Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 336, Marzo 2005

1. 285. The Committee last examined this case at its June 2004 meeting [see 334th Report, paras. 321-360].
2. 286. The Government sent its observations in communications dated 1 September 2004 and 20 and 24 January 2005.
3. 287. 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. Previous examination of the case

1. 288. At its meeting in June 2004, when it examined allegations relating to acts of anti-union discrimination and persecution at a number of companies, the Committee made the following recommendations on the matters still pending [see 334th Report, para. 360]:
   • (a) […]
   • (b) with regard to the alleged dismissals and disciplinary measures against members of SINALTRABAVARIA for participating in a work stoppage at the enterprise on 31 August 1999, taking into account the time that has passed since the events occurred, the Committee firmly hopes that the labour courts will give a ruling as soon as possible, and requests the Government to keep it informed in this respect;
   • (c) […]
   • (d) […]
   • (e) as regards the allegations concerning the untimely closure of enterprises, the dismissal of many trade union officers and members of various branches, and pressure so that they accept a voluntary retirement scheme, in respect of which the Cundinamarca Inspection and Oversight Group decided in a resolution that the workers were not dismissed but signed conciliation agreements, and that there were no untimely closures of enterprises, the Committee requests the Government to indicate whether the trade union concerned has lodged any appeal against the resolution;
   • (f) as regards the dismissal of trade union officers at the Caja de Crédito Agrario, in disregard of trade union immunity and in contravention of the rulings ordering the reinstatement of a number of these officers, with regard to which the Council of State considered in a resolution that the individual rights of the applicants were safeguarded by acknowledgement of the arrears of wages owed from the time the posts were abolished until the notification of an administrative act setting out the reasons why reinstatement was not possible, the Committee requests the Government to indicate whether wages and other benefits owed to workers have been paid in accordance with the resolution in question, and if this is not the case, to ensure immediate payment;
   • (g) as regards the refusal to register the trade union organizations USITAC, SINALTRABET and UNITAS on grounds of legal flaws, the Committee once again urges the Government to register USITAC, SINALTRABET and UNITAS and to keep it informed in this regard;
   • (h) as regards the alleged dismissals of trade union officers and members who enjoyed trade union immunity in their capacity as union founders and of other trade union members as a result of the creation of USITAC, the Committee requests the Government to guarantee the rapid and adequate functioning of legal procedures and to indicate whether the enterprise sought judicial authorization before the dismissal and, if not, to indicate whether the trade union officers concerned have lodged the corresponding appeals and what was the outcome;
   • (i) with regard to the actions taken by the enterprise in order to suspend the trade union immunity of William de Jesús Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Committee requests the Government to keep it informed of the outcome of these actions;
   • (j) as regards the allegations concerning the dismissal of members of the complainant organization, […] the Committee requests the Government to indicate whether the workers have lodged appeals against the decisions to dismiss them […];
   • (k) as regards the closure of the COLENVASES plant, the Committee once again urges the Government to forward the court rulings as soon as they are handed down;
   • (l) with regard to the allegations concerning disciplinary measures against members of SINALTRABAVARIA, the Committee once again requests the Government to carry out an investigation to establish the facts and, in the light of the investigation’s conclusions, to indicate the avenues of legal redress available to the trade union to safeguard its rights, and to take measures to adapt its legislation and legal procedures in line with Conventions Nos. 87 and 98;
   • (m) with regard to the allegations concerning anti-union discrimination presented by SINALTRABAVARIA (pressure on workers to resign from the trade union, denial of trade union leave, delay on the part of the Ministry of Social Protection in carrying out inspections to confirm anti-union activities in the enterprise and in the registration of new executive committees, and the hiring by the enterprise as a labour cooperative of workers that it had previously dismissed), the Committee once again requests the Government to send its observations in this respect without delay;
   • (n) with regard to allegations relating to dismissals presented by SINALTRAINBEC through a system of early retirement, the Committee requests the complainant organization to provide further information in this regard;
   • (o) with regard to the failure to implement the Committee’s recommendation for the reinstatement of or payment of full compensation to Mr. Romero, the Committee requests the Government to send its observations in this respect and to indicate whether Mr. Romero has promptly received full compensation;
   • (p) the Committee takes note of the recent communication by SINALTRAINBEC and requests the Government to send its observations in this respect. (In this communication, SINALTRAINBEC stated that on 28 March 2004 the Trade Union of Workers in the Beverages and Foodstuffs Industry (USTIBEA) was formed, and that the company was notified on 2 April 2004. In spite of this, on 17, 19 and 26 April 2004, Cervecería Unión S.A. dismissed SINALTRAINBEC officials William de Jesús Puerta Cano, Luis Fernando Viana Patiño, Edgar Darío Castrillón Munera and Alberto de Jesús Bedoya Ríos without cause, alleging serious disciplinary offences. The complainant adds that the company wanted, without its employees’ consent, to extend working hours for staff training.)

