Informe provisional - Informe núm. 328, Junio 2002

1. 125. The Committee examined this case at its meeting in May-June 2001 [see the Committee’s 325th Report, paras. 269-337]. The Official Employees’ Association of the Municipality of Medellín (ADEM) and the Public Employees’ Trade Union of the Municipality of Medellín (SIDEM) presented new allegations in communications dated 20 April 2001, the Trade Union Association of Employees of the National Penitentiary and Prison Institute (ASEINPEC) presented new allegations in a communication dated 18 May 2001, the Colombian Association of Banking Employees (ACEB) presented new allegations in a communication dated 17 August 2001, the Trade Union of Workers of Sintéticos S.A. (SINTRASINTETICOS) presented new allegations in a communication dated 10 December 2001 and the National Union of Textile Industry Workers (SINTRATEXTIL) presented new allegations in a communication dated 11 June 2001.
2. 126. The Government sent partial observations in communications dated 23 May, 12 and 22 June, 4 September and 19 November 2001 and 8 January 2002.
3. 127. 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), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 128. In its previous examination of the case in May 2001, the Committee made the following recommendations on the allegations that remained pending [see 325th Report, para. 337]:
2. (a) As regards the allegations concerning refusal to register the new members of the national board, the executive committee and the complaints committee of UTRADEC, the Committee requests the Government to take the necessary measures to ensure that they are registered and to keep it informed in this respect.
3. (b) As regards the allegations concerning denial of trade union leave in Evaristo García ESE Valle University Hospital, presented by the Trade Union of Workers of Valle University Hospital (SINSPUBLIC), the Committee requests the Government and the complainant to inform it whether a judicial appeal has been lodged against the administrative decision which found that the denial of trade union leave did not constitute a violation of the right to organize and, if so, to communicate the content of the court decision.
4. (c) As regards the allegations concerning denial of trade union leave and subsequent dismissal of trade union officers for having taken such leave in the Santa Fé de Bogotá administration, presented by the Trade Union of Public Employees of the Transit and Transport Secretariat of Santa Fé de Bogotá (SETT), the Committee requests the Government to take the necessary measures to ensure that inquiries are initiated into these allegations and, if they are found to be true, to proceed with the immediate reinstatement of the dismissed officers.
5. (d) As regards the allegations concerning violation of the right to strike presented by the National Union of Banking Employees (UNEB) (use of security forces, threats of dismissal, detention of and attacks on trade union officers) and the Trade Union of Workers of the Water Supply and Sewerage Enterprise of Bogotá (SINTRACUEDUCTO) (attacks on and detention of officers and members), the Committee requests the Government to take the necessary measures to ensure that the necessary inquiries are initiated immediately and, in the light of the information obtained, to send its observations in this respect.
6. (e) As regards the allegations concerning failure to transfer to the trade union the dues withheld by the Textiles Rionegro enterprise, presented by the National Union of the Textile Industry Workers (SINTRATEXTIL), Medellín branch, the Committee requests the Government to take measures to ensure that the necessary inquiries are carried out and, if the allegations are found to be true, to ensure that the Textiles Rionegro enterprise transfers without delay to the SINTRATEXTIL the dues of its members which have been withheld. The Committee requests the Government to keep it informed in this respect.
7. (f) As regards the allegations of anti-union discrimination (dismissals of officers and members, denial of access to the workplace, non-recognition of the employment relationship between employees and the enterprise) in the Cervecería Unión enterprise, presented by the Trade Union of Loaders of Antioquia (SINTRACOAN), the Committee requests the Government to keep it informed of the final outcome of the inquiry which has been initiated.
8. (g) As regards the allegations presented by the General Confederation of Democratic Workers (CGTD), SINTRATEXTIL, Sabaneta branch, CGTD, Antioquia branch, SINTRATEXTIL, Medellín branch, the Trade Union of Public Servants of the FAVIDI District Housing Fund (SINTRAFAVIDI) and the Trade Union of Workers of Lorencita Villegas de Santos University Children’s Hospital (SINTRAINFANTIL), concerning the following anti-union acts: (1) dismissal of the trade union officers of SINTRAYOPAL (Ms. Sandra Patricia Russi and Ms. María Librada García); (2) dismissal of a trade union officer of the Arauca town hall (Ms. Gladys Padilla); (3 dismissal of (nine) officers and members of Quintex S.A.; (4) dismissal of officers and members of the trade union of Puerto Berrío municipality (57 members, including the members of the executive board of the Trade Union of Municipal Workers of Puerto Berrío and 32 members of the Association of Employees of the Municipality of Puerto Berrío); (5) dismissal of 34 workers of Textiles Rionegro who had peacefully and legally demanded their wages; (6) dismissal of and refusal to reinstate trade union officers Ms. Lucy Jannet Sánchez Robles and Ms. Ana Elba Quiroz de Martín of FAVIDI, on grounds that the previous administrative procedure had not been exhausted; (7) application to lift the trade union immunity of eight officers of Textiles Rionegro for having demanded the workers’ wages; (8) the application to lift the trade union immunity of members of the executive board in the Radial Circuito Todelar de Colombia enterprise; and (9) persecution, harassment and intimidation of the trade union officers of Lorencita Villegas de Santos University Children’s Hospital by the public authorities; (10) physical attacks on the union member Claudia Fabiola Diáz Riascos by the security agents at Banco Popular; and (11) occupation by the armed forces of the Central Hospital Julio Mendez Barrenech, the Committee requests the Government to take the necessary measures to ensure that inquiries are initiated immediately in order to ascertain whether the allegations are true and, if the allegations of anti-union discrimination and persecution are found to be true, to take the necessary measures for such acts to cease and to remedy their consequences.
9. (h) The Committee requests the Government: (1) in the light of the information obtained in the course of the administrative inquiry under way, to communicate its observations concerning the dismissal of Mr. Juan José de la Rosa Grimaldos, president of ASEINPEC; and (2) to take the necessary measures to ensure that the competent authorities initiate an inquiry immediately into the dismissal of the officers of ASEINPEC, Medellín branch, and to communicate its observations in this respect.
10. (i) As regards the allegations presented by the UNEB concerning the repression of trade union officers after submitting a list of demands in Citibank, the Committee requests the Government to initiate inquiries into these allegations and to communicate its observations in this respect.
11. (j) As regards the allegations of the UNEB concerning the following acts of interference: (1) an attempt to prevent a vote to determine whether to hold a strike or to have recourse to an arbitration tribunal in Banco Popular; and (2) the imposition of a compromise obliging the workers to have recourse to an arbitration tribunal instead of a strike, in Banco Bancafé, the Committee requests the Government to initiate the necessary inquiries and to communicate its observations in this respect.
12. (k) As regards the allegations concerning denial of the right to collective bargaining in the public administration presented by the National Trade Union of Public Employees of the Ministry of Labour and Social Security (SINALMINTRABAJO), SINTRAINFANTIL, SINSPUBLIC, the National Trade Union of Colombian Charitable Institutions (SINTRABENEFICENCIAS) and SINTRAFAVIDI, the Committee requests the Government to take the necessary measures to ensure that the right of public servants to collective bargaining is respected, in accordance with the provisions of Conventions Nos. 151 and 154 which have been recently ratified.
13. (l) The Committee requests the Government and the complainant CGTD to send a copy of the document which, according to the CGTD, prevents wage increases from being agreed upon for persons receiving more than twice the statutory minimum wage.
14. (m) As regards section 14 of Act No. 549, which obliges the employer to modify unilaterally the content of signed collective agreements, the Committee requests the Government to take the necessary measures to repeal it so as to ensure that the right to free and voluntary collective bargaining is respected. In addition, the Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
15. (n) As regards the constitution of a compulsory arbitration tribunal in Banco Bancafé, the Committee requests the Government to take the necessary measures to rescind it, in order to ensure that the will of the parties concerning the settlement of the collective dispute is respected.
16. (o) As regards the allegations concerning non-compliance with the collective agreement by the Bogotá Water Supply and Sewerage Enterprise (failure to pay the agreed wage increase, dismantling of the Ramón B. Jímeno High School, recruitment of new employees displacing former workers, non-recognition of the staff committee) and American Airlines (failure to hire Colombian employees, imposition of flight itineraries, adjustment of the basic wage and remuneration for Sundays and holidays other than that agreed upon), presented by SINTRACUEDUCTO and the Colombian Association of Flight Attendants (ACAV), the Committee requests the Government to keep it informed of the results of the inquiry made into the allegations presented by the SINTRACUEDUCTO, and to initiate the necessary inquiries into the allegations presented by ACAV and, if the allegations are found to be true, to ensure compliance with the terms of the agreements. The Committee requests the Government to keep it informed in this respect.
