Informe provisional - Informe núm. 334, Junio 2004

1. 381. The National Union of Workers in the Weaving, Textiles and Clothing Industry (SINALTRADIHITEXCO) presented its complaint in a communication dated 21 November 2002 and the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) in a communication dated 25 April 2003. Both organizations sent further information in communications dated 15 January and 5 August 2003, respectively. Finally, the World Federation of Trade Unions (WFTU), Regional Office, Americas, sent new allegations in communications dated 14 May and 30 June 2003.
2. 382. The Government sent its observations in communications dated 16 July, 13 August, 24 September 2003 and 30 January 2004.
3. 383. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 384. In its communications of 21 November 2002 and 15 January 2003, the National Union of Workers in the Weaving, Textiles and Clothing Industry (SINALTRADIHITEXCO) indicates that on 3 August 1998, after a strike that had begun on 17 July 1998 at the Tejidos El Cóndor S.A. company, Tejicondor signed a collective agreement that was valid until 31 July 2000. However, between 22 January and 20 June 1999, the company dismissed more than 100 workers belonging to the trade union, among whom were three trade union officials. The complainant organization adds that the company replaced the dismissed workers with workers from the COOTEXCON and Gente Activa cooperatives, the workers of which do not have the right to freedom of association nor to collective bargaining. The complainant organization lodged an action for protection of constitutional rights (tutela), the outcome of which was the reinstatement of the workers in March 2001. However, in August 2001, the Constitutional Court reversed the previous decisions as it considered that the dismissals and the subsequent hiring of cooperatives was solely motivated by an attempt to reduce costs. Finally, the complainant organization indicates that some of the workers who were dismissed were employed again to work in the enterprise through the cooperatives, but that these workers were not able to join the trade union nor were they able to bargain collectively.
2. 385. In its communications of 25 April and 5 August 2003, the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) alleges that Carlos Mario Cadavid, a member of the trade union, was dismissed from the Cristalería Peldar company because of his participation in a trade union course, and José Angel López, a trade union official, had his employment contract suspended after expressing his opposition, as a trade union official, to the organization of a training day outside working hours, by withholding the attendance list of workers.
3. 386. In its communications of 14 May and 30 June 2003, the World Federation of Trade Unions (WFTU) alleges that the GM Colmotores company signed a collective agreement with each of the workers who did not belong to the National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-metals and Related Industries (SINTRAIME). This collective agreement could be signed by all workers who wished to do so but it automatically implied that they resign from the trade union. The WFTU indicates that the signing of the agreement took place in spite of the fact that the collective agreement signed with SINTRAIME was valid, an agreement in which it was laid down that this was extended to all workers. In order to proceed with the signing of the collective agreement, the company invited all those workers who did not belong to the trade union to a training day during which, according to the complainant organization, the workers were forced to sign the collective agreement under threat of their employment contracts not being renewed. Although the labour inspector went to the company to attend this day at the request of the trade union organization, she was not allowed to enter. This agreement was subsequently signed by 75 per cent of the company’s employees, which implied the automatic resignation from the trade union of those workers who belonged to it.

B. The Government’s reply

1. 387. In its communications of 16 July and 13 August 2003, the Government indicates that, with regard to the allegations presented by the National Union of Workers in the Weaving, Textiles and Clothing Industry (SINALTRADIHITEXCO) relating to the dismissal of more than 100 workers at the Tejidos El Cóndor S.A. company and the hiring of new employees through the COOTEXCON and Gente Activa cooperatives, the essential point of the complaint lies in the right of the company freely to employ its staff. According to the Government, there is no violation of Conventions Nos. 87 and 98 when services are contracted through cooperatives. Article 333 of the Political Constitution of Colombia provides for economic freedom, which should be understood as the power of people to carry out activities of an economic nature in order to maintain or to increase their resources, provided that the principles of reasonability and impartiality are maintained in order to ensure the harmonization of the various rights. In exercising the abovementioned rights, enterprises may suspend shifts, bring forward holiday periods, contract with cooperatives for collaborative work, merge with other enterprises, as is the case of the Tejidos El Cóndor S.A. company, Tejicondor. The Government adds that cooperatives working collaboratively deserve the same legal and constitutional protection as workers in employment relationships, all the more so when they practise the principle of solidarity (unlike employment contracts) as their members are also their owners and their wage system is as legitimate as those laid down in the Substantive Labour Code for workers in employment relationships. With regard to the right to strike, the right to collective bargaining and the right to freedom of association, the Government confirms that it has complied with the abovementioned Conventions.
2. 388. The Government adds that the Constitutional Court considered that the company did not in fact carry out the dismissal of more than 100 workers inasmuch as these workers had fixed-term contracts and those contracts were not renewed, without there being any intention to reduce the number of active members of the trade union organization, to bring pressure to bear on the workers to resign from the trade union or to carry out retribution for the workers’ participation in a strike. The Government adds that all the ordinary labour proceedings begun by the majority of the 103 workers were decided in favour of the company.
3. 389. The Ministry of Labour and Social Security, through the Territorial Directorate of Antioquia issued resolution No. 02816 of 18 November 2002, in which it abstained from taking administrative measures against Tejicondor because it believed that anti-union harassment did not take place as it was not proven how many trade union members were dismissed and the hiring of staff through cooperatives is not, in itself, a sign of anti?union discrimination. The complainant organization lodged motions for appeal and reversal of decision that were decided in resolutions Nos. 00144 of 27 January 2003 and 01326 of 13 June 2003, which confirmed the administrative decision of November 2002.
4. 390. In its communication of 30 January 2004, the Government indicates that, with regard to the allegations presented by the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) referring to the dismissal of Carlos Mario Cadavid and the suspension of José Angel López at the Cristalería Peldar company, the employer is legally empowered, in accordance with articles 111, 112, 114, 115 and 413 of the Substantive Labour Code, to impose disciplinary measures on, and to dismiss, its workers without just cause provided that they are paid the relevant compensation. The employer has the right to dismiss workers who do not fulfil the general duties and specific obligations and prohibitions that are laid down in law, in national labour regulations and in the respective employment contract, agreement or collective agreement. Finally, the Government indicates that neither of the workers involved has made use of the legal options available to him.

