Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 354, Junio 2009

1. 629. The present complaint is contained in a communication dated 25 September 2008.
2. 630. The Government sent its observations in communications dated 10 February and 12 May 2009.
3. 631. 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 complainant’s allegations

1. 632. In its communication of 25 September 2008, the National Union of Food Workers (SINALTRAINAL) makes the following allegation.
   • Violation of the right of personal freedom
2. 633. In its communication of 25 September 2008, the National Union of Food Workers (SINALTRAINAL) makes the following allegation. On 15 September 2008, over 19,000 workers subcontracted through associated labour cooperatives in the sugar sector in the departments of Valle del Cauca, Risaralda and Cauca called a strike in the Pichichi, Providencia, Manuelita, Central Tumaco, Mayagüez, Central Castilla, María Luisa, La Cabaña and Cauca sugar refineries. The main reason for the strike was the refusal by employers in the sugar sector, represented by ASOCAÑA, to negotiate the list of claims submitted on 14 July 2008 by SINALTRAINAL, SINALCORTEROS and the Single Confederation of Workers of Colombia (CUT), calling for direct contracts with workers, the right to work, the correct weighing and the right price for cane that has been cut, an increase in wages, measures for the over 300 workers suffering disability due to the inhumane working conditions, and the right to health, education and housing.
3. 634. According to the union, before the work stoppage, an attempt was made to reach agreement, but the employers refused, as also happened in the public hearing held in the town of Pradera (Valle del Cauca) by the Sixth Commission of the Senate. Nor was there a response to the claims of the cane cutters in the meetings with ASOCAÑA, when the action was announced to the media, nor through the intervention by parliamentarians of the Alternative Democratic Pole and the debates in the Congress of the Republic. On 5 September 2008, 5,000 workers went to meet President Alvaro Uribe Vélez on his arrival in the city of Cali to enter into dialogue, but he refused to receive them, in disregard of the serious situation affecting the families of sugar cane cutters.
4. 635. The union alleges that the Colombian Government’s response to the strike by sugar workers has been to treat it as a public order issue rather than a labour dispute, with the violent repression of the rights of workers and unions, and the refusal to sit and negotiate the list of claims. The refusal has been accompanied by aggression, as illustrated by the following incidents:
   • - the army and the police forces remain inside and outside the sugar refineries, intimidating the workers with the presence of snipers from the official forces in the labour dispute;
   • - employers are preventing work by various members of cooperatives;
   • - several workers have been subjected to death threats (Efraín Muñoz Yánez, Daniel Aguirre and Luis Aguilar);
   • - the owners of the refineries are engaged in disinformation campaigns in the press to create divisions among the workers;
   • - unknown persons constantly follow, take photographs of, and film workers;
   • - at approximately 12.40 a.m. on 24 September, in the Providencia refinery, unknown hooded persons infiltrated the cane crops and were removed by the workers;
   • - on 23 September 2008, delegates of the Ombudsperson and the Office of the Attorney-General went to strike locations, including the Providencia refinery, calling for children and pregnant women to withdraw;
   • - the Minister of Social Protection met the employers and the authorities on 23 September, justifying and organizing the use of the public forces to dislodge the workers engaged in the stoppage, expressing in public the argument that, in light of democratic security, employers have the right to extract ethanol and the workers have the right to work. The Minister described the dispute as an illegal movement promoted by “dark and subversive forces”, in allusion to the presence of unions affiliated to the CUT, parliamentarians and social organizations. The owners of the refineries tried to justify their action by claiming that personnel were being abducted in the refineries, calling upon the authorities to back up this false claim, which, of course, the latter denied;
   • - they made the false charge, in public, that workers engaged in the stoppage had threatened to set fire to the union headquarters of SINTRAPICHICHI if its members do not stop work;
   • - employers are forcing workers to mobilize against the strike, as occurred with the march on the city of Cali on 24 September, obliging them to sign letters calling on the authorities to allow them to return to work;
   • - pressure is being exerted on subcontracted workers engaged in the stoppage by the leaders of SINTRACAÑAVALC, SINTRARIOPAILA Castilla SA, SINTRAPICHICHI CTC, FEGTRAVALLE CGT, SINTRAINCAUCA, SINTRAINDULCE Mayagüez and SINTRAPROVIDENCIA, who are publicly accusing SINALTRAINAL and the leaders of the CUT of being instigators, as occurred on the radio programme of the W, on which the President of SINTRAPICHICHI made these bold claims on 25 September 2008, as well as in the letter dated 23 September 2008, addressed to the Minister of Social Protection;
