Informe provisional - Informe núm. 314, Marzo 1999

1. 97. The complaint is contained in communications of the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) dated 15 April and 14 May 1998. The Government replied in a communication dated 15 January 1999.
2. 98. 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. 99. In its communications dated 15 April and 14 May 1998, the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) alleges that its members consist of the workers of three enterprises (Cristalería Peldar S.A., Compañía Nacional de Vidrios S.A. (CONALVIDRIOS) and Vidrio Técnico de Colombia (VITECO)) and that since 1994 the CONALVIDRIOS S.A. enterprise has carried out a series of legal, material and economic attacks against its local executive committees in the cities of Soacha and Buga with the aim of weakening them and turning the union into a minority organization. The other enterprises referred to respect the trade union and engage in dialogue and collective bargaining with it.
2. 100. Specifically, the complainant alleges that the following violations of trade union rights have been committed:
   • -- after hiring a former official of the Ministry of Labour (Regional Director of Labour and Social Security of Cundinamarca) as Human Resources Director on 4 September 1994, the CONALVIDRIOS enterprise embarked on an anti-union policy, failing to recognize the participation of the union in the joint committees (on labour relations, occupational health, sports and catering) established in the collective agreement; the Ministry of Labour was informed accordingly;
   • -- the enterprise has embarked on an anti-union policy of reducing the union's membership, granting those who resign from the union privileges such as loans, promotions and bonuses, which is further aggravated by the fact that some of these, such as leave and housing loans, are statutory benefits for which provision is made in the collective agreement; as a result of this policy, approximately 200 members have resigned from the union; the intention is to turn the trade union into a minority organization, which under Colombian law would result in the loss of substantial guarantees, especially in terms of power to represent the workers vis-à-vis the employer; the Ministry of Labour was informed accordingly;
   • -- the Ministry of Labour issued Decisions Nos. 0072 and 0073 of 18 January 1995 revoking previous administrative decisions registering the executive committees of the trade union. The revocation of these decisions was inappropriate and the representatives of the trade union had not been duly notified of it. Once these administrative decisions had been issued, the CONALVIDRIOS S.A. enterprise proceeded to dismiss six trade union officers, followed by 14 other trade union leaders. The person who instigated these dismissals and the above-mentioned decisions was the enterprise's Human Resources Director (a former official of the Ministry of Labour), who used all the powers vested in him, while the Ministry of Labour failed to deal impartially with the complaints concerning these matters;
   • -- the enterprise stopped granting trade union leave for which provision had been made in the collective agreement;
   • -- when the trade union convenes assemblies, the enterprise invents games, parties, sports and other activities, and members who speak at a meeting are dismissed the next day; members live in constant fear of losing their jobs; human rights are clearly being violated; trade union officers cannot speak to their fellow workers, and if they do they are transferred to another workstation or shift; the authorities and the Colombian judiciary have done nothing about this;
   • -- the enterprise confiscates from the workers bulletins distributed by the trade union, thus infringing freedom of expression; on one occasion when trade union officers came to the entrance of the enterprise in order to distribute the information bulletin, the security guards set the dogs on them, threatening their lives;
   • -- the enterprise brought criminal charges against the chairperson and the secretary of the national executive of the trade union for libel and slander but was unable to prove its accusations. To date, the union has brought over 100 legal actions (lawsuits, ordinary claims and special claims for trade union immunity and a criminal suit, which is currently being investigated by the Public Prosecutor's Office No. 68 of Santafé de Bogotá). According to the complainant, the labour courts and the labour administration authorities have been informed of all these facts, without any appropriate action being taken by the Ministry of Labour.
3. 101. The enterprise also brought criminal charges against seven officers of the Soacha local executive committee of the trade union for alleged procedural fraud, false impersonation and falsifying documents. The trade union brought criminal charges against four managers of the enterprise for trade union persecution (section 272 of the Penal Code).
4. 102. Finally, the complainant attaches a copy of a judgement of the Supreme Court of Justice dated 21 January 1997, in which it is acknowledged that the CONALVIDRIOS S.A. enterprise exerted pressure on the workers in order to obtain their withdrawal from the trade union and ordered the enterprise "to refrain in future from acts aimed at preparing or processing withdrawal of trade union membership or any conduct aimed at obtaining the withdrawal of workers from membership of the enterprise trade union".