B. The Government’s reply

1. 289. In its communications dated 1 September 2004 and 20 and 24 January 2005, the Government sent its observations on the recommendations made by the Committee at its last meeting. The Government also sent the comments of the Cervecería Unión S.A. company concerning certain recommendations of the Committee.
2. 290. With regard to item (b), concerning the alleged dismissing and sanctioning of workers belonging to SINALTRABAVARIA for participating in a strike at the company on 31 August 1999, the Government states that the Ministry of Social Protection carried out an administrative investigation and, by resolution No. 00222 of 8 February 2002, refrained from taking any measures against Bavaria S.A., a decision which was confirmed by resolution No. 1340 of 16 July 2002, leaving the company cleared of any blame. The Government adds that the company reports that ordinary proceedings have continued according to the timescales and in the manner established by domestic legislation, and that considerable progress has been made.
3. 291. Thus, in the ordinary labour proceedings brought by Mr. Luis Alfredo Quintero Velásquez against Malterías de Colombia S.A., the Ninth Labour Court of the Bogotá Circuit delivered its verdict on 2 April 2004, clearing Bavaria S.A. of each and every allegation made. However, it did order payment of damages to the plaintiff, since it considered that the offence committed by the plaintiff, although proven, was not serious. The Government states that the aforementioned verdict clarified that the dismissal was not motivated by the plaintiff’s participation in the strike, since it occurred only for the reasons given by the employer in its letter terminating the contract, which made no mention whatsoever of the national strike of 31 August 1999. The Government states that this verdict has been appealed by the legal representatives of both parties and is awaiting a decision from the Upper Tribunal of Bogotá.
4. 292. In the ordinary labour proceedings brought by Alfonso Maigual Valdez and José Luis Salazar against Bavaria S.A., the Sixteenth Labour Court of the Bogotá Circuit declared the probatory term closed and set a date for the verdict to be given on 19 November 2004. The Government states that the dismissals in this case were likewise not motivated by the participation of the workers concerned in a national strike, but by their failure to fulfil their contractual and legal obligations.
5. 293. With regard to item (e), concerning the untimely closure of enterprises, the dismissal of many trade union officers and members of various branches, and pressure so that they accept a voluntary retirement scheme, the Government reports that SINALTRABAVARIA has not taken any legal measures against resolution No. 00015 of 10 January 2003, in which the Ministry of Social Protection refrained from sanctioning Bavaria S.A., finding, as a result of the appropriate investigation, that there had been no closures, but rather voluntary retirement of workers. The aforementioned administrative act was confirmed by decree on 24 February 2004. The Government states that, according to Bavaria S.A., some workers had approached the labour judges asking that they annul the conciliation agreements signed because of the retirement scheme, but that the legal verdicts had cleared the company, and that they reiterated that the workers had decided freely and voluntarily to accept the retirement scheme offered by the company.