17. (p) The Committee requests the Government to take the necessary measures to ensure that the workers of Alcalis de Colombia, Alco Ltda., dismissed in accordance with judicial decisions which declared reinstatement to be impossible, are paid full compensation without delay, in accordance with the ruling of the judicial authorities. The Committee requests the Government to keep it informed in this respect.
18. (q) As regards the allegations presented by SINTRATEXTIL, Medellín branch, concerning the conclusion of a collective contract in the Confecciones Leonisa S.A. enterprise granting more advantages to non-members than to the members of the trade union, the Committee requests the Government to take the necessary measures to ensure that inquiries are initiated into this matter and to communicate its observations.
19. (r) As regards non-compliance with Presidential Directive No. 02 of 2 March 1999 on consultation of trade unions during the restructuring process in the Ministry of Labour and Social Security, the Committee expresses the firm hope that in future the trade unions concerned will be fully consulted in restructuring processes.
20. (s) The Committee requests the Government, bearing in mind Mr. Alvaro Rojas’ position as chairperson of a local trade union executive committee, to consider the possibility of reinstating this worker, who was dismissed in the context of the restructuring process in the Ministry of Labour and Social Security.
21. (t) As regards the allegations presented by the Trade Union of Health Workers and Employees of Magdalena (SINTRASMAG) concerning the dismissal of trade union officers in the Magdalena local government, the Magdalena district health service and the Julio Méndez Barreneche Central Hospital, in the context of a restructuring process, the Committee requests the Government to take the necessary measures to ensure that an inquiry is carried out to determine whether priority has been given to workers’ representatives concerning their retention in employment and to communicate its observations in this respect.
22. (u) As regards the allegations of anti-union discrimination in restructuring processes presented by the Association of Workers of Banco Central Hipotecario (ASTRABAN) and SINTRASMAG, the Committee requests the Government to take the necessary measures to ensure that an inquiry is initiated and, in the light of the information obtained, to communicate its observations in this respect.
23. B. New allegations
24. 129. In their communication of 20 April 2001, the Official Employees’ Association of the Municipality of Medellín (ADEM) and the Public Employees’ Trade Union of the Municipality of Medellín (SIDEM) state that, on 31 January 2001, 153 public servants in the employment of the Municipality of Medellín founded the Public Employees’ Trade Union of the Municipality of Medellín (SIDEM). On 1 February 2001, the Constitution or Statute of the founding members, with their signatures, was sent to the Mayor of Medellín and the Ministry of Labour and Social Security of Antioquia Region. Since the union was founded, a total of 1,740 public servants in the employment of the Municipality of Medellín had joined. On 8 February 2001, the documents required by national law for the registration of the organization as a trade union had been sent to the Ministry of Labour and Social Security. On 22 February 2001, SIDEM’s legal representative had been notified of an edict from that Ministry requiring SIDEM to bring its statutes into compliance with the legislation. On 20 April 2001, SIDEM sent the amendments and the documentation necessary for the Ministry to enter the union into the official register of trade unions.
25. 130. The complainant organization states that, in accordance with Act No. 617 of 2000, regulating financial matters in the regional and municipal entities of Colombia, the Mayor of Medellín issued Decrees Nos. 165 and 300, both dated 2001, abolishing the posts of 2,200 public employees. The Mayor ordered the dismissal of 83 public servants in the employment of the Municipality of Medellín, although notification had already been made to the effect that they were founders or members of the newly established Public Employees’ Trade Union of the Municipality of Medellín (SIDEM). (Under article 406, as amended by Act No. 50/90, article 57, the founders of a trade union enjoy trade union immunity from the day of its foundation until two months following its registration; the overall period shall not exceed six months.)
26. 131. The complainant organization states that SIDEM, jointly with other trade unions (ADEM, ANDAT and ASDEM) embarked on a series of trade union activities to favour dialogue and cooperation between the Mayor and the trade unions. Consequently, on 20 February 2001, the Mayor signed a memorandum of understanding with the unions; notably, this committed the former to respect workers’ rights and freedom of association. During the negotiations, the Mayor admitted that the administration had agreed to dismiss the 83 workers who were members of SIDEM and, under paragraph 7 of the Memorandum, agreed to order that they be reinstated in their posts; however, this has still not been done.
27. 132. The complainant organization also alleges that the Mayor ordered that an application be made to the district labour court for authorization or permission to dismiss 1,320 SIDEM members. This was an attempt to eliminate SIDEM for, if the labour authorities authorize the removal of immunity, the organization will be reduced to a minimal membership, which will seriously damage freedom of association.
28. 133. As regards the 83 workers who were dismissed despite the fact that they had trade union immunity because of their status as SIDEM founders or members, the complainant organization states that 55 had applied for protection of their basic right to freedom of association. Initially these cases had been decided against the workers and SIDEM because the judges of the Colombian courts considered that there was another judicial means of determining whether the public servants in question enjoyed trade union immunity. The functional superiors of the judges were now processing the refutation brought by the union members and SIDEM; in the final instance, the decisions could be reviewed by the Constitutional Court, in keeping with the importance of the subject.
29. 134. According to the complainant organization, the Mayor was abolishing posts that were essential to the proper service of the municipality and community, in order then to have the same functions that were previously carried out by the dismissed workers conducted through the conclusion of a service contract with individuals or legal entities. This legal mechanism of a service contract is used to prevent or impede the exercise of freedom of association and avoid the payment of salaries and social benefits as established by article 32 of Act No. 80 (1993), which provides that under no circumstances do service contracts give rise to a worker-employer relationship or social benefits and shall be concluded strictly for the essential objective. This is in violation of Act No. 2400 (1968), article 2, paragraph 5, which provides that appropriate posts shall be established for ongoing functions and service contracts may not be used to cover such functions.
30. 135. An example of the above is that article 1, paragraph (c) of Decree No. 300 dated 23 February 2001 provides for the abolition of the posts of two guards and 177 caretakers and, in the same month that the decree was issued, the administration advertised in a periodical, stating that it was “interested in receiving proposals from prospective contractors for the dog patrol and armed guard service at the Municipal Administrative Centre and the external offices of the Municipality of Medellín”, with an assigned budget of 3,002,000,000 million pesos. It should be noted that the 177 dismissed caretakers previously worked at the external offices of the Municipality of Medellín.
31. 136. The Official Employees’ Association of the Municipality of Medellín (ADEM) has used various approaches to ask the administration to allow it to participate in the administrative restructuring under the powers granted it by the Council of Medellín under Agreement 03 of 2001, but this request was refused.
32. 137. The complainant organization states that, if the Mayor does not comply with the Memorandum of Understanding concluded with the trade unions, ADEM, SIDEM, ANDAT and ASDEM made use of the right of assembly and peaceful demonstration granted them under article 37 of the National Constitution to call for a 24-hour stoppage of work on 6 March 2001, which benefited the working class considerably by drawing attention to the labour situation in the city.
33. 138. ADEM adds that, on 5 March 2001, one day before the stoppage, the Mayor threatened through the media (press, radio and television) that an example would be made of any public servants who participated in such activities. Indeed, some 150 public servants are now the subject of disciplinary investigations under Act No. 200 of 1995 or the Unified Disciplinary Code, in violation of the due process to be followed in all judicial or administrative cases (National Constitution, article 29).
34. 139. In its communication dated 18 May 2001, the Trade Union Association of Employees of the National Penitentiary and Prison Institute (ASEINPEC) observes that, in exercise of the legal powers granted by the 1991 Political Constitution of Colombia, article 39 of which establishes the workers’ right to found trade unions and, as public employees of the National Penitentiary and Prison Institute (INPEC) (article (3), it proceeded to establish ASEINPEC in accordance with the law and, having met the legal requirements, received approval from the Ministry of Labour and Social Security and the registration number 000449 on 22 February 1994.
35. 140. It adds that, in the past six years, 6,000 members throughout Colombia have joined ASEINPEC, including over 90 per cent of the INPEC workforce. Since the union has been active, there has been a considerable improvement in the working conditions of Colombian prison staff, which were precarious and violated the human dignity not only of the staff but also of the prisoners. Important agreements had been reached with previous national governments and INPEC administrations, leading to improvements in salaries, benefits, social and working conditions, trade union guarantees and benefits, social security and health and safety matters.
36. 141. Four of the trade union’s directors, Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García had been murdered by outside groups for carrying out their trade union functions and denouncing corruption ranging from directors-general to prison employees.
37. 142. According to the complainant organization, the state authorities, including the Public Counsel, the Office of the Public Prosecutor and the National Controller’s Office were fully aware of these actions. In view of the continual death threats against national and regional trade union leaders, INPEC had asked previous administrations to provide personal protection and personal weapons to trade union leaders.
38. 143. Some trade union leaders had received death threats directly, in writing and by telephone; there had been harassment and the organization’s authorities had been reported to be breaking the law.
