Informe provisional - Informe núm. 331, Junio 2003

1. 267. The Committee last examined this case at its November 2002 meeting [see 329th Report, paras. 448-479, approved by the Governing Body at its 285th Session (November 2002)].
2. 268. The Government sent its observations in communications dated 27 December 2002 and 2 January 2003.
3. 269. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 270. At its November 2002 meeting, following its examination of allegations relating to acts of discrimination and persecution against trade union officials and trade unionists in various enterprises, the Committee made the following recommendations [see 329th Report, para. 479(a), (c), (d) and (f)]:
   • (a) The Committee regrets that the inquiry initiated by the authorities into serious allegations of violations of trade union rights submitted by the complainant organization SINTRAVI has not yet been completed and urges the Government: (1) to take measures to ensure that the inquiry is completed as soon as possible, that it covers all the allegations and to send its results; (2) if it is found that the five dismissed workers were covered by trade union immunity and that there was not just cause to dismiss them, to take measures to ensure the aggrieved workers are reinstated in their jobs, with no loss of pay and benefits; and (3) to keep it informed about the ruling handed down by the arbitration tribunal in relation to the collective bargaining process between SINTRAVI and AVINCO S.A.
   • (c) With respect to the allegation concerning the dismissal of 13 workers from the Department of Antioquia affiliated to SINTRADEPARTAMENTO together with a further 35 workers (who were later reinstated) following a work stoppage, the Committee requests the Government to notify it of the specific grounds for the dismissal of these 13 workers and to send a copy of the corresponding legal decision.
   • (d) Regarding the dismissal of Mr. Héctor Gómez from the enterprise Cementos del Nare S.A., so as to be able to give its views with all the information before it, the Committee requests the Government: (1) to send it the text of the legal decision setting aside the ruling of the dismissals committee ordering his reinstatement; (2) to inform it whether Mr. Gómez has initiated judicial administrative proceedings; and (3) to inform it whether he has been paid the corresponding compensation for dismissal plus an additional 12 per cent, which the Government indicated he would be entitled to under the provisions of the prevailing collective agreement.
   • (f) The Committee requests the Government to communicate its observations on the allegations submitted by the Single Confederation of Workers of Colombia (CUT), Antioquia executive board, and the Union of “Official” Workers and Public Employees of the General Hospital of Medellín (SINTRA Hospital General de Medellín).

B. The Government’s reply

1. 271. In its communications of 27 December 2002 and 2 January 2003 the Government indicates that, with respect to subparagraph (a)(1), it replied on 3 June and 21 September 2001. Below is a summary of the reply, as it appears in the previous examination of the case [see 329th Report, paras. 457 and 458].
   • The Government states that the Ministry of Labour and Social Security, through the Territorial Directorate of Antioquia, initiated an administrative labour inquiry against the enterprise AVINCO S.A. in respect of the points contained in the complaint submitted to the ILO by SINTRAVI. The Government states that two conciliation hearings were scheduled. At the first, the enterprise AVINCO S.A. requested a copy of the complaint submitted to the ILO to enable it to respond. The legal representative of the enterprise AVINCO S.A. said that a trade union had been set up within the enterprise, and that in accordance with labour legislation, deductions for trade union dues had been made and also that trade union leave was granted. With respect to collective bargaining, the enterprise representative indicated that the meetings corresponding to the direct settlement stage had been held and that no agreement had been reached, resulting in the request to convene an arbitration tribunal in accordance with the provisions of Decree No. 801 of 1998 and Act No. 584 of 2000, which is the recognized channel for the settling of disputes directly between parties. The representative also stressed that with respect to the other rights to which the trade union considers it is entitled, and which have allegedly been violated, the decisions handed down by the administrative and judicial bodies have been adhered to.
2. 272. With respect to subparagraph (a)(2), the Government states that an administrative labour investigation has begun at the Territorial Directorate of Cundinamarca.
3. 273. Concerning No. 3, the Government indicates that the arbitration tribunal convened to resolve the dispute between the trade union organization SINTRAVI and the enterprise AVINCO S.A. handed down the respective arbitral award.
4. 274. As regards subparagraph (c) of the recommendations, the Government refers to its reply of 7 February 2001 (in the Committee’s conclusions a summary is given of the Government’s previous observation).
5. 275. With regard to subparagraph (d), the Government also refers to its reply dated 7 February 2001 (in the conclusions, a summary is given of the Government’s observation).
6. 276. Concerning subparagraph (f), the Government refers to a reply dated 4 October 2002 (however, this reply bears no relation to the allegations mentioned in subparagraph (f)).

C. The Committee’s conclusions

1. 277. With regard to the serious allegations of violations of trade union rights at the enterprise AVINCO S.A. submitted by the organization SINTRAVI (the dismissal of five workers covered by trade union immunity after they had formed a trade union organization at the company AVINCO S.A.; pressure put on workers to conclude an agreement bypassing the trade union and the subsequent withdrawal of non-statutory benefits from unionized workers; pressure on workers to make them leave the union; and intransigence by the company in refusing to negotiate a list of demands [see 329th Report, para. 466]), the Committee regrets to observe that despite the time that has elapsed the Government does no more than refer to observations it made in conjunction with previous examinations of the case, which are very limited or bear no relation whatsoever to its previous recommendations. It has not sent any information on the investigation initiated or on its result as regards the dismissal of the five affiliated workers; it only repeats that an administrative investigation has begun and that with regard to the process of collective bargaining between the trade union organization SINTRAVI and the enterprise AVINCO S.A., the arbitration tribunal handed down an arbitral award, but it does not communicate its content. The Committee recalls that “no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 696]. The Committee also stresses that “justice delayed is justice denied” [see Digest, op. cit., para. 56]. In these conditions, the Committee once again strongly urges the Government to take measures to ensure that the inquiry is completed as soon as possible, that it covers all the allegations, and that its results as well as the text of the arbitral award relating to the collective bargaining process are transmitted to the Committee. With regard to the five dismissed workers, the Committee requests the Government, if it is found that they were covered by trade union immunity and that there was no just cause to dismiss them, to take measures to ensure they are reinstated in their jobs, without loss of pay or benefits.
2. 278. Concerning the dismissal of 13 workers from the Department of Antioquia affiliated to the complainant organization SINTRADEPARTAMENTO, the Committee notes that when referring in earlier observations to dismissals in the Department of Antioquia following a work stoppage declared illegal by the administrative authority, the Government stated that of the 48 workers who had been dismissed initially, 35 workers were reinstated by judicial order and the other 13 did not submit judicial appeals. The Committee regrets that the Government has not responded to its request for information on the specific grounds on which the enterprise based the dismissal of these 13 workers. The Committee once again requests the Government to conduct an investigation into this matter and, if it is found that the 13 workers in question were dismissed for the same reasons as the other 35 workers who were reinstated by judicial order, to take measures to promote their reinstatement and if this proves to be impossible due to the time that has elapsed, to compensate them fully.
3. 279. Regarding the allegations relating to the dismissal of Mr. Héctor Gómez from the enterprise Cementos del Nare S.A., the Committee recalls that in its previous examination of the case, it had noted the Government’s information that: (1) to dismiss Mr. Gómez, the enterprise had invoked the provisions of the in-house regulations and the individual contract which do not permit active or passive participation in acts of protest or meetings carried out at the workplace or in any of the enterprise’s facilities either during or outside working hours; (2) in accordance with the collective agreement, the trade union had requested the convening of a committee responsible for deciding whether or not the dismissal had been for just cause; (3) the committee in question had decided to reinstate the worker on 24 August 1995; (4) clause 13(5) of the collective agreement provides that the decisions of the Committee, with the exception of the authority given to the enterprise to insist on the dismissal – in which case it must pay the worker the compensation due plus an additional 12 per cent – cannot be appealed against and are obligatory for the parties; the latter expressly decided to submit this type of difference to arbitration as provided in the clause in question and consequently renounced using legal channels; (5) the enterprise nevertheless applied to the High Court of Medellín in order to homologate the ruling of the dismissals committee and that court decided to set aside the ruling and declared that the dismissal of Mr. Héctor Gómez had been for just cause; (6) consequently, the complainant organization submitted a claim against the enterprise to the Ministry of Labour and Social Security, Antioquia Regional Directorate, for the violation of clause 13 of the collective agreement and, by way of resolutions dated 18 March and 5 June 1996, the administrative authority sanctioned the enterprise; and (7) the enterprise lodged an appeal against these resolutions and the regional director of Labour and Social Security of Antioquia decided to revoke them on the basis of the ruling handed down by the High Court of Medellín, with the possibility remaining that Mr. Gómez could initiate judicial administrative proceedings.
4. 280. The Committee regrets that the Government only refers to earlier replies. This being the situation, it once again requests the Government to send the texts of the final judicial and administrative decisions without delay and to indicate whether Mr. Gómez has been paid the corresponding compensation for dismissal plus an additional 12 per cent, which the Government indicated he would be entitled to under the provisions of the prevailing collective agreement. The Committee requests the Government to send the text of the collective agreement.
5. 281. As regards the allegations submitted by the Single Confederation of Workers of Colombia (CUT), Antioquia executive board, and the Union of “Official” Workers and Public Employees of the General Hospital of Medellín concerning the hospital’s refusal to initiate collective bargaining, the Committee observes that the Government refers to an observation dated 4 October 2002 which bears no relation whatsoever to the allegations. In view of the time that has elapsed, the Committee requests the Government to promote collective bargaining at the General Hospital of Medellín without delay and to keep it informed in this respect.