C. The Committee’s conclusions

1. 391. With regard to the dismissal, between January and June 1999, of more than 100 workers at the Tejidos El Cóndor S.A. company who were members of the National Union of Workers in the Weaving, Textiles and Clothing Industry (SINALTRADIHITEXCO), and the subsequent hiring, through cooperatives for collaborative work, of workers who do not have the right to freedom of association or collective bargaining, the Committee notes the Government’s statement that the company has the freedom to employ its own staff and that the hiring out of services through cooperatives cannot be considered a violation of Conventions Nos. 87 and 98, which, according to the Government, have always been respected. The Committee also notes the Government’s statement that the Constitutional Court repealed the reinstatement orders issued as a result of the appeals lodged for protection of constitutional rights; the Constitutional Court considered that the measures were not for the purpose of anti-union discrimination but that once the fixed-term contracts expired they were not renewed as a way of reducing costs. The content of this decision coincided, according to the Government, with that of resolution No. 02816 of 18 November 2002 issued by the Territorial Directorate of Antioquia.
2. 392. The Committee notes that there is not sufficient information to allow it to reach its conclusions in full knowledge of the facts. In these circumstances, the Committee requests the Government to: (1) send a copy of the decision of the Constitutional Court; (2) inform it whether the workers of cooperatives in general, and in the specific case of COOTEXCON and Gente Activa can establish their own organizations in order to defend their interests or join a branch trade union; and (3) send a copy of the statutes of the two cooperatives, COOTEXCON and Gente Activa, as well as a copy of all the legislative provisions on cooperatives.
3. 393. With regard to the allegations presented by the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) relating to the dismissal of Carlos Mario Cadavid because of his participation in a trade union course and the suspension of the employment contract of trade union official José Angel López for refusing to hand over the attendance list of workers called to participate in training on a non-working day, the Committee notes that, according to the Government, the workers affected did not make use of the legal options available to them and that, moreover, the employer is legally empowered to impose disciplinary measures and to dismiss workers without just cause provided that they are paid the relevant compensation.
4. 394. The Committee recalls that exhausting national legal options is not a prerequisite for the presentation of a complaint to be accepted. Moreover, the Committee recalls that, although employers are empowered to impose disciplinary measures, "no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 696]. In this respect, the Committee requests the Government to take steps to ensure that an independent investigation is carried out to determine whether the dismissal of Mr. Cadavid and the suspension of Mr. López were the result of their trade union activities and, if this is the case, that it take steps to ensure that Mr. Cadavid is reinstated without delay with payment of the wages and benefits owing to him and that the suspension of Mr. López is revoked and that he receives any unpaid wages and benefits that are owing to him. The Committee requests the Government to take the necessary measures to adapt the legislation and the legal procedures into conformity with Conventions Nos. 87 and 98. The Committee requests the Government to keep it informed in this respect.
5. 395. The Committee regrets that the Government has not sent its observations with regard to the serious allegations presented by the World Federation of Trade Unions relating to the forced signing of a collective agreement with workers at the GM Colmotores company, including members and non-members of the trade union, which implied the automatic resignation from the trade union of a high percentage of workers belonging to the National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-metals and Related Industries (SINTRAIME). The Committee requests the Government to send its observations without delay.