   • - the employers have also imposed a clearly discriminatory labour system on workers who are subcontracted through associated labour cooperatives, thereby violating the right to equality set out in the National Constitution and in international labour standards;
   • - the forces of order, in abuse of their authority, have violently and repeatedly repressed workers engaged in the stoppage, making use of tear gas grenades, rubber bullets and tanks equipped with 105 mm canons. These acts occurred in the Providencia and Incauca refineries on 15 September 2008, causing serious injuries: Willintong Obregón (fracture of the right arm and injury to the lower lip); Faustino Cuero (injuries to the scalp and bruising of various parts of the body); Bonifacio Sinisterra (impact of a blunt weapon on the left eye); and 30 workers with bruising on various parts of the body;
   • - the possessions of certain workers (bags, clothing, work tools and identity documents) were damaged in the Providencia refinery on 15 September 2008;
   • - the workers in the Central Tumaco refinery were besieged without food on 15, 16 and 17 September 2008;
   • - on 17 September, at approximately 11.45 p.m., certain Atlas security personnel broke the security bars of the Providencia refinery and entered the plant;
   • - since 23 September 2008, in the refineries the workers are being scared by announcements that the army and the police will use force to dislodge them;
   • - on 24 September 2008, in the Central Castilla refinery, at approximately 11.50 a.m., a police captain and two SIJIN officers in civilian clothes requested the names of the SINALTRAINAL leaders José Onofre Esquivel, Jairo Paz and Alberto Ayala, required them to show their identity cards and attempted to attack their tents using their official vehicles;
   • - on 25 September 2008 in the Central Tumaco and Providencia refineries, among others, the police once again repressed the workers engaged in the stoppage and removed them from where they were, taking control of the entrance to the refineries. On the same day, in the early hours, the army and the police attacked the workers, leaving two injured, Franklin Murillo and Rubén Dario Cordoba, and blocked the thoroughfare; and
   • - thirteen workers from the Mayagüez refinery were dismissed after participating in a meeting held in the town of Palmira and were informed orally that their dismissal was a reprisal for participation in meetings and events organized by the workers’ movement.

B. The Government’s reply

1. 636. In its communications of 10 February and 12 May 2009, the Government considers that the union has not provided evidence in support of its accusations, which give sufficient grounds to consider the complaint inadmissible.
2. 637. First, with regard to the allegations relating to human rights, the Government calls for them to be transferred to Case No. 1787.
3. 638. According to the Government, in the present case SINALTRAINAL confines itself to making a series of statements without providing the necessary evidence so that the Committee has sufficient information available to be able to examine the substance of the matter and, before making any recommendations, calls on the Committee to request the complainant to provide the corresponding evidence, without which it should refrain from examining the case.
4. 639. The Government indicates that the alleged acts of harassment have not been reported to the competent authorities. In this regard, the Government emphasizes that the State of Colombia has supervisory mechanisms, the principal function of which is to monitor the official conduct of those in public functions through appropriate investigations and the imposition of the respective penalties in accordance with the law of the land. Nevertheless, the Government does not consider that there is any harassment when the authorities ask citizens their names and for their identity documents, particularly when the authority making the request is fully identified.
5. 640. With regard to the conduct of the forces of order in relation to an armed stoppage, the Government considers that the action that they took was in accordance with the indications of the Committee, under the terms of which, “violence resulting from inter-union rivalry might constitute an attempt to impede the free exercise of trade union rights. If this were the case and if the acts in question were sufficiently serious, it appears that the intervention of the authorities, in particular the police, would be called for in order to provide adequate protection of those rights. The question of infringement of trade union rights by the government would only arise to the extent that it may have acted improperly with regard to the alleged violence” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 1125].