6. 294. With regard to item (f), concerning the dismissal of trade union officers at the Caja de Crédito Agrario, in disregard of trade union immunity and in contravention of the rulings ordering the reinstatement of a number of these officers, with regard to which the Council of State considered in a resolution that the individual rights of the applicants were safeguarded by acknowledgement of the arrears of wages owed from the time the posts were abolished until the notification of an administrative act setting out the reasons why reinstatement was not possible, the Government states that, given the legal and actual impossibility of reinstating those persons protected by a judicial verdict ordering their reinstatement, 60 out-of-court conciliation settlements were reached, between the same number of workers protected by trade union immunity and the company in liquidation. In accordance with the principles of the Civil Service Division of the Council of State, the company issued 58 resolutions in respect of 64 plaintiffs, stating the physical and legal impossibility of reinstatement, and releasing and paying to the former workers the wages and benefits arrears owed from the time the posts were abolished until the notification of an administrative act declaring reinstatement to be impossible. At present, 34 trade union immunity proceedings are still awaiting a ruling.
7. 295. With regard to item (g), concerning the refusal to register the trade union organizations USITAC, SINALTRABET and UNITAS on grounds of legal flaws, the Government explains in various replies that, from the procedures carried out while these organizations were being registered, it was discovered that they did not meet the legal and constitutional requirements for registration. The Government adds that, during this process, the members of these organizations were able to discuss the administrative procedures giving rise to the refusal to register these unions and have access to legal redress, and that, since they did not do so, the respective decisions were made final. Furthermore, the Government states that, in the verdict given on 30 June 2004 by the Labour Decisions Division of the Upper Tribunal of Bogotá, fundamental observations were made regarding the illegality of the trade union UNITAS, and that in one section of its verdict the Tribunal stated:
   • … we understand that this is not the case with the branch industry UNITAS – which was created to defend the right to organize – since it violates this concept by using the term “branch”. This union does not meet the necessary conditions for this, nor to call itself a “trade union grouping”, which raises particular and special issues with which this court is not in agreement, ... since it considers that the matter in hand is effectively an abuse of law on the part of the plaintiff. In short, Mr. Héctor Rodríguez Peña’s request for trade union immunity cannot be supported by the court, since his case is not entirely typical, as has been recorded in similar decisions. For this reason, the union’s claims are abusive, since it is using a new trade union grouping which does not have the aims set out in article 39 of the Constitution, but rather the aim of avoiding retirement (which annuls trade union immunity) because it grants certain workers the privilege of not being dismissed or affected in their employment activities unless for a reason previously described by a labour judge on the basis of protecting the right to organize, as has been observed. In this case, Mr. Rodríguez Peña has defended his job security by employing a legitimate legal concept but in an almost abusive manner, and for this reason the court cannot uphold his case on the basis of the facts as presented and given the special nature of the case.
8. 296. The Government states that domestic legislation concerning the inclusion of trade unions on the Ministry’s trade union register has not been the subject of observations by the Committee of Experts on the Application of Conventions and Recommendations and that, in the present case, the national administrative authorities concluded that the trade unions did not fulfil the legal requirements for registration. The Government undertakes to keep the Committee informed with regard to the legal actions brought to contest the decisions made by the Ministry of Social Protection.
9. 297. With regard to item (h), concerning the alleged dismissals of trade union officers and members who enjoyed trade union immunity in their capacity as union founders and of other trade union members as a result of the creation of USITAC, the Government states that the Ministry of Social Protection is not competent to pursue investigations intended to achieve reinstatement of or payment of damages to the workers dismissed, inasmuch as it falls within the competence of the labour judges. The Government states that Cervecería Unión S.A. has reported that some workers “joined” the non-existent trade union USITAC, and were dismissed, allowing for the normal procedures to be exhausted, on the grounds of serious offences having been committed. Those workers who did not agree with this decision brought their case before the ordinary courts, which cleared Cervecería Unión S.A. on all counts. Similarly, the verdict of the First Labour Court of Itagui in the case brought by Mr. Carlos Alberto Monsalve Luján, delivered on 20 October 2003, cleared Cervecería Unión S.A. on the grounds that the alleged trade union immunity did not apply. This verdict was confirmed by the Labour Division of the Upper Tribunal of Medellín on 3 February 2004, on the basis that “the legal creation of the Itagui executive committee of the Trade Union of the Foodstuffs, Beer, Malts, Drinks, Juices, Soft Drinks, Water and Carbonated Drinks Industries of Colombia (USITAC) was not upheld during these proceedings”. Equally, on 6 February 2004, the same court cleared Cervecería Unión S.A. on all counts in the case brought by Mr. Omar de Jesús Ruiz. This verdict was confirmed by the Upper Court of Medellín.
