Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 353, Marzo 2009

Effect given to the recommendations of the Committee and the Governing Body

1. 69. The Committee last examined this case at its meeting in June 2008 [see 350th Report, paras 47–54]. On the occasion, the Committee made the following recommendations on matters that remained pending.
   • – With regard to the allegations made by the Single Federation of Workers (CUT) dated 15 February 2006 concerning the closure of several Bavaria SA Plants, which led to a drastic decline in the number of union members, in relation to which, according to the Government, the Territorial Directorate of Cundinamarca, Inspectorate No. 10, had launched an inquiry [see 344th Report, para. 45]: The Committee requests the Government to launch an independent inquiry into these allegations without delay so that it can be established whether the plant closures were based on anti-union grounds.
   • – As regards the collection of union dues, on behalf of SINTRAFEC, from non-union workers employed by the National Federation of Coffee Growers of Colombia who benefit from the collective agreement: The Committee observes that the allegations do not refer to the collection of union dues for the 1984–87 period but are new allegations to the effect that no dues are being collected at present from non-union members who benefit from the collective agreement. The Committee therefore requests the Government once again to take the necessary steps to ensure that, where the collection of dues is provided for under the collective agreement in force, this is effected without delay and requests the Government to keep it informed in this respect.
2. 70. In two communications dated 8 June 2008, the Colombian Union of Beverage Industry Workers (SINALTRAINBEC) alleges that in order to destroy the trade union organization, the company Cervunión SA dismissed the following trade union officials of the SINALTRAINBEC section of Itagüí; Luis Fernando Viana Patiño on 19 April 2004; Alberto de Jesús Bedoya Ríos on 29 April 2004; Edgar Darío Castrillón Múnera on 19 April 2004, José Everado Rodas Castrillón on 11 June 2004; Luis Alberto Acevedo on 11 June 2004 and Orlando Martínez Cuervo on 11 June 2004.
3. 71. The complainant trade union and the Single Federation of Workers (CUT) referred to the dismissal of William de Jesús Puerta Cano. The trade union organization denied (contrary to what the Government had stated in a precious examination of the case), that the parties had been summoned to a conciliation hearing.
4. 72. In communications dated 15 September and 21 October 2008, the Government states with respect to the collection of trade union dues from workers not belonging to SINTRAFEC who benefit from the collective agreement, national legislation provides, in order for union dues to be collected for a worker not belonging to a minority trade union organization, that he or she must express their will to benefit from the collective agreement. If this request is not made, the employer is unable to collect any dues without the risk of infringing the Substantive Labour Code, which bans any type of check-off of union dues without the authorization of the worker or unless there are legal grounds. In this case, both SINTRAFEC and the Federation have acknowledged that SINTRAFEC is a minority trade union. In this respect and in accordance with section 470 of the Substantive Labour Code: “Collective agreements between employers and trade unions whose membership does not exceed one-third of the total of all workers in the undertaking (minority trade union) shall only apply to the members of the trade union that have signed these agreements, or to those belonging to or who subsequently joined the trade union”. The Committee notes this information.
5. 73. With respect to the communication sent to the SINALTRAINBEC, the Government states that the judicial authority handed down decisions concerning those dismissed.
6. 74. As regards the case of Luis Fernando Viana Patiño, the judgement handed down by the High Court of Medellín on 5 October 2006 ruled that: “it is not possible to grant the complainant’s request, because as clearly ascertained during the case, the plaintiff’s labour contract had been terminated on just grounds, commensurate with the legal proceeding, and this action was therefore carried out in accordance with the law …”.
7. 75. As concerns the case of Alberto de Jesús Bedoya Ríos, the examining magistrate ruled that; “… the enterprise therefore took all the necessary steps leading to such disciplinary proceedings, in order to reach the decision already known by the plaintiff, given his failure to comply with his contractual obligations and abide by the regulations. Consequently, the enterprise was acquitted of the case brought against it …”.
8. 76. As regards the case of Edgar Darío Castrillón Múnera, the examining magistrate acquitted the enterprise, a ruling that was also upheld in the second instance by the Higher Court of Medellín in the following terms: “it was therefore established that there was a failure to comply with the legal requirements for setting up a trade union, in this case the Itagüí section of SINALTRAINBEC, which was initially registered. This decision was revoked and the section was finally refused registration …”. In the present case, it was considered that the crucial factor in the proceedings, was the decision not to register the union executive committee, which shows that there was no trade union immunity.
9. 77. In this respect, noting that the Government has not referred to the dismissal of Luis Alberto Acevedo, Orlando Martínez Cuervo and William de Jesús Puerta Cano, the Committee requests the Government to inform it on the matter.