B. The Government's reply

1. 103. In its communication dated 15 January 1998, the Government states that the complainant had not previously presented a complaint to the Ministry of Labour concerning alleged legal, material and economic attacks on the local executive committees of the complainant trade union in Soacha and Buga with the aim of weakening them and turning the union into a minority organization, and getting them to conclude a collective pact (which is not applicable to all workers but only to the union members), nor concerning the alleged enterprise policy of withdrawal of trade union membership by granting benefits to those who resign, nor concerning the denial of trade union leave, nor with regard to the alleged violations of human rights (manoeuvres by the enterprise to prevent workers from attending assemblies or talking with trade union officers, by dismissing or transferring those who do so to another workstation or shift in some cases), nor concerning failure on the part of the Ministry of Labour to act appropriately. The assertion of the complainants that the Colombian State is involved in these alleged acts, is denied.
2. 104. The Government asks that it be placed on record that the Regional Director of Labour and Social Security of Cundinamarca to whom the complaint refers served in this position from 8 May 1991 to 4 September 1994 and was only afterwards hired by the CONALVIDRIOS S.A. enterprise. While it is true that it would be illegal to hold posts in the Ministry of Labour and in the CONALVIDRIOS enterprise simultaneously, the complaint indicates no proof that this in fact occurred or that the alleged acts occurred during this person's period of office in the Ministry of Labour and Social Security. In any case, the persons concerned could have lodged a complaint concerning his conduct before the bodies responsible for supervising discipline, such as the State Public Prosecutor, and, as a lawyer was involved, before the Supreme Council of the Judicature. It should be pointed out that after retiring from public service the person concerned was legally entitled to join CONALVIDRIOS S.A. or any other enterprise. The Government adds that in a country founded on the rule of law, such as Colombia, in which citizens have a wide range of judicial means of enforcing their rights, the legality of administrative decisions is supervised by the Council of State, the highest administrative tribunal, before which the complainants must appear upon a claim being lodged by one of the parties to bring an action to declare a decision void and reinstate a right, the purpose of which is to contest the legality of administrative decisions issued by the Government and award compensation for damages. As it was found that proper notification had not been given, the competent authority was unofficially informed of the facts in order to verify the alleged omission by administrative officials in order to sanction them for any breaches of discipline that had occurred. Attention is drawn to the above-mentioned supervision of the legality of such administrative decisions.
3. 105. As regards the alleged dismissals of trade union leaders, the Government states that national labour legislation provides that workers who enjoy trade union immunity may bring an action for reinstatement in their jobs and that in order to do so the persons concerned must lodge a claim before the labour court in due time and provide evidence in support of their claims. Concerning the complainant's assertion that the dismissals were instigated by a former official of the administration and therefore the Ministry of Labour and Social Security allegedly behaved in a biased manner, the Government points out that the Ministry does not carry out any jurisdictional function with regard to the dismissal of workers covered by trade union immunity and therefore the union's tendentious presentation of the facts is not valid, since Colombia is firmly founded on standards which above all observe the guarantees with regard to the principles of legality, mutual respect and the common good, and, as the complainant states, the dismissals carried out by a former state official were ordered solely and exclusively in his capacity as Human Resources Director of the CONALVIDRIOS S.A. enterprise.
4. 106. Concerning the alleged violations of human rights (manoeuvres by the enterprise to prevent workers from attending assemblies or talking with union officers by dismissing or transferring those who do so to another workstation or shift in some cases), the Government states that it has referred this issue to the Inter-Institutional Human Rights Office of the Ministry of Labour in order for it to carry out an investigation and hand down a decision in the matter.
5. 107. The Government further denies the alleged incompetence and complicity of the State of Colombia, since it is the trade union which must bring actions to defend the rights which it considers to have been violated, and it must do so before the public powers (either the ordinary labour courts or the administrative jurisdiction, depending on the case), upon claims being lodged by the parties, who must provide evidence in support of their claims.
6. 108. Lastly, the Government reiterates that the trade union has not availed itself of the different bodies and machinery afforded by the legal system to defend its rights and, in ignoring these channels, has acted rashly in bringing the complaint directly before the Committee on Freedom of Association. It is, therefore, requested that this matter be brought before the Governing Body of the ILO with a view to adopting measures to prevent this type of act from recurring.

C. The Committee's conclusions

1. 109. The Committee observes that in this case the complainant has alleged a long series of acts of anti-union interference and discrimination (including dismissals of trade union officers and members, obstruction of trade union activities, acts of intimidation, pressure to obtain the resignation of trade union members) and non-compliance with the terms of the collective agreement by the CONALVIDRIOS S.A. enterprise.
2. 110. Firstly, as regards the Government's statement contained in the last paragraph of its reply, the Committee recalls the rules governing its procedure in this regard as follows:
   • Where national legislation provides for appeal procedures before the courts or independent tribunals, and these procedures have not been used for the matters on which the complaint is based, the Committee has considered that it should take this into account when examining the complaint.
   • Although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures (see Procedures of the Committee on Freedom of Association, paras. 31 and 33).
   • The Committee requests the Government to take the rules into account in the future.
3. 111. The Committee notes the Government's statement to the effect that the complainant had not informed the authorities of some of these matters, that the legislation provides for administrative and judicial machinery and procedures in the event of a violation of the legislation, which includes provision for an action for reinstatement of workers who have been dismissed in violation of their trade union immunity. The Government also points out that the fact that a manager in the enterprise had formerly held office in the Ministry of Labour is neither illegal nor objectionable, but that once the complaint had been brought to its attention the competent authority had been informed of the alleged acts. The Government also states that the Inter-Institutional Human Rights Office of the Ministry of Labour will carry out an investigation into the aspect of the complaint concerning human rights.
4. 112. The Committee regrets that the Government has not sent specific observations on the different allegations presented by the complainant in April and May 1998, particularly in view of the gravity of the acts referred to in the complaint, and that the Supreme Court of Justice, in a ruling handed down on 21 January 1997, ordered the CONALVIDRIOS S.A. enterprise to refrain from conduct aimed at obtaining the withdrawal of workers from union membership. In these circumstances, the Committee requests the Government to ensure that a detailed investigation is carried out into each of the allegations presented by the complainant and to inform it in this respect without delay.