10. 298. With regard to item (i), concerning the actions taken by the enterprise in order to suspend the trade union immunity of William de Jesús Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Government states that the enterprise has ceased proceedings to lift trade union immunity since they were no longer necessary, given that William de Jesús Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo did not enjoy trade union immunity as the Itagui executive committee of SINALTRAINBEC did not fulfil the minimum requirements for its existence, and as such it cannot take valid actions or be representative, since no body which does not have legal capacity can be the subject of rights or obligations.
11. 299. With regard to item (j), concerning the dismissal of members of the complainant organization SINALTRAINBEC, the Government states that the company has reported that:
    • ... given the length of service with the company of the members of this trade union, some members voluntarily opted for the early retirement scheme, which offers conditions far above the average, such as monthly allowances which exceed the basic salary, social security cover, retirement bonuses, and interest-free loans to the value of the last monthly allowance before the date on which the old age pension is awarded by social security. For their part, some other workers opted to retire by mutual consent, and in these cases the company paid a very representative cash bonus.
    • According to the company’s statement, all workers, regardless of trade union membership, could have benefited from the early retirement scheme or requested retirement by mutual consent, provided that they fulfilled the appropriate requirements. This is why the early retirement scheme and bonus on retirement by mutual consent have been taken up by workers in a wide range of grades, including heads of department, heads of area, secretaries and auxiliaries, among others.
12. 300. With regard to item (k), concerning the untimely closure of COLENVASES, and the forwarding of verdicts, it should be pointed out that in January 2000 the company and the Government submitted a report which explained in detail the procedure followed in the closure of COLENVASES, appending documents concerning the complaints presented by SINALTRABAVARIA, none of which was successful. Similarly, the verdicts given by the jurisdictional authorities in the proceedings brought by SINALTRABAVARIA, which were likewise unsuccessful, were provided. The company and the Government have on various occasions given ample explanation of the aforementioned closure, submitting resolutions and verdicts. The Government does not understand, therefore, what has happened to this information and to the additional documents submitted. The Government requests the Committee to pay more attention to replies submitted. The Government further states that the resolutions issued by the then Ministry of Labour and Social Security are currently the subject of debate before the administrative judicial authorities.
13. 301. With regard to item (l), concerning disciplinary measures against members of SINALTRABAVARIA, the Government states that the Ministry of Social Protection, by resolution No. 000105 of 13 January 2004, resolved the complaint presented by Mr. Nelson Germán Zarate against Bavaria S.A. regarding a disciplinary measure against him, and that the Ministry decided to refrain from taking administrative enforcement measures against the company. The decision was not appealed and was duly made final and archived.
14. 302. The Government states that, in general, a trade union has recourse to administrative and legal channels to uphold any rights it feels have been infringed, noting that the administrative authorities monitor and control compliance with labour law, while the legal authorities consider controversies which merit value judgements in order finally to establish how a right should be recognized. The Government adds that, according to the company, Mr. Nelson Germán Zarate Carvajal brought ordinary labour proceedings against Bavaria S.A. to obtain a declaration of illegality in respect of the sanction imposed by the company, which was resolved by a verdict delivered on 11 June 2004, which cleared Bavaria S.A. and has been made final.
15. 303. Similarly, Mr. José Angel Molina Arévalo took action against Bavaria S.A. in order to obtain a declaration of illegality in respect of the disciplinary measure imposed. The case was heard by the Twentieth Labour Court of the Bogotá Circuit, which considered that no evidence of compliance with one of the conventional requirements had been presented to the court, making the measure illegal, and consequently ordered payment of wages equal to 60 days’ salary, which were paid to the plaintiff together with the appropriate legal costs. The company states that this exhausted the channels available for disciplinary measures. The Government expresses its profound surprise at the section of the recommendation in which it is invited to “take measures” to adapt its legislation and legal procedures in line with Conventions Nos. 87 and 98.