6. 641. The Government indicates that in the present case the enterprise-level unions reported at the appropriate time the acts of intimidation, threats and aggression against them for not joining the blockade. The purpose of the police interventions was to ensure the safety of persons who were not participating in the blockade, including trade union members and leaders from enterprise-level unions and employees of the refineries. The reaction to the police action was the attack by those responsible for the blockade, which resulted in certain persons suffering injuries, including members of the forces of order. The Government asserts that it was an “armed stoppage” and that the authorities maintained a clearly pacific attitude, despite the fact that the participants were armed.
7. 642. The Government emphasizes that the stoppage was carried out by cane cutters, who had their machetes (tools specially designed for cane cutting), which they generally use in their work. They had them with them during the blockade, when it could not be said, in view of the circumstances, that they were required for their work, particularly since they were blockading the work: they showed them in a threatening manner, which leads to the conclusion that it was not a legitimate trade union activity as it automatically became an armed stoppage.
8. 643. It is the Government’s view that had SINALTRAINAL ordered the cane cutters not to carry their work tools (machetes) during the stoppage, they would have obeyed such an order. There is no evidence that such an order was issued. According to the information provided by the refineries, several workers who had to go into the enterprise, as they live in housing supplied by the company, were seized by cane cutters bearing these arms. The Committee has outlined various principles in this respect which show that such action is not protected by ILO instruments: “The Committee has considered legitimate a legal provision that prohibited pickets from disturbing public order and threatening workers who continued work” [see Digest, op. cit., 2006, para. 650]. The legitimacy of such action lies in the fact that threats of this type are in violation of ILO Conventions on freedom of association, the right to organize and collective bargaining.
9. 644. With regard to the allegation that “employers in the sugar industry, represented by ASOCAÑA”, refused “to negotiate the list of claims submitted ... by SINALTRAINAL, SINALCORTEROS and the Single Confederation of Workers of Colombia (CUT)”, the Government observes that, according to the communications sent by the sugar refineries, in no event, in their capacity as affiliates, have they entrusted ASOCAÑA with the function of engaging in collective bargaining on their behalf, as they reserve that function for themselves as enterprises. In practice, negotiations are at present being held between one of the refineries and the union. The Government attaches copies of a number of collective agreements that are in force between sugar refineries and unions.
10. 645. The Government adds that ASOCAÑA is a private non-profit-making association established on 12 February 1959. Its function is to promote, maintain and improve the conditions required by private enterprises in the sugar sector, develop plans for their improvement and development, and promote the spirit of solidarity, union and concord between affiliates and enterprises in the sector. Legally and according to its statutes the structure of ASOCAÑA corresponds to that of a civil non-profit-making association gathering together persons, associations and sugar enterprises with a view to promoting the development and improvement of conditions in the sugar sector, but without legal representation in the activities and business of individual members. ASOCAÑA does not intervene or interfere in commercial activities or labour relations, or in any of the business activities of any of its members. Nor does it have or has it ever had throughout its history the capacity to represent its members in any type of collective bargaining under the terms of the legislation that is in force. Accordingly, the role of ASOCAÑA in the sugar sector consists of examining prospective scenarios, designing policies and planning strategies for the economic development of enterprises in the sugar sector. For this reason, ASOCAÑA has no capacity or competence to negotiate agreements, intervene in or deal with civil, commercial, labour or administrative matters on behalf of its members, nor does it exercise authority over member enterprises or individuals, or is empowered to enter into commitments on behalf of its members in such matters. A reading of its statutes shows that at no time have its members granted it the capacity to represent them in the negotiation of lists of claims presented by workers’ organizations, of whatever type or level. ASOCAÑA has no capacity to enter into commitments on behalf of its members in labour, administrative or contractual matters, etc. This was the wish of the association’s member refineries, as they indicate in the comments that they have provided to the ILO in relation to the present complaint.
11. 646. The Government notes that, according to ASOCAÑA, at the present time there is no administrative labour investigation into any refinery concerning alleged violations of the right to organize or freedom of association, according to information provided by the labour inspector of Palmira, Valle.
12. 647. The Government adds that the acts alleged by SINALTRAINAL in relation to the refusal to bargain are unfounded as there are unions in all the sugar refineries, and collective labour agreements are in force with all of them. Relations with unions and union leaders are optimal in all cases. In its communication dated 12 May 2009, the Government indicated that in the case of each of the refineries affected by the blockage, the parties reached a satisfactory agreement and the points giving rise to the conflict were resolved. The Government communicated a copy of one of the agreements and added that, currently, relations are regularized between the refineries and the cooperative of sugar cane cutters.
