determine responsibilities and punish the guilty parties.
4. 521. As to the allegations of death threats against various trade unionists, the Committee expresses its concern and observes that they affect four leaders in the coffee sector. The Committee takes note of the Government's statement that the persons concerned informed the police that the threats in question had been made in anonymous telephone calls, and that they had not lodged a criminal complaint concerning the threats. The Committee notes that the circumstances under which the threats were made considerably impede identification of those responsible. Nevertheless, given that in the present case there have also been allegations of the death and disappearance of trade unionists, the Committee wishes to refer to the general conclusions it had expressed concerning a recent case relating to Colombia (see 246th Report, Case No. 1343, para. 408) in which it stated that all appropriate measures should be taken to guarantee that ... trade union rights can be exercised in normal conditions, with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind.
5. 522. Lastly, the Committee notes that the Government has not replied to the allegations relating to the non-recognition of the Fusagasugá regional committee of the complainant organisation by the undertaking in spite of the fact that it is recognised by the Ministry of Labour; to the non-payment by coffee undertakings of contributions accruing to the union under collective bargaining; or to certain actions by coffee enterprises prejudicial to unionised workers, particularly as regards wage increases.