16. 304. With regard to item (m), concerning anti-union discrimination presented by SINALTRABAVARIA (pressure on workers to resign from the trade union, denial of trade union leave, delay on the part of the Ministry of Social Protection in carrying out inspections to confirm anti-union activities in the enterprise and in the registration of new executive committees, and the hiring by the enterprise as a labour cooperative of workers that it had previously dismissed), the Government states, with regard to pressure on workers to resign from the trade union, that as yet the union has been unable to prove its claims, since there exists neither a verdict convicting the company nor an administrative decision sanctioning the company for the aforementioned pressure.
17. 305. Regarding the denial of trade union leave, the Government states that Bavaria S.A. has not been convicted of the alleged denial of trade union leave. Regarding the delay on the part of the Ministry of Social Protection in dealing with matters brought to its attention, the Ministry has fulfilled its duties and obligations in accordance with the powers given to it in law. A different situation arises when, through lack of legal interest on the part of the trade union, complaints have to be archived, which is currently happening in the Thirteenth Inspectorate, which allowed a period of two months for the trade union to register interest in the investigation filed under no. 7898, dated 4 April 2003. When this period expired on 11 July 2004, no interest had been registered and the case is now waiting to be archived.
18. 306. Regarding the registration of trade union executive committees, the Government reiterates that such bodies must act within the law and their own statutes, and thus any actions which contravene the provisions thereof cannot be endorsed by the Ministry of Social Protection. However, the members of such bodies can form new bodies by fulfilling the legal requirements. Finally, Bavaria S.A. has clarified that no cooperatives formed by dismissed staff are operating at the company.
19. 307. With regard to item (o), concerning the failure to implement the Committee’s recommendation for the reinstatement of or payment of full compensation to Mr. Romero, the Government reports that, in its verdict of 20 June 2000, the Upper Tribunal of Medellín revoked the verdict given by the Second Labour Court of Itagui, which had cleared Cervecería Unión S.A. in the case brought by Mr. Romero. The Tribunal ordered the company to pay Mr. Jaime Rodrigo Romero González the sum of $28,360,500 in damages for wrongful dismissal and $1,511,614.60 in indexing. The Labour Annulment Division of the Supreme Court of Justice decided on 12 September 2001 not to annul the above verdict. On 21 November 2001, once all the legal processes had been completed, the company, complying with the verdict of the Upper Tribunal of Medellín, proceeded to pay the amounts owed in damages and indexing, to which had been added payment of costs. The total value of the sum paid was thirty-eight million, eight hundred and thirty-three thousand, seven hundred and forty-eight pesos and eight cents ($38,833,748.08).
20. 308. With regard to item (p), concerning SINALTRAINBEC’s allegations regarding the dismissal without cause of SINALTRAINBEC officials William de Jesús Puerta Cano, Luis Fernando Viana Patiño, Edgar Darío Castrillón Múnera and Alberto de Jesús Bedoya Ríos for alleged serious disciplinary offences, despite their being SINALTRAINBEC officials and protected by trade union immunity as the founders of USTIBEA, the Government states that in Colombia, as in other countries, the food industry differs from the alcoholic beverages industry, and this gives rise, naturally and not as an expression of trade union discrimination, to the impossibility of forming “branch unions” bringing together workers from both types of industry. It was for this reason, and not for those alleged by the complainants, that the Territorial Directorate of Cundinamarca issued resolution No. 001662 in April 2004, refusing to register the trade union USTIBEA. This refusal is in line with the requirements that the Committee on Freedom of Association has formed on the basis of the text of Conventions dealing with freedom of association, and is not the product of an arbitrary decision by the administration but corresponds to formal requirements which have previously been set out clearly and precisely in legislation. Regarding the dismissal of union officials William de Jesús Puerta Cano, Luis Fernando Viana Patiño, Edgar Darío Castrillón Munera and Alberto de Jesús Bedoya Ríos, the Government states that, taking good manufacturing practices as a starting point for implementing quality assurance systems, and in order to comply with state regulations in this area, and to develop the powers it has, as an employer, to organize training activities to that end, the company arranged training for staff in the bottling section, where the above workers are employed. They failed to comply with instructions by not attending the training, as is explained in the reply sent by the company. The sanctions imposed by the company for failing to comply with instructions were not the result of trade union activity on the part of these union officials, but of their disobedience.