13. 648. With regard to the refusal of the President of the Republic to enter into dialogue with the cane cutters, the allegation is vague, as the union does not provide even the slightest proof. The complainants disregard the constant willingness of the national Government to engage in dialogue, as expressed on the various occasions that the Minister of Social Protection held meetings to seek solutions to the blockade. However, it is for the complainants to specify the allegations and to provide supporting evidence.
14. 649. In relation to the allegations that the Minister of Social Protection held meetings in the city of Cali on 23 September with employers in the sugar sector and the forces of order with a view to dislodging the striking workers, the Government indicates that the cane cutters were never dislodged by the forces of order.
15. 650. The Government denies the allegations that the Minister described the dispute as “an illegal act” and recalls that it is for the courts, and not the Government, to declare strikes illegal. The respective law has already entered into force and it is not therefore the role of the Minister to declare a strike unlawful, which is the responsibility of the courts. The Government adds that neither the Government nor the employers in the sugar sector have sought such a ruling from the courts.
16. 651. With regard to the allegations that the Minister described the dispute as a movement promoted by “dark and subversive forces”, as a means of indicating, or as claimed in the complaint, “in allusion to the presence of unions affiliated to the Single Confederation of Workers of Colombia (CUT), parliamentarians and social organizations”, the Government says that the Minister at no time described or intimated that the CUT was a dark or subversive force. What the Minister called on the authorities to do was to investigate whether in practice subversive elements were involved in the organization of the stoppage. This statement and request are not in any way in violation of the content and principles derived from ILO Conventions Nos 87 and 98. Nor did they result in any act against workers, parliamentarians, social organizations or members and leaders of the CUT that were in any way related to the blockade.
17. 652. The Government maintains that the blockade was a case of direct action. It was a total violation of international standards relating to work stoppages and peaceful protest action by workers. The unions and workers’ federations denounced the violation of human rights, labour rights, education, health and housing. The cane cutters who participated in the blockade prevented thousands of workers who lived and depended on the refineries from having access to their work, for which purpose they did not hesitate to threaten them and intimidate them with their machetes.
18. 653. These acts and certain threats to trade union leaders were refuted and reported to the Office of the Ombudsperson, the Office of Public Prosecutor and the Representative Office of the International labour Organization in Bogotá. The Government attaches the relevant documents as evidence for the ILO Committee on Freedom of Association, in particular in its communication of 12 May 2008 in which the Government refers to legal rulings against six cane cutters.
19. 654. With regard to the threats and alleged acts of violence against the leaders of the blockade, ASOCAÑA sought information from the Local Directorate of Public Prosecutors of Valle del Cauca and found 19 penal denunciations, all brought by refineries, workers in refineries, union leaders and contracted workers, denouncing the blockade and the unlawful coercion to which workers are subjected, as well as threats against the unions in the refineries and other acts in violation of the Penal Code of Colombia. None of the acts or situations reported in SINALTRAINAL’s complaint were found.
    • (Table not reproduced)
20. 655. With reference to the information provided in SINALTRAINAL’s complaint concerning the abuse of force by the police and the army, the Government describes the situation reported by the national police on the premises of the Central Tumaco SA and Providencia SA refineries. The police indicate that on 25 September 2008 they entered these two sugar refineries to investigate intelligence information concerning the presence of explosives in the area. When the police arrived they approached the persons blocking the access to the refineries and requested them to withdraw so that they could undertake an inspection. The demonstrators became furious and attacked the police with explosives, incendiary devices and stones, which gave rise to a confrontation. Three police officers and five cane cutters were injured as a result. The Office of the Public Prosecutor launched an investigation into the violations of the law that had occurred in the context of this situation.
21. 656. Moreover, the report of the Office of the Ombudsperson (attached by the Government) makes it totally clear that the presence of the forces of order in the blockaded refineries was completely peaceful, with a view to safeguarding rights and ensuring that no action was taken in breach of the peace, property and human rights. There is no report by the above Office referring to a hostile attitude or aggression by the representatives of the forces of order on the sites of the blockade.