39. 144. The trade union leaders had been tried, disciplined, transferred and denied state protection, and the source of these anti-trade union activities was not known. They had been cleared of wrongdoing in all cases.
40. 145. It is stated that the current Director-General of INPEC has, jointly with the Ministry of Justice, begun a clean-up operation within INPEC, targeting the trade union for elimination by dismissing selectively the ASEINPEC union leaders at national and local level, failing to follow the legal procedures and violating freedom of association, trade union immunity, the trade union guarantees and freedoms laid down by the National Political Constitution, internal legal provisions and international ILO instruments. The Director-General was appointed on 15 February 2000 and proceeded on 16 February to suspend 120 trade union leaders throughout the country because of a peaceful one-day action in support of prison security, conducted by ASEINPEC in all of the country’s prisons to protest against repressive labour policies used to the detriment of workers, as well as a prison privatization and amalgamation project that would increase numbers by 150 per cent at the cost of poorer working conditions, inhuman working situations involving high-risk activities that violate human rights within prisons abandoned by the State, overpopulation, unhealthy conditions and a lack of medical and legal assistance. According to the complainant organization, the Director-General of INPEC proceeded, under Resolution No. 0873 dated 17 February 2000, to suspend over 120 trade union leaders without pay for a period of 90 days, amending their working conditions without the prior authorization of the relevant labour tribunal. Following the 90-day suspension and the peaceful protest, the Director-General of INPEC proceeded, on 16 May 2000, to strip of their posts 80 trade union leaders who were members of the National Governing Council and section councils in order to eliminate ASEINPEC.
41. 146. A campaign was embarked upon to pressure workers into renouncing their union membership, and over 3,000 workers left the union, leading to the closure of branches in cities including Medellín, Valledupar, Manizales, Calarca, Pereira, Cali and Baranquilla. As a result of these attempts to destroy the union, its surviving leaders, including Elver Sultan Correa, María Elsa Paez García, Luis Fernando Sanabria Amaya, Rafael Gómez Mejía and Oscar Tarazona Guarin were transferred to other locations without the prior authorization required by the national labour legislation. They were transferred to regions with a high paramilitary presence, such as Puerto Boyacá, Puerto López and Jericó (Antioquia), which placed their lives in serious danger.
42. 147. The complainant organization adds that ASEINPEC has lost its leaders because of the illegal dismissals by the Director-General of INPEC, has had its capacity for trade union action reduced and has lost over 3,000 members, arbitrarily removed by the INPEC administration, whose Director-General has, in violation of the trade union’s autonomy and the statutory and legal proceedings, taken it upon himself to strip members of their trade union affiliation, without the prior consent of the National Governing Council of ASEINPEC, purely in order to reduce the number of members. The following action has been taken in response to such aggression against the union:
43. – a criminal prosecution against the Director-General of INPEC and others for violation of trade union guarantees; this is currently at the appeal stage;
44. – an administrative labour dispute brought before the Ministry of Labour and Social Security concerning violation of the provisions of the Substantive Labour Code and international labour standards. The inspector responsible for examining the case was never willing to carry out legal inspections in the sections where restrictions were in place, even where sufficient evidence was produced, including 13 cases referred to a higher court in which the reinstatement of the trade union officials had been ordered. Likewise, no account was taken of the protection orders granted in the union’s favour on the grounds of violation of freedom of association, nor the findings of the single judicial inspection, which established that ASEINPEC’s leaders were not permitted access to the union office at the headquarters of INPEC. Similarly, it was verified by the Ministry of Labour and Social Security that the Director of INPEC had arbitrarily cut the union’s single telephone line, which it used to communicate with its 6,000 members. On 27 April, the judge pronounced resolution No. 00452 to the effect that no measures be taken against INPEC; an appeal is currently under way;
45. – appeals to the judicial authorities for trade union rights and other legal guarantees deriving from trade union immunity to be protected: both the individual cases and the collective case brought by ASEINPEC as a legal entity to seek protection of the right to work and freedom of association, trade union immunity and due procedure were rejected by all of the Colombian judicial authorities. These cases were thrown out by the Constitutional Court of Colombia, with the exception of a collective case brought on behalf of ASEINPEC and currently under consideration before the Constitutional Court under the number 332879/2000, which has not yet been reviewed.
46. 148. The ordinary labour court was called upon to settle the various individual cases for reinstatement under trade union immunity, which it has taken between three and five years to settle.
47. 149. Finally, ASEINPEC states that the Director-General of INPEC, aware that the National Governing Council of ASEINPEC needs to rent premises in order to conduct its trade union activities and that the cost will be met by the Bogotá members, has begun steps to transfer the members to locations far from the capital, leading many members to leave the union: from 700, the membership has fallen to less than 250.
48. 150. In its communication dated 17 August 2001, the Colombian Association of Banking Employees (ACEB) alleges that, since the neo-liberal policies began, there has been a wave of dismissals in banks and financial corporations, in which a total of some 35,000 employees lost their jobs, in many cases in violation of the existing precarious labour legislation. One of the most serious cases is that of Mr. Hugo Leonel Gándara Martínez, an employee of Banco BBVA Ganadero, a subsidiary of the Spanish consortium Banco Bilbao Vizcaya Argentaria. The manager of the bank in Corozal, Sucre administrative district, and the regional vice-president accused Mr. Gándara and other workers of committing an illegal act and made a criminal complaint. However, it was impossible to provide proof of these false allegations and the ordinary court therefore cleared Mr. Gándara of the charges, as a result of which the bank dismissed him. According to the complainant, this is clearly a case of trade union harassment, since the worker’s only offence was that he belonged to a trade union which had been subjected to similar acts previously, always involving the regional vice-president.
49. 151. In a communication received on 10 December 2001, the Trade Union of Workers of Sintéticos S.A. (SINTRASINTETICOS) alleges that, for a period of approximately three years, the enterprise has clearly been persecuting the trade union’s members and representatives. The management has pressured and forced certain workers to leave the union; as a result, the union now has only 29 members where it previously had 150.
50. 152. There have been mass resignations from the union: between May and June 2000, 26 workers gave up their membership, all of them because they had been threatened by the management and feared dismissal if they did not leave the union. Such dismissals are carried out in a particular way, with the workers first being sent a letter of dismissal and then a letter of voluntary resignation.
51. 153. The following workers were dismissed in this manner: Gabriel Arturo Martínez Tirado, Gildardo Antonio Arboleda Suárez, Jaime González, Rafael Pareja, Carlos Ruiz, Joel Cardona, José Abad García, Guillermo Márquez, Diego Obando, Gabriel Martínez, Fabian Taborda and Mario de Jesús Sánchez.
52. 154. The complainant adds that, a few days before the trade union assembly that elected the Governing Council took place in April 2000, the dismissal of Mr. Gabriel Arturo Martínez was announced by the enterprise in order to gain votes for one of the candidates who supported the position of the enterprise. Since the votes were not forthcoming, a programme of dismissals and reprisals began against all workers associated with the trade union.
53. 155. The workers who participated in the assembly on 2 April 2000 were pressured into voting for the enterprise’s candidates and dismissed if they did not agree. This led to the dismissal of Rafael Pareja, Gabriel Martínez, Gildardo Arbolera and John Jairo Pulgarin. Mr. Pulgarin’s dismissal was in any case unlawful because he was a member of the Council and enjoyed trade union immunity. All trade union leaders were dismissed as soon as their six-month immunity expired, including Juan Manuel Córdoba Usuga and Antonio María Carvajal Rueda.
54. 156. All of the dismissals were wrongful since the only argument was that they had been preceded by various calls and pressure by the enterprise management for the workers to leave the union, renounce the benefits of membership or vote in the Governing Council elections for candidates selected by the enterprise. All of the unionized workers who were dismissed were replaced by temporary staff without any job security, who can be dismissed at any time even though they belong to the union. The objective is to ensure that the current collective agreement applies only to union members.
55. 157. Although the various complaints have been presented to the Ministry of Labour, no proper investigation was carried out and no steps have been taken to address the problem. The enterprise continues to ignore the regulations prohibiting the harassment of unionized staff and union-related dismissals.
56. 158. Particularly alarming for the union are the threats made against a number of Governing Council members, including Carlos Vasquez and Miguel Angel Pérez (killed in a transport accident), who received death threats by telephone and in writing; although they made complaints to the Office of the Public Prosecutor, nothing was done to address the problem.
57. 159. A complaint was made to Branch No. 67 of the Office of the Public Prosecutor, in Medellín, against various members of the enterprise management. It was alleged that they had violated freedom of association and exerted illegal pressure on Gustavo Tobon Clavijo, Jorge Ivan Arredondo and Guillermo Márquez, but to date there has been no outcome.
58. 160. The union and the confederation to which it is affiliated have written to the enterprise to report all of these anomalies, but it has not been possible to arrange a meeting.
59. 161. The enterprise does not wish to enter into any communication with the union or hold meetings of the industrial relations committee, housing committee or sports committee. There is total apathy as regards anything relating to the union. Some labour requests have also been presented.
60. 162. On 29 June 2000, an application was made to protect the union’s basic rights of freedom of association and collective bargaining, but it was rejected.
61. 163. A number of trade union leaders were recently called for questioning after making use of trade union leave and were then punished in an illegal and unjust manner that violated the collective agreement. Moreover, the fact that many workers have been forced to leave the union has left the latter short of resources, although all of the enterprise’s workers are covered by the collective agreement.
62. 164. In its communication dated 11 June 2001, the Girardota and Itagüí branches of the SINTRATEXTIL union allege the following:
63. – Fabricato company. (1) There is violation of the collective agreement, including in its provisions relating to medical assistance, average salaries and the failure to increase salaries in 2000; (2) workers are subjected to anti-union harassment (denial of trade union leave needed to ensure the smooth running of the organization and granting of such leave only on an unpaid basis; hindrances to meetings of members and workers within the enterprise); (3) the imposition of a compensatory shift, which it is claimed is permitted by the Ministry of Labour and based on article 175 of the Labour Code, when there are no continuous production processes in Fabricato; (4) creation of associated labour cooperatives as a front for exploiting temporary workers even more and avoiding any possible claims or demands; (5) failure to pay social security dues and VAT and deduction of monies from workers with failure to forward them to the relevant body, creating pension problems.
64. – Enka de Colombia S.A. company. (1) Non-fulfilment of agreements between the president of the company and the SINTRATEXTIL union regarding the relocation of workers transferred from Itagüí to Girardota, which provided for the relocation of trade union branches in offices equivalent or similar to those in Itagüí with retention of the category of offices listed in the agreement. There are currently some workers who are not assigned or work in shifts that leave them disadvantaged economically and in terms of their trade union work, since they are required to remain inside the enterprise all day long. The administration is trying to wear the workers out so that they leave the enterprise; (2) violation of the collective agreement through the conclusion of contracts with companies to conduct work directly covered by the collective agreement, of an ongoing nature and integral to the production process; (3) working days that are so long that they violate the overtime legislation because there are continuous production processes in the enterprise and the machinery cannot be allowed to stop; (4) changes of shift that do not allow workers to rest sufficiently between shifts, especially given that some workers have to commute two hours to work; (5) fixed-term contracts of 15, 20 or 25 days used continuously for a period of years; (6) perceived persecution and discrimination against SINTRATEXTIL workers in Enka, who are given the hardest tasks and blocked when they participate in committees establishing benefits under agreements; and (7) persecution of the workers who participate in the occupational health committee, who are prevented from carrying out their functions as part of the committee, to the point that they are not allowed to participate in investigations into accidents leading to less than 20 days of invalidity. The complainant organization considers that these workers are elected democratically by their colleagues and deserve to be protected by law in order that they can carry out their functions with full autonomy; this could be achieved by granting them trade union immunity.
65. – Coltejer company. The complainant states that there are countless problems with labour legislation violations at Coltejer, the most serious being dismissals. Since late 1998, the enterprise has been pursuing a policy of dismissals on the grounds of a supposed economic crisis. Some 600 workers have seen their weekly wage shrink sharply by between 20 and 40 per cent as a result of the loss of rights acquired through agreements, such as production bonuses, shift and night-time bonuses and mechanical inspection bonuses. It is alleged that, 15 days after signing an agreement in 2000, the company applied Act No. 550 on economic restructuring to freeze certain provisions in the agreement on non-legal services, although the workers through their trade unions had made a considerable contribution of some 4,000 million pesos over three years. The company did not stop at this: despite its commitment to pay the money owed in full, it once again failed to fulfil the restructuring agreement once it was concluded. To date, the company has not deposited the severance pay of the workers under Act No. 50, has not paid trade union dues since 19 February 2001 and has not paid social security, pension and compensation dues, etc. The money is deducted from workers’ weekly wages but is not forwarded to the relevant funds.
66. – Textiles Rionegro company. Of the company workforce of 3,200, only 1,200 workers remain employed at the factories that are closing. While the enterprise is in the process of amalgamating, there remain two trade unions (one industrial union and one enterprise-based union), as permitted under Colombian law. The industrial trade union currently has less support than the enterprise-based union because of the company’s favour for the latter, shown clearly in its dealings with workers. The company violates the collective agreement and the law as it sees fit; for example, workload distribution is regulated by the collective agreement but disregarded by the company; the dismissed workers have been replaced by four times as many workers from Medellín at a higher cost, who are covered by a different collective agreement to carry out tasks (without any special qualification) that have been carried out by local staff, in some cases for up to 30 years. The complainant states that Textiles Rionegro is breaking the law by wrongfully withholding pay for social security and trade union dues when it has not forwarded the dues to the relevant funds since 19 February 2001. It currently has a pensions backlog of up to two years. In 1999, it withheld salaries for three consecutive weeks and the workers complained to the Ministry of Labour, after which 32 workers were dismissed, 25 of them union members. Some of the judicial proceedings had been settled in the workers’ favour at the second hearing, but the company had appealed successfully to the High Court.
67. C. The Government’s reply
68. 165. In its communications dated 23 May, 12 and 22 June, 4 September and 19 November 2001 and 8 January 2002, the Government states, as regards the allegations presented by SINTRATEXTIL concerning the serious violation of the right of assembly and freedom of association through the illegal and arbitrary suspension of labour contracts at the Quintex S.A. enterprise, that the enterprise is in forced liquidation and thus decided to suspend its workers’ labour contracts indefinitely as of 31 October 1996, on the basis of article 51, subsection 1(a) of the Substantive Labour Code on force majeure that prevents execution of a contract, article 64 of the Civil Code and article 1 of Act No. 95 of 1990, which regards as grounds for force majeure acts of authority exercised by a public servant. In accordance with the above, Quintex S.A. availed itself of resolution No. 410-4350 dated 3 September 1996 of the Societies Supervision Office, which ordered the forced liquidation of the enterprise for the sole purpose of selling the debtor’s assets in order to ensure the due payment of the monies owed (article 95 of Act No. 222 of 1995).
69. 166. The Government adds that article 51 of the Substantive Labour Code, as amended by Act No. 50 of 1990, article 4, subsection 1, indicates that the labour contract is suspended, amongst other reasons, "as a result of force majeure or fortuitous events that temporarily prevent its execution ...".
70. 167. The grounds envisaged in subsection 1 require notification to be provided to the Ministry of Labour and Social Security, with justification; this was provided by Quintex S.A. subsequent to the suspension of the labour contracts. Consequently, the Ministry of Labour and Social Security, in resolution No. 002798 dated 23 November 1998, issued by the Chief of the Supervision and Control Division, fined the enterprise 20 statutory minimum salaries, the equivalent of 4,076,520 pesos. Effectively, the enterprise submitted its notification to the administrative authorities on 1 November 1996, when the receiver of Quintex S.A. had informed the workers on 25 October of the indefinite suspension of their contracts as of 31 October, although according to the regulations the notification should have been made immediately.
71. 168. The Government emphasizes that the purpose of the notification is to verify the facts that give rise to the suspension of labour contracts; on this basis, its immediateness is dependent on the extent to which the responsible authorities attain the objective of verifying the cause of the suspension. Although the deputy inspector of the Cundinamarca Regional Directorate of the Ministry of Labour and Social Security declared through resolution No. 000371 dated 24 February 1997 that the force majeure or fortuitous occurrence had not been verified (a resolution that remains in force in view of the fact that the proceedings begun against it were settled in favour of the decision made by the inspector in question), Quintex S.A. is continuing to suspend contracts indefinitely. This suspension process affects the members of the SINTRATEXTIL Governing Council, who enjoy trade union immunity. An application for reinstatement has therefore been submitted to the judicial authorities. In most cases, judges and magistrates order Quintex S.A. to pay the salaries and benefits outstanding, but not to reinstate the workers, since the employer-worker relationship is considered not to have been broken as the labour contracts are merely suspended.
72. 169. The Government states that, given the dismissals by Quintex S.A. during its forced liquidation between 24 August and 21 September 1999, the Antioquia Regional Directorate of Labour and Social Security issued resolution No. 1112 dated 13 July 2000, fining Quintex S.A., in forced liquidation, the sum of 1,300,500 pesos, equivalent to five minimum legal salaries, for failing to pay interest on severance pay since 31 January 1999 and not paying for legal services for the staff dismissed on 24 August and 21 September 1999. At the same time, it refrained from ruling on the status of the dismissals and on the collective dismissals, since the civil servants of the Ministry of Labour and Social Security are not competent to recognize "the benefits stemming from trade union immunity, such as protection from dismissal without just cause previously established by the labour judge, as provided for by article 405 of the Substantive Labour Code, as amended by article 1 of Decree No. 204 of 1957, in accordance with article 406 of the same Decree, in turn amended by article 57 of Act No. 50 of 1990".
73. 170. As regards the allegations submitted by SINALTRAMINTRABAJO, SINTRAINFANTIL, SINSPUBLIC-SINTRABENEFICENCIAS and SINTRAFAVIDI on the refusal of the public administration to participate in collective bargaining, the Government states that it is obliged to respond concerning the implementation of Conventions Nos. 151 and 154 only from 8 December 2001 onwards, i.e. one year after the relevant ratification instruments were deposited, and in most cases the Ministry of Labour and Social Security has prevailed on the parties to reach amicable settlements.
74. 171. As regards the use of arbitration tribunals to settle differences between enterprises and trade unions, the Government states that, in Colombia, no collective labour dispute can remain unresolved. In the case in question, relating to Banco Bancafé, the Government of Colombia applied article 61 of Act No. 50 of 1990, in accordance with articles 452, 453 and subsequent of the Substantive Labour Code and Decree Law No. 525 of 1956. Where relevant, Decree No. 801 of 1998 is also applicable: this facilitates the settlement of collective labour disputes involving minority trade unions. None of this conflicts with ILO Convention No. 98, since this legal mechanism is applied at the end of the collective bargaining process when the parties have been unable to reach total or partial agreement.
75. 172. As regards the lack of trade union consultation in cases of restructuring, as alleged by SINALMINTRABAJO, the Government states that it consulted the union in December 1999 on the best way of managing the restructuring. The union did not agree to a solution of the issue because of the Government’s refusal to consider in entirety a petition sent to the administration responsible for applying ILO Convention No. 154, which at that time had not been ratified by Colombia.
76. 173. As regards the request for the reinstatement of Mr. Alvaro Rojas, vice-president of the Santander branch of SINALMINTRABAJO, the Government reports that he was reinstated by the Ministry of Labour in November 2000.
77. 174. As regards the Government’s refusal to register the Executive Committee and National Council of UTRADEC, the Government states that the Ministry of Labour and Social Security registered the relevant bodies on 4 August 2000 in resolution No. 001748 of the Cundinamarca Regional Labour Directorate, which was duly executed.
78. 175. As regards the refusal to grant trade union leave at the Evaristo García University Hospital in Valle, as alleged by SINSPUBLIC, the Ministry of Labour resolved this dispute through the Valle regional administration by means of resolution No. 1782 dated December 2000, in which the University Hospital was fined. Likewise, on 29 December 2000, the Government promulgated Decree No. 2813, which provides an interpretation of article 13 of Act No. 584 of 2000. The Decree stipulates that trade union representatives in public services, working for public bodies in all parts of the state sector, have the right to paid trade union leave in order to manage the union.
79. 176. As regards the dismissal of trade union leaders for having used trade union leave in the Santa Fe de Bogotá administration, as alleged by the Trade Union of Public Transport Employees of Santa Fe de Bogotá (SETT), the Government states that the technical support group for the cases made representations on 15 August last to the Cundinamarca regional administration in order to announce an administrative labour dispute with the Santa Fe de Bogotá Transit and Transport Executive for violation of freedom of association. A report on the final result of the investigation will be sent later.
80. 177. As regards the allegations of violation of the right to strike, as submitted by SINTRACUEDUCTO, the Government states that, in resolution No. 00863 dated 16 May 2001, the Ministry of Labour and Social Security revoked in entirety resolution No. 01438 dated 4 July 2000, which declared illegal the partial stoppages of work by staff at the Water Supply and Sewerage Enterprise of Bogotá.
81. 178. As regards the allegations of anti-trade union discrimination (dismissals, prohibition on entering the workplace) at the Cervecería Unión brewery, presented by SINTRACOAN, the Government states that, in resolution No. 00233 dated 16 February 2001, the Ministry of Labour and Social Security declined to fine the Cervecería Unión S.A. for violation of freedom of association, given that resolution No. 194 dated 12 May 1998, which represented the final stage of the administrative labour investigation No. 5285 of 15 December 1997 does not contradict resolution No. 00233 dated 16 February 2001 and the grounds for not fining the enterprise are the existence of a previous verdict on the same facts by the same regional administration. That resolution was the subject of an application for review by the complainants, which gave rise to resolution No. 00575 dated 4 April 2001, upholding in entirety resolution No. 00233 dated 16 February 2001, which was duly executed.
82. 179. As regards the dismissal of the SINTRAYOPAL trade union leaders, Ms. Sandra Patricia Russi and Ms. María Librada García, the Government states that the technical support group for cases under consideration and submitted to the ILO made representations to the Yopal regional administration on 16 August 2001 in order to seek an administrative labour investigation against Yopal municipality and observations on the final result of the investigation will be sent in due course.
83. 180. As regards the dismissal of the trade union leader Ms. Gladys Padilla, of Arauca town hall, the Government reports that the Mayor of Arauca states that his administration, in accordance with its constitutional and legal powers and the instructions of the Municipal Council, expressed in Agreement No. 012 of 1998 and with the purpose of attaining the social objectives of the State, restructured the municipal administration in its functions, organization and development and in the public interest, which required the abolition of tasks and posts, affecting not only career public servants but also holders of official posts.
84. 181. This difficult situation, which affects most municipalities, was analysed by the Congress of the Republic. The latter issued Act No. 508 of 1999, article 15 of which granted local administrations powers to implement taxation and financial reorganization programmes, ordering that the earmarked income of local administrations be applied to such programmes rather than to its usual target until the financial situation was resolved. Such restructuring could not fail to affect certain public servants and their union, whose interests would have to give way to the greater public or social interest. The plan for personnel reorganization presented in 1999 was governed, amongst other things, by the impossibility of self-financing, given the disparity between income (taxes) and operating costs. This, and the parameters established by the Ministry of Finance, gave rise to the priority need to reduce such costs, including staffing costs, and consequently, in fulfilment of the existing regulations and the constitutional and legal framework, certain labour contracts were terminated unilaterally, giving priority to the public interest over individual interests and following the legal precedents adopted by the High Court in labour appeal session sentence No. 10779 dated 17 July 1998. In fulfilment of Decrees Nos. 1572 and 2504 of 1998, and following the relevant technical investigations, the central administration adjusted the staffing levels to the available financing and abolished a large number of posts as of 5 May 2001.
85. 182. Some posts, naturally, are occupied by trade union leaders. In the case of the particular three trade unionists, the posts will be abolished as soon as the trade union immunity is lifted by the relevant labour judge and the matter is being handled by the municipal administration. Consequently, to date, the union’s governing council has, despite the various staffing reorganization processes, continued to press the case.
86. 183. As regards the dismissal of trade union leaders and members in the Puerto Berrío municipality, the Government states that the technical support group for cases under consideration and submitted to the ILO made representations to the Puerto municipal labour inspectorate (Antioquia) on 16 August in order to seek an administrative labour investigation against Puerto Berrío municipality for the dismissal of 32 members of the municipal employees’ association and 57 members and associates of the Governing Council of the Union of Municipal Workers of Puerto Berrío. Once information becomes available, it will be sent to the Committee. As regards the dismissal and refusal to reinstate the leaders of FAVIDI, the Government reports that the autonomy granted to public authorities under the National Constitution means that it is the courts that have the right to decide on the reinstatement of Ms. Lucy Jannet Sánchez Robles and Ms. Ana Elba Quiroz de Martín, who have not exhausted governmental remedies for their respective cases.
87. 184. As regards the proceedings to lift trade union immunity at Textiles Rionegro and Radial Circuito Todelar de Colombia, the Government is unaware of the grounds for the respective applications to lift trade union immunity.
88. 185. As regards the persecution, harassment and intimidation at the Lorencita Villega de Santos University Children’s Hospital, the Government reports that the technical support group for cases under consideration and submitted to the ILO made representations to the Cundinamarca regional administration on 16 August in order to seek an administrative labour investigation against the Lorencita Villega de Santos University Children’s Hospital for anti-union harassment and observations on the final result of the investigation will be sent in due course.
89. 186. As regards the physical aggression against the trade unionist Ms. Claudia Fabiola Díaz Riascos by the security staff of the Banco Popular and the militarization of the Julio Méndez Barreneche Central Hospital, the Government reports that a letter was sent by the technical support group for cases under consideration and submitted to the ILO to the Coordinator of the Office for the Defence of Human Rights of the Ministry of Labour and Social Security, who is the competent official to examine and report on such cases.
90. 187. As regards the dismissal of the trade union leader Juan de la Rosa Grimaldos and other Medellín branch leaders, as alleged by ASEINPEC, the Government, though the Coordinator for Inspection and Control of the Cundinamarca regional administration of the Ministry of Labour and Social Security, issued resolution No. 000452 dated 26 April 2001, which declines to apply administrative sanctions against INPEC because there is insufficient evidence that the staff members were dismissed as a consequence of their union membership or that the dismissals were intended to impede freedom of association. Consequently, the president of ASEINPEC appealed and the appeal was upheld by the Coordinator for Inspection and Control in a Decree dated 30 May 2001. The Cundinamarca regional administrator used the following criteria to settle the matter: the first step was to take into account article 405 of the Substantive Labour Code, which deals with the guarantee afforded these workers; and the second was to apply Act No. 584 of 2000, article 12, which identifies which workers enjoy trade union immunity. It was found that there was no qualification issued by a labour judge relating to the dismissal or transfer of the given workers (in this case the ASEINPEC trade union leaders) since, in this case, there is no document providing authorization by a competent judge in the terms established by article 405 of the Substantive Labour Code. By removing and transferring these workers without fulfilling the requirements of article 405, INPEC was impacting on the trade union organization and was evidently in violation of article 39 of Act No. 50 of 1990, subsection 2(b), which covers acts committed by employers against freedom of association, in this case dismissal or impairment of working conditions in connection with activities carried out to facilitate trade union operation. For the above reasons, the Cundinamarca regional director revoked resolution No. 000452 dated 26 April 2001 and decided to fine INPEC 50 statutory minimum salaries through Administrative Decree No. 001072 dated 24 July 2001, which was duly executed.
91. 188. As regards the allegations of repression against trade unionists in connection with the presentation of a petition to Citibank by UNEB, the Government reports that the technical support group for cases under consideration and submitted to the ILO made representations to the Cundinamarca regional administration on 15 August 2001 in order to seek an administrative labour investigation against Citibank and observations on the final result of the investigation will be sent in due course.
92. 189. As regards the allegations of interference presented by UNEB, the Government states that the technical support group made representations to the Cundinamarca regional director on 15 August 2001 to ask him to open an administrative labour investigation against Banco Popular and observations on the final result of the investigation will be sent in due course.
93. 190. The Committee had asked the Government and the CGTD to send a copy of the government document which, according to the CGTD, prevented salary increases being agreed where a worker earned more than the equivalent of two minimum salaries. The Government states that it does not know to which document the complainant organization is referring and would be pleased to receive a copy. Nevertheless, the Government states that it is fulfilling an order for the protection of constitutional rights that requires it to raise all salaries on the central government scale by the current rate of inflation and that it is doing so within the limits of its tax and financial framework. Thus, public employees who earn less than two minimum salaries receive the full increment retroactively from 1 January 2001, while public servants who earn more than two minimum salaries receive 2.5 per cent from the same date. The payment is pending awaiting approval by the legislative authority of the relevant budget increment sought by the national Government.
94. 191. As regards article 14 of Act No. 549 of 1999, which obliges the employer to amend unilaterally the content of the collective agreements, the Government reports that Judgement No. 1187 dated 13 September 2000 declares that articles 13 and 14 of that Act cannot be executed.
95. 192. As regards the failure to implement the collective agreement, as alleged by SINTRACUEDUCTO and ACAV, the Government states that, in connection with the investigation under way in the EEAB, the technical support group for cases under consideration and submitted to the ILO made representations to the Cundinamarca regional administration on 15 August 2001 in order to seek the final result of disputes Nos. 0917 and 27915, of January and November 2000, which are currently under consideration. The response will be sent once it is available.
96. 193. As regards the failure to conclude contracts with Colombian employees, the imposition of flight itineraries, the amendment of the basic salary and pay for work on Sundays and public holidays in a different form to that agreed by American Airlines, a collective agreement has been signed between ACAV, SAVAA and American Airlines, valid from 19 April 2001 to 30 April 2003, which includes, amongst other subjects, the contracting of Colombian employees; American Airlines commits itself to continuing its policy of contracting Colombian flight assistants for flights into and out of Colombia. In any case, American Airlines will comply with the prescriptions of Colombian law relating to the proportion of Colombian employees. The agreement also contains provisions on flight itineraries, amendment of the basic salary and pay for work on Sundays and public holidays.
97. 194. As regards the allegations presented by SINTRATEXTIL, Medellín branch, regarding the conclusion of a collective agreement in Leonisa S.A., the company’s legal representative replied in letter No. 033682 dated 9 August 2001 to the technical support group for cases under consideration and submitted to the ILO to the effect that the Leonisa company observes equality of pay and benefits, so that there is no difference between the economic benefits, salary and other benefits contained in the national collective agreement and those in the enterprise collective labour agreement. This is based on the results of the proceedings for the protection of constitutional rights undertaken by the SINTRATEXTIL union in 1995, which obliged the enterprise retroactively to recognize the salary increase of the unionized staff members in keeping with the fact that the national collective agreement and enterprise collective labour agreement were concluded on different dates and the annual salary rise differed from one to the other. As regards collective bargaining rights, the enterprise reports that SINTRATEXTIL exercises that right, recognized by the enterprise, such that, every two years since 1980, a new collective labour agreement has been signed. It adds that the enterprise has never denied the workers’ right to freedom of association; indeed, it actively supports that right and has always made the relevant deductions for union dues and forwarded them promptly to SINTRATEXTIL. As regards trade union leave, the legal representative mentions that the enterprise has applied the legal requirements and the provisions of Conventions rigorously and promptly and hence this subject is included in the collective labour agreement.
98. 195. As regards the dismissal of trade union leaders in the Magdalena district administration, the Magdalena health service and the Julio Méndez Barreneche Central Hospital of Santa Marta, as alleged by SINTRASMAG, the technical support group for cases under consideration and submitted to the ILO made representations to the Magdalena district director on 15 August 2001 in order to seek an administrative labour investigation against the Julio Méndez Barreneche Central Hospital. Observations on the final result of the investigation will be sent in due course.
99. 196. As regards the allegations of anti-union discrimination in the restructuring processes, the technical support group for cases under consideration and submitted to the ILO made representations to the Cundinamarca regional director on 15 August in order to seek an administrative labour investigation and observations on the final result of the investigation will be sent in due course.
100. 197. As regards the dismissed workers of Alcalis de Colombia Ltd., for whom the Committee had requested immediate compensation, the Government reports that the Alcalis de Colombia Ltd. company was established in 1970 as a joint venture to refine salt, manufacture products from sodium chloride and operate limestone deposits and coalmines, thus obtaining a monopoly on the import and export of these products. It was unable to operate productively because of high labour costs and obsolete technology and machinery, which caused the national industry to operate very inefficiently and led to serious environmental damage.
101. 198. In February 1993, the National Planning Department presented a document analysing the historical situation of the enterprise to date and recommended that it be liquidated because of its unprofitability.
102. 199. Article 370 of the Commercial Code states that, in addition to the general reasons for liquidation, a limited company shall be liquidated when it incurs losses that reduce its capital to below 50 per cent or the number of partners exceeds 25. This was the reason for the liquidation of Alcalis de Colombia Ltd., which took place in March 1993 under registration No. 650, registered with notarial office No. 30 of Bogotá. In compliance with article 127 of the collective labour agreement, the trade union was notified of the company’s liquidation and the termination of the labour contracts; for this reason, conciliation agreements were concluded between the company and its employees before the Ministry of Labour and Social Security. The agreements provided for the payment of benefits, salaries and compensation, in compliance with article 61(e) of the Substantive Labour Code, which establishes that the liquidation or permanent closure of an enterprise or establishment shall provide grounds for the termination of the labour contract.

D. The Committee’s conclusions

1. 200. The Committee notes that, in analysing this case in connection with acts of anti-union discrimination and persecution at its meeting in May-June 2001, it had requested the Government to take certain measures or communicate information in respect of these matters [see 325th Report, paras. 269-337].
2. 201. Paragraph (a) of the Committee’s recommendations at its meeting in May-June 2001. As regards the allegations concerning refusal to register the executive committee and the national board of UTRADEC, the Committee notes with interest that the Ministry of Labour and Social Security, in resolution No. 001748 of the Office of the Labour Coordinator of the Cundinamarca Regional Labour Directorate, registered those bodies on 4 August 2000.
3. 202. Paragraph (b) of the Committee’s recommendations. As regards the allegations concerning denial of trade union leave in Evaristo García ESE Valle University Hospital, the Committee notes that the Ministry of Labour resolved this dispute through the Valle regional administration by means of resolution No. 1782 dated December 2000, in which the University Hospital was fined. Likewise, in December 2000, the Government promulgated Decree No. 2813, which provides an interpretation of article 13 of Act No. 584 of 2000. The Decree stipulates that trade union representatives in public services, working for public bodies in all parts of the state sector, have the right to paid trade union leave in order to manage the union.
4. 203. Paragraph (c) of the Committee’s recommendations. As regards the allegations concerning denial of trade union leave and subsequent dismissal of trade union officers for having taken such leave in the Santa Fe de Bogotá administration, presented by the Trade Union of Public Employees of the Transit and Transport Secretariat of Santa Fe de Bogotá (SETT), the Committee notes that the Government states that as of 15 August 2001, an administrative labour dispute was launched against the Santa Fe de Bogotá Transport Executive. The Committee requests the Government to keep it informed of the final result.
5. 204. Paragraph (d) of the Committee’s recommendations. As regards the allegations concerning violation of the right to strike and aggression against and detention of union leaders and members at the Water Supply and Sewerage Enterprise of Bogotá, presented by SINTRACUEDUCTO, the Committee takes note of the Government’s information to the effect that, in resolution No. 00863 dated 16 May 2001, the Ministry of Labour and Social Security revoked in entirety resolution No. 01438 dated 4 July 2000, which declared illegal the partial stoppages of work by staff at the Water Supply and Sewerage Enterprise of Bogotá. The Committee notes that the resolution does not concern the issues of aggression against and detention of leaders and members of SINTRACUEDUCTO and, consequently, requests the Government without delay to take measures to carry out the necessary investigations and keep it informed of the result.
6. 205. Paragraph (f) of the Committee’s recommendations. As regards the allegations of anti-union discrimination (dismissals of officers and members and denial of access to the workplace) in the Cervecería Unión enterprise, presented by SINTRACOAN, the Committee takes note of the Government’s information to the effect that, in resolution No. 00233 dated 16 February 2001, the Ministry of Labour and Social Security declined to fine the Cervecería Unión S.A. for violation of freedom of association, given that the allegations had already been the subject of a similar investigation which had upheld the position of the enterprise and been confirmed.
7. 206. Paragraph (g)(1) of the Committee’s recommendations. As regards the dismissal of the trade union officers of SINTRAYOPAL, Ms. Sandra Patricia Russi and Ms. María Librada García, the Committee notes that the Government has asked the Yopal district directorate to conduct the relevant administrative labour investigation. The Committee requests the Government to keep it informed of the results of the investigation and, if the dismissals are found to be anti-union, to take measures immediately to reinstate the two officers in their posts with payment of lost salary.
8. 207. Paragraph (g)(2) of the Committee’s recommendations. As regards the dismissal of Ms. Gladys Padilla of the Arauca town hall, the Committee takes note of the Government’s information to the effect that this is part of the municipal administration’s restructuring, which required the abolition of a large number of posts, including that of the union leader. As regards the remaining leaders, the Government states that the raising of trade union immunity is being awaited in order to dismiss them. The Committee recalls that, in restructuring, priority should be given to the continuing employment of workers’ representatives in order to guarantee their effective protection [see Digest of decisions and principles of the Freedom of Association Committee, 1996, paras. 960 and 961]. In these circumstances, the Committee requests the Government to take this principle into account and reconsider the situation of the trade union leader, Ms. Gladys Padilla.
9. 208. Paragraph (g)(3) of the Committee’s recommendations. As regards the alleged dismissal of nine union leaders and other members at Quintex S.A., presented by SINTRATEXTIL, the Committee notes the Government’s information to the effect that the enterprise is in forced liquidation and thus decided to suspend its workers’ labour contracts indefinitely as of 31 October 1996, on the basis of article 51, subsection 1(a) of the Substantive Labour Code, claiming force majeure. However, according to the Government, the enterprise failed to comply with the requirement to notify the Ministry of Labour and Social Security and was thus fined by the chief of the Supervision and Control Division. Moreover, the deputy inspector of the Cundinamarca Regional Directorate of the Ministry of Labour and Social Security declared that the force majeure or fortuitous occurrence had not been verified (a resolution that remains in force) and yet the enterprise is continuing to suspend contracts indefinitely. The trade union leaders have begun proceedings and judges and magistrates have ordered Quintex S.A. to pay the salaries and benefits outstanding. However, according to the Government, they have not ordered the enterprise to reinstate the workers, since the employer-worker relationship is considered not to have been broken as the labour contracts are merely suspended. As regards the dismissals by Quintex S.A. during its forced liquidation between 24 August and 21 September 1999, the Government reports that the Antioquia Regional Directorate of Labour and Social Security pronounced on 13 July 2000, fining Quintex S.A the equivalent of five minimum legal salaries, for failing to pay interest on severance pay since 31 January 1999 and not paying for legal services for the staff dismissed on 24 August 1996 and 21 September 1999. However, it refrained from ruling on the status of the dismissals and on the collective dismissals, finding these issues beyond its competence. The Committee recalls that protection from acts of anti-union discrimination should include not only hiring and dismissal, but also any discriminatory measures adopted during the period of employment and, in particular, those involving transfers, non-promotion and other prejudicial acts [see Digest, op. cit., para. 695]. The Committee requests the Government to take measures to reinstate the suspended union leaders and members in their posts, with payment of lost salary and, where reinstatement is impossible because of the liquidation of the enterprise, to ensure that they are fully compensated.
10. 209. Paragraph (g)(4) of the Committee’s recommendations. As regards the dismissal of trade union leaders and members in the Puerto Berrío municipality, the Committee takes note that the Government states that there have been representations to the Puerto Berrío municipal labour inspectorate in order to seek an administrative labour investigation. The Committee requests the Government to keep it informed of the development of these proceedings and ensure that the workers dismissed for anti-union reasons be reinstated in their posts, with payment of lost salary.
11. 210. Paragraph (g)(6) of the Committee’s recommendations. As regards the dismissal and refusal to reinstate the leaders of FAVIDI, Ms. Lucy Jannet Sánchez Robles and Ms. Ana Elba Quiroz de Martín, the Committee notes that the Government reports that they have not exhausted governmental remedies for their respective cases. The Committee requests the Government to provide information on the actions taken by the two leaders to date and the results.
12. 211. Paragraph (g)(7) and (8) of the Committee’s recommendations. As regards the proceedings to lift trade union immunity at Textiles Rionegro and Radial Circuito Todelar de Colombia, the Committee takes note of the Government’s statement that it is unaware of the grounds for the respective applications to lift trade union immunity. The Committee requests the complainant organizations to send more information on the allegations in order that the Government may conduct the necessary investigations.
13. 212. Paragraph (g)(10) and (11) of the Committee’s recommendations. As regards the physical aggression against the trade unionist Ms. Claudia Fabiola Díaz Riascos by the security staff of the Banco Popular and the militarization of the Julio Méndez Barreneche Central Hospital, the Committee takes note that the Government reports that a letter was sent to the Coordinator of the Office for the Defence of Human Rights of the Ministry of Labour and Social Security, who is the competent official to examine and report on such cases. The Committee requests the Government to send the response from the Coordinator as soon as it is received.
14. 213. Paragraph (h) of the Committee’s recommendations. As regards the dismissal of the trade union leader Juan de la Rosa Grimaldos and other Medellín branch leaders, as alleged by ASEINPEC, the Committee takes note of the Government’s information that, the Cundinamarca regional director, in response to the trade union’s appeal, fined INPEC 50 statutory minimum salaries because there was no qualification issued by a labour judge relating to the dismissal or transfer of the given workers, which is a requirement of article 405 of the Substantive Labour Code and hence INPEC was violating freedom of association. The Committee requests the Government, on the basis of this decision, to take the necessary measures with a view to reinstating the dismissed union leaders and members in their posts, with payment of lost salary.
15. 214. Paragraphs (g)(9), (i), (j), part one, (o), part one, (t) and (u) of the Committee’s recommendations. As regards the allegations of: (a) persecution, harassment and intimidation at the Lorencita Villega de Santos University Children’s Hospital; (b) repression against trade unionists in connection with the presentation of a petition to Citibank and interference at the Banco Popular, presented by UNEB; (c) failure to comply with the collective agreement presented by SINTRACUEDUCTO; (d) the dismissal of trade union leaders in the Magdalena district administration and the Julio Méndez Barreneche Central Hospital, presented by SINTRASMAG; and (e) anti-union discrimination in restructuring processes presented by the Association of Workers of Banco Central Hipotecario (ASTRABAN), the Committee takes note of the Government’s information that the relevant investigations have been opened by the Cundinamarca regional director. The Committee requests the Government to keep it informed of the final result of the investigations.
16. 215. Paragraph (k) of the Committee’s recommendations. As regards the allegations submitted by SINALTRAMINTRABAJO, SINTRAINFANTIL, SINSPUBLIC-SINTRABENEFICENCIAS and SINTRAFAVIDI on the refusal by the public administration to participate in collective bargaining, the Committee takes note that the Government states that it is obliged to respond concerning the implementation of Conventions Nos. 151 and 154 only from 8 December 2001 onwards and in most cases the Ministry of Labour and Social Security has prevailed on the parties to reach amicable settlements. The Committee repeats its observation that, while a number of other categories of public servants should enjoy the right of collective bargaining under Convention No. 98, this right has been recognized in generalized form for all public servants through the ratification of Conventions Nos. 151 and 154. In these circumstances, the Committee, recalling that collective bargaining in the public administration requires particular forms of application, requests the Government once again to take the necessary measures to ensure that the right of public servants to collective bargaining is respected.
17. 216. Paragraph (l) of the Committee’s recommendations. As regards the copy of the document which, according to the CGTD, prevents wage increases from being agreed upon for persons receiving more than twice the statutory minimum wage, a copy of which was requested by the Committee from the Government and the CGTD, the Committee notes that the Government states that it does not know of such a document but is fulfilling an order for the protection of constitutional rights that requires it to raise all salaries on the central government scale by the current rate of inflation and that it is doing so within the limits of its tax and financial framework.
18. 217. Paragraph (m) of the Committee’s recommendations. As regards article 14 of Act No. 549 of 1999, which obliges the employer to amend unilaterally the content of the collective agreements, the Committee notes that Government reports that Judgement No. 1187 dated 13 September 2000 declares that articles 13 and 14 of that Act cannot be executed. The Committee requests the Government to inform it as to whether this judgement creates a general precedent in case law. The Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
19. 218. Paragraph (n) of the Committee’s recommendations. As regards the use of arbitration tribunals to settle a collective labour dispute at Banco Bancafé, imposed by the Ministry of Labour and Social Security, the Committee takes note of the Government’s statement that, in Colombia, no collective labour dispute can remain unresolved and that, in the case in question, the legal mechanism that facilitated settlement was applied at the end of the collective bargaining process when the parties had been unable to reach total or partial agreement. In this connection, the Committee recalls that recourse to compulsory arbitration when the parties cannot reach a settlement through collective bargaining is admissible in the framework of essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health in all or part of the population) and in cases of conflict in the public services in connection with public servants exercising authority in the name of the State. The Committee repeats its previous observation that the Banco Bancafé workers do not fall into any of these categories or agree with the company that an arbitration tribunal should be established. Consequently, the Committee once more requests the Government to take the necessary measures to reverse the appointment of the compulsory arbitration tribunal at Banco Bancafé in order to respect the will of the parties regarding the settlement of the collective dispute.
20. 219. Paragraph (o)(2) of the Committee’s recommendations. As regards the allegations presented by ACAV concerning the failure to conclude contracts with Colombian employees, the imposition of flight itineraries, the amendment of the basic salary and pay for work on Sundays and public holidays in a different form to that agreed by American Airlines, the Committee takes note of the information provided by the Government to the effect that a collective agreement has been signed between ACAV, SAVAA and American Airlines that complies with the prescriptions of Colombian law relating to the proportion of Colombian employees and the other issues raised by the complainant organization.
21. 220. Paragraph (p) of the Committee’s recommendations. As regards the dismissed workers of Alcalis de Colombia Ltd., for whom the Committee had requested the Government to take measures to ensure compensation, the Committee notes that the Government reports that the enterprise was liquidated in March 1993 in compliance with the provisions of article 370 of the Commercial Code relating to reduction of the capital to below 50 per cent, the union was informed of the reason and the labour contracts were terminated through an act of conciliation concluded with the participation of the Ministry of Labour and Social Security renouncing the payment of the relevant benefits, salaries and compensation.
22. 221. Paragraph (q) of the Committee’s recommendations. As regards the allegations presented by SINTRATEXTIL, Medellín branch, concerning the conclusion of a collective contract in the Leonisa S.A. enterprise, the Committee notes the Government’s statement to the effect that, according to the enterprise, the beneficiaries of the two types of collective agreement are equal; in compliance with the order made as a result of the proceedings to protect constitutional rights initiated by SINTRATEXTIL in 1995, the enterprise was obliged retroactively to reverse the salary increase of the unionized personnel. As to collective bargaining rights, the Government states that the enterprise has concluded collective agreements every two years since 1980. Finally, with regard to trade union leave, the Government states that, according to the enterprise, there has been timely and rigorous compliance with the relevant legal and Convention requirements.
23. 222. Paragraph (s) of the Committee’s recommendations. As regards the dismissal of Mr Alvaro Rojas, vice-president of the Santander branch of SINALMINTRABAJO, in respect of whom the Committee had requested the Government to examine the possibility of reinstatement in his post, the Committee notes with interest that the Government reports that he was reinstated by the Ministry of Labour in November 2000.
24. 223. The Committee notes with regret that the Government has not sent observations on the following recommendations of the Committee at its meeting in May-June 2001 [see 325th Report, para. 337]:
25. 224. (a) Paragraph (d) of the recommendations. As regards the allegations of violation of
    • the right to strike, presented by UNEB, the Committee had requested the Government to take the necessary measures to ensure that inquiries were initiated immediately.
      • (b) Paragraph (e) of the recommendations. As regards the allegations concerning failure to transfer to the trade union the dues withheld by the Textiles Rionegro enterprise, presented by SINTRATEXTIL, the Committee had requested the Government to take measures to ensure that the necessary inquiries were carried out and, if the allegations are found to be true, to ensure that the Textiles Rionegro enterprise transferred without delay to SINTRATEXTIL the withheld dues, as well as to keep it informed in this respect.
      • (c) Paragraph (g)(5) of the recommendations. As regards the allegations relating to the dismissal of 34 workers of Textiles Rionegro who had peacefully and legally demanded their wages, the Committee had requested the Government to take the necessary measures to ensure that inquiries were initiated immediately in order to ascertain whether the allegations were true and communicate its observations.
    • 225. The Committee requests the Government to send its observations relating to these allegations without delay.
26. 226. Finally, the Committee regrets that the Government has not sent its observations on new allegations presented by the complainant organizations since the latest examination of the cases involving:
    • - the Official Employees’ Association of the Municipality of Medellín (ADEM) and the Public Employees’ Trade Union of the Municipality of Medellín (SIDEM): (a) the dismissal by the Municipality of Medellín of 83 employees with trade union immunity; (b) failure to comply with a memorandum of understanding signed on 20 February 2001 agreeing to their reinstatement; (c) the subcontracting of new employees, deprived of the right to freedom of association, to do the work formerly done by the dismissed workers; (d) the lack of consultation in the administrative restructuring process launched by the Council of Medellín in March 2001; and (e) the mayor’s threats to punish all participants in the strike called for 6 March 2001 in response to the failure to comply with the memorandum of understanding;
    • - Trade Union Association of Employees of the National Penitentiary and Prison Institute (ASEINPEC): (a) the murder of four of the trade union’s directors, Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García; (b) the constant threats received by the union’s leaders; (c) anti-union persecution through measures against union leaders including sanctions, disciplinary proceedings and transfers; (d) the dismissal of union leaders in violation of trade union immunity; (e) the suspension of trade union leaders without pay for having conducted a peaceful demonstration; and (f) pressure on members to leave the union;
    • - Colombian Association of Banking Employees (ACEB): the dismissal of a union leader, Mr. Hugo Leonel Gándara Martínez, following criminal proceedings against him in which he was cleared;
    • - Trade Union of Workers of Sintéticos S.A. (SINTRASINTETICOS): (a) pressure and threats by the Odissey Ltd. enterprise to force workers to leave the union; (b) interference by the enterprise in internal union matters; (c) delays in the settlement of proceedings before tribunals relating to violation of freedom of association; (d) sanctions against trade union leaders for making use of trade union leave; and (e) the enterprise’s refusal to hold meetings for collective bargaining;
    • - National Union of Textile Industry Workers (SINTRATEXTIL): (a) at the Fabricato company: (1) there is violation of the collective agreement; (2) trade union leave is denied; and (3) trade union leaders are denied access to the premises; (b) at the Enka company: (1) non-fulfilment of agreements between the President of the company and the union; (2) violation of the collective agreement through the conclusion of contracts with companies to conduct work directly covered by the collective agreement; (3) distribution of the hardest tasks to unionized workers; (c) at the Coltejer company: dismissals on the grounds of restructuring, in violation of a collective agreement; and (d) at the Textiles Rionegro company: (1) favouritism towards one of the enterprise trade unions to the detriment of the industry trade union; and (2) violation of the collective agreement.
27. 227. The Committee requests the Government to send its observations without delay regarding these allegations, and urgently in respect of the allegations of murder, in order that it may formulate its recommendations in full possession of the facts.