C. The Committee’s conclusions

1. 309. With regard to the recommendation contained in paragraph 360(b) of the 334th Report, concerning the alleged dismissing and sanctioning of workers belonging to SINALTRABAVARIA for participating in a strike at the company on 31 August 1999, the Committee notes the information supplied by the Government that in one of the cases brought the company was ordered to pay damages to one of the dismissed workers, a decision which was appealed by both the company and the worker, and that the other case is still awaiting a verdict. The Committee recalls that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 56] and requests the Government to take the necessary measures to expedite the judicial procedure under way and to continue to keep it informed in this regard.
2. 310. With regard to subparagraph (e) of the recommendations concerning the untimely closure of enterprises, the dismissal of many trade union officers and members of various branches, and pressure so that they accept a voluntary retirement scheme, the Committee takes note of the information provided by the Government according to which SINALTRABAVARIA has not taken any legal measures against resolution No. 00015 of 10 January 2003, in which the Ministry of Social Protection refrained from sanctioning Bavaria S.A., finding, as a result of the appropriate investigation, that there had been no closures, but rather voluntary retirement of workers, and that the aforementioned administrative act was confirmed by decree on 24 February 2004. The Committee also notes that, according to the Government’s information, the actions brought by some workers before the labour courts to annul the conciliation agreements signed as a result of the retirement scheme were all decided in favour of the company, since it was considered that the workers had decided freely and voluntarily to accept the retirement scheme offered by the company.
3. 311. With regard to subparagraph (f) of the recommendations concerning the dismissal of trade union officers at the Caja de Crédito Agrario, in disregard of trade union immunity and in contravention of the rulings ordering the reinstatement of a number of these officers, with regard to which the Council of State considered in a resolution that the individual rights of the applicants were safeguarded by acknowledgement of the arrears of wages owed from the time the posts were abolished until the notification of an administrative act setting out the reasons why reinstatement was not possible, the Committee notes the Government’s statement that 60 out-of-court conciliation settlements were reached, between workers protected by trade union immunity and the company in liquidation, and that 58 resolutions were issued in respect of 64 plaintiffs, stating the physical and legal impossibility of reinstatement, and releasing and paying to the former workers the wages and benefits arrears owed from the time the posts were abolished until the notification of an administrative act declaring reinstatement to be impossible. The Committee further notes that, at present, 34 trade union immunity proceedings are still awaiting a ruling. The Committee requests the Government to take the measures necessary to ensure, bearing in mind the time elapsed, that the procedures still to be completed for payment of salaries and benefits to the remaining workers are finalized quickly, and to keep it informed in this regard.
4. 312. With regard to subparagraph (g) of the recommendations concerning the refusal to register the trade union organizations USITAC, SINALTRABET and UNITAS on grounds of legal flaws, the Committee notes the Government’s statement that the trade unions affected have not appealed the administrative decisions refusing registration and that they have therefore been made final. The Committee also notes the verdict delivered on 30 June 2004 by the Labour Division of the Upper Tribunal of Bogotá, confirming that the trade unions did not fulfil the necessary legal requirements for their formation and establishing the existence of an abuse of law by the founder members in seeking to form new organizations. The Committee once again reminds the Government that Article 2 of Convention No. 87, ratified by Colombia, states: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” This right therefore gives rise to two possibilities: either joining an existing organization or forming a new one, independent of those already established. Similarly, the Committee recalls that, although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations [see Digest, op. cit., para. 248]. The Committee thus requests the Government to guarantee respect for this principle and to take measures to ensure that, as soon as the minimum requirements are fulfilled, the authorities proceed with registration of the trade unions USITAC, SINALTRABET and UNITAS.
5. 313. With regard to subparagraph (h) of the recommendations concerning the alleged dismissals of trade union officers and members who enjoyed trade union immunity in their capacity as union founders and of other trade union members as a result of the creation of USITAC, the Committee had requested the Government to guarantee the rapid and adequate functioning of legal procedures and to indicate whether the enterprise sought judicial authorization before the dismissal and, if not, to indicate whether the trade union officers concerned had lodged the corresponding appeals and what was the outcome. The Committee notes the Government’s statement that according to information supplied by Cervecería Unión S.A., some workers who joined the trade union USITAC, which had been declared non-existent as a result of its registration being refused, were dismissed, allowing for the normal procedures to be exhausted, on the grounds of serious offences having been committed; the workers who disagreed brought their cases before the ordinary courts, which cleared Cervecería Unión S.A. on all counts, on the grounds that the workers did not enjoy trade union immunity, given that, as the Committee has observed in the previous paragraph of this case report, the organization USITAC had had its registration refused for failing to fulfil certain legal requirements. These legal decisions have been confirmed by the appeal courts.
6. 314. With regard to subparagraph (i) of the recommendations concerning the actions taken by the enterprise in order to suspend the trade union immunity of William de Jesús Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Committee notes the Government’s statement that the enterprise has ceased proceedings to lift trade union immunity, given that William de Jesús Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo did not enjoy trade union immunity as the Itagui executive committee of SINALTRAINBEC did not fulfil the minimum requirements for its existence, and as such could not take valid actions. The Committee requests the Government to inform it as to whether the union officials have been finally dismissed and to give the reasons for such action being taken.
7. 315. The Committee observes that this point is related to subparagraph (p) of the Committee’s recommendations concerning SINALTRAINBEC’s allegations regarding the subsequent dismissal without cause of SINALTRAINBEC officials and founders of the Trade Union of Workers in the Beverages and Foodstuffs Industry (USTIBEA), who also include William de Jesús Puerta Cano, together with Luis Fernando Viana Pariño, Edgar Darío Castrillón Munera and Alberto de Jesús Bedoya Ríos, on the grounds of serious disciplinary offences. The Committee notes that, according to the Government, the officials were dismissed for not attending a training meeting. The Committee requests the Government to take measures to ensure that an independent investigation is carried out to establish whether these dismissals took place following suspension of trade union immunity, bearing in mind that, according to the information supplied by the Government, workers can only be reinstated once they have begun the appropriate legal action, and to keep it informed of any legal action begun or cases brought with this aim. The Committee recalls that if the competent authorities determine that the dismissals were of an anti-union nature, the unionists in question should be reinstated in their posts.
8. 316. As regards the legal impossibility to form industry unions grouping workers of various types of industry, the Committee recalls that, in conformity with Article 2 of Convention No. 87, workers have the right to form organizations of their own choosing and consequently it is for workers to determine the union structure they desire.
9. 317. With regard to subparagraph (j) of the recommendation concerning the dismissal of members of the complainant organization SINALTRAINBEC, the Committee notes the Government’s statement that, according to the company, some members were dismissed with just cause for violating the company’s working rules and other applicable regulations, while others voluntarily accepted an early retirement scheme. The Committee requests the Government to keep it informed of any legal proceedings brought in respect of these dismissals and early retirement schemes.
10. 318. The Committee observes that this point is closely related to subparagraph (n) of the Committee’s recommendations in its previous examination of the case, when it requested the complainant organization SINALTRAINBEC to provide further information regarding the dismissal of members through an early retirement scheme. The Committee observes in this regard that the complainant has not provided any additional information.
11. 319. With regard to subparagraph (k) of the recommendations concerning the closure of the COLENVASES plant, leading to the dismissal of 42 workers and seven union officials without trade union immunity being suspended and without complying with the Ministry of Labour’s resolution which authorized the closure but ordered the prior application of clauses 14 and 51 of the collective agreement in force, the Committee notes the Government’s statement that in January 2000 the company and the Government submitted a report which explained in detail the procedure followed in the closure of COLENVASES, appending documents concerning the complaints presented by SINALTRABAVARIA and a copy of the verdicts given by the jurisdictional authorities in the proceedings brought by SINALTRABAVARIA, all of which found in favour of the company and expresses its surprise that this information was not taken into account by the Committee. The Committee considers that all the information submitted by the complainants and by the Government has been duly taken into account. The Committee observes, however, that in this case the legal proceedings concerned are those subsequently brought against resolutions Nos. 2169, 2627 and 2938 on this matter before the administrative judicial authorities, in respect of which the Government stated in a previous examination of the case [see 332nd Report, November 2003, para. 455] that it would provide a copy of the relevant decisions as soon as they were issued. This being the case, the Committee again requests the Government to keep it informed of the results of the above legal proceedings and to send a copy of the decisions made.
12. 320. With regard to subparagraph (l) of the recommendations concerning disciplinary measures against members of SINALTRABAVARIA, the Committee notes that, according to the Government, the ordinary legal proceedings brought by the workers concerned were resolved in one case in favour of the company and in the other in favour of the plaintiff. In the latter case, the Committee notes the Government’s statement that damages were duly paid to the worker and that all the legal proceedings brought against Bavaria S.A. in this regard were thereby exhausted. The Committee also notes the information supplied by the Government that, in situations of this nature, a trade union has recourse to administrative and legal channels to uphold any rights it feels have been infringed, noting that the administrative authorities monitor and control compliance with labour law, while the legal authorities consider controversies which merit value judgements in order finally to establish how a right should be recognized.
13. 321. With regard to subparagraph (m) of the recommendations concerning anti-union discrimination presented by SINALTRABAVARIA (pressure on workers to resign from the trade union, denial of trade union leave, delay on the part of the Ministry of Social Protection in carrying out inspections to confirm anti-union activities in the enterprise and in the registration of new executive committees, and the hiring by the enterprise as a labour cooperative of workers that it had previously dismissed), the Committee notes the Government’s statement with regard to pressure on workers to resign from the trade union that, as yet, the union has been unable to prove its claims, since there exists neither a verdict convicting the company nor an administrative decision sanctioning the company for the aforementioned pressure. The Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 696]. The Committee requests the Government to ensure the full application of this principle.
14. 322. With regard to the allegations concerning the denial of trade union leave, the Committee notes the Government’s statement that Bavaria S.A. has not been convicted of the alleged denial of trade union leave. The Committee observes that the Government does not clearly specify whether proceedings have been brought against the company in this regard and, if so, whether they found in favour of the company. The Committee requests the Government to keep it informed in this respect. In any event, the Committee recalls that, in accordance with paragraph 10 of the Workers’ Representatives Recommendation, 1971 (No. 143), workers’ representatives should be afforded the necessary time for carrying out their representation functions and that, while workers’ representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld [see Digest, op. cit., para. 952]. The Committee requests the Government to ensure respect for these principles in the future.
15. 323. With regard to the delay on the part of the Ministry of Social Protection in dealing with matters brought to its attention, the Committee notes that, according to the Government, the Ministry has fulfilled its duties and obligations in accordance with the powers given to it in law, but that, on various occasions, complaints have been archived through lack of legal interest on the part of the trade union.
16. 324. With regard to the registration of trade union executive committees, the Committee notes that the Government reiterates that trade unions must act within the law and their own statutes, and that, if they do not, then they cannot be taken to be legally constituted by the Ministry of Social Protection, but that, nevertheless, the members of such bodies can form new bodies by fulfilling the legal requirements. The Committee also notes that, according to the Government and information supplied by Bavaria S.A., no cooperatives formed by dismissed staff are operating at the company.
17. 325. With regard to subparagraph (o) of the recommendations concerning the failure to implement the Committee’s recommendation for the reinstatement of or payment of full compensation to Mr. Romero, the Committee notes that, in its verdict of 20 June 2000, the Upper Tribunal of Medellín ordered the company to pay Mr. Jaime Rodrigo Romero González the sum of $28,360,500 in damages for wrongful dismissal and $1,511,614.60 in indexing, a decision which was confirmed by the Labour Annulment Division of the Supreme Court of Justice on 12 September 2001. Consequently, on 21 November 2001, once all the legal processes had been completed, the company, complying with the verdict of the Upper Tribunal of Medellín, proceeded to pay the amounts owed in damages and indexing, to which had been added payment of costs.