22. 657. The Government indicates that the recent blockade (stoppage) and the present complaint can be explained by an inter-union dispute. There are first-level or enterprise-level unions in the refineries. The blockade or stoppage that occurred was organized by SINALTRAINAL, a branch-level union affiliated to the CUT. The Government refers to ASOCAÑA’s comments, according to which SINALTRAINAL considers that enterprise-level unions should be replaced by industry-level unions. This was the purpose behind the submission of the list of claims, in which the above enterprise-level unions played no role, and offers sufficient proof of the rivalry.
23. 658. The Government adds that the Office of the Ombudsperson and the enterprise-level unions of the various refineries have submitted reports on the matter.
24. 659. The reasons why a change in the trade union structure is being promoted further explain the conflict with certain enterprise-level unions, as is occurring in the present case with the refinery unions. The Government maintains that in practice a strategy is being proposed and developed for the replacement of enterprise-level unions by industry-level unions, as indicated in one of the SINALTRAINAL documents, on which the previous paragraphs are based. In this respect, the stoppage, or in practice “blockade”, in certain refineries was clearly undertaken for this purpose. It details, among other acts, the intimidation and threats against the leaders of enterprise-level unions, which were duly reported to the national authorities and the ILO representative in Colombia. The Government therefore believes that the situation does not involve a conflict between the Government and the unions, but is the result of a conflict within the trade union movement, and that the parties involved are solely responsible for resolving it.
25. 660. In the view of the Government, SINALTRAINAL’s description of the Valle del Cauca region as a poor and violent area with deplorable social conditions, in addition to being untrue, misrepresents the true situation of the people in the region. Sugar refineries have a long tradition in the development of the region and the country. They are not foreign companies, appearing out of nowhere or with obscure links to foreign persons or capital. It was at the end of the last century that the sugar industry was established in Valle del Cauca. The enterprises in the sector are reputed throughout the country for their serious and moral approach and the quality of life to which they have given rise in one of the most prosperous departments of the country, largely due to the sugar industry, which accounts for 11 per cent of the GDP of Colombia.
26. 661. With regard to the alleged use of associated labour cooperatives in sugar refineries by the Government and employers in the sector to make work more precarious, the Government describes the efforts made to prevent this from happening and to ensure that this lawful form of relationship with the staff is effective in generating development and investment. A series of measures were adopted for this purpose in Act No. 1233 of 2008, including the obligation for the cooperatives to pay parafiscal contributions. The objective of the Act is to extend social protection to the members of the cooperatives, and to ensure that they benefit from family allowance funds and the SENA.
27. 662. Two minimum and inalienable rights have been established for the members of associated labour cooperatives:
    • - they are entitled to receive ordinary monthly compensation that may not in any event be lower than the applicable monthly minimum wage; and
    • - protection for young workers, taking into account permitted types of work and the minimum age for admission to work, and maternity protection (prohibition of dismissal, maternity leave and other social security health benefits).
28. 663. The Act provides that associated labour cooperatives shall be responsible for the process of registration and the payment of their members’ contributions to the overall social security system (health, pensions and occupational risks).
29. 664. The above Act prohibits the provision of employment services by associated labour cooperatives. Section 8 of the Act is particularly relevant, as it provides that ILO principles and provisions respecting decent work shall be applicable to associated labour cooperatives. The Government provides the Committee with details on the situation of associated labour cooperatives, in accordance with the information provided by the refineries. There are currently 102 associated labour cooperatives, which provide a source of autonomous and independent labour, and these entities, as employers, are responsible for social security procedures and contributions and in respect of social insurance bodies. In conformity with their social responsibility, the refineries ensure that the cooperatives with which they conclude contracts comply with the labour rights of their members.
30. 665. Since the adoption of Act No. 1151 of 2007, associated labour cooperatives have been able to be affiliated to family allowance funds and to obtain all the benefits that they provide, including family allowances. Nevertheless, in the sugar sector, even before the adoption of the Act, many associated labour cooperatives were affiliated and contributed to family allowance funds.
31. 666. This system of affiliation to family allowance funds continues and allows the cooperatives to conclude agreements and develop programmes for the provision of housing and training to their members.
32. 667. During the month of May 2008, under the coordination of the Ministry of Social Protection, ASOCAÑA hired an international auditor to undertake an audit of the associated labour cooperatives providing services in sugar cane harvesting. The contract was concluded with the international firm Deloitte & Touche, with its headquarters in New York, and which is present in 150 countries. Among other reasons, the audit was entrusted to this company taking into account the fact that its work is accepted and recognized for the submission of World Bank and Inter-American Development Bank projects. The Government attaches copies of the respective reports.
33. 668. According to the data compiled by the audit, which evaluated the operation and organization of the cooperatives during the course of 2007, they made full contributions to the social security system and were in compliance with all the labour-related obligations established by law during the audit period. The situation of the cooperatives in relation to labour and social rights may be summarized as follows:
    • - The audit found that all associated labour cooperatives are in compliance with the fundamental Conventions of the International Labour Organization (ILO) applicable to the work carried out by their members. The audit verified compliance with the Minimum Age Convention, 1973 (No. 138), the Worst Forms of Child Labour Convention, 1999 (No. 182), the Abolition of Forced Labour Convention, 1957 (No. 105), the Equal Remuneration Convention, 1951 (No. 100), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
    • - It also verified compliance with the Promotion of Cooperatives Recommendation, 2002 (No. 193), and particularly with the principles and guidelines that have to be adopted as fundamental cooperative values, such as: voluntary and open membership; democratic member control; member economic participation; autonomy and independence; education, training and information; cooperation among cooperatives; and concern for community.
    • - Comprehensive social security: all the associated labour cooperatives which provide services in sugar cane cutting are affiliated to the comprehensive social security system, paying contributions to health, pensions and occupational risks schemes. It was also found that contribution payments to the comprehensive social security system are made in a precise and timely manner (source: audit of associated labour cooperatives, Deloitte, 2008).
    • - Types of work and the working day. The working day for cane cutting begins between 6.30 and 7.00 a.m., and finishes between 3.30 and 4.00 p.m., with breaks of two hours to eat, rest and organize the work. On average, 7.8 hours are worked in a day. All cane cutters have access to transport, which picks them up near their homes and takes them back again when the working day has finished.

C. The Committee’s conclusions

1. 669. The Committee observes that in the present case the complainant organization, SINALTRAINAL, alleges that the public authorities violently repressed a work stoppage in sugar refineries which began on 15 September 2008 with the participation of 19,000 workers subcontracted through associated labour cooperatives. Certain workers were injured during this repression and their belongings were destroyed. According to the allegations, the work stoppage was undertaken because of the refusal of the sugar refineries and of ASOCAÑA, their association, to engage in collective bargaining with the union. The Committee notes that, according to SINALTRAINAL, the Government and the employers considered the collective dispute to be a political matter, rather than a labour dispute. It also alleges that the army and the police remained inside and outside the refineries, that snipers were placed in the plant, that the employers prevented certain members of the cooperatives from working and engaged in disinformation with a view to creating divisions among them, exerting pressure on certain workers to mobilize them against the strike; various workers were threatened and 13 workers in the Mayagüez refinery were dismissed after participating in the workers’ movement. Certain workers are accused of having committed acts of violence.
2. 670. In this respect, the Committee notes that the Government calls for issues relating to human rights to be transferred to Case No. 1787, which is under examination by the Committee.
3. 671. The Committee further notes that the Government rebuts the allegations that are made and indicates that the complainant organization has not provided evidence for them, with the result that there is not sufficient information available to examine them in depth. Moreover, according to the Government, there is no record of SINALTRAINAL denouncing the acts of violence that it alleges it suffered.
4. 672. With regard to the facts alleged by SINALTRAINAL, the Committee notes the Government’s indication that the work stoppage was armed, as the workers participated in it with their machetes (which are their work tools), despite the fact that they did not require them at that time for their work. The Committee notes that, according to the Government, the action taken by the forces of order was in response to the acts of violence by workers engaged in the stoppage who were blocking entry to the refineries; that the workers engaged in the stoppage were not dislodged at any time; that only one of the refineries was entered in response to a report concerning the presence of explosives, which gave rise to a violent reaction by the workers who were blocking the entrance, resulting in injuries to some of them and also to some police officers. The Committee notes the Government’s indication that the report of the Office of the Ombudsperson, who was present during these events, indicates the peaceful intervention of the forces of order and that the Office of the Public Prosecutor has launched an investigation.
5. 673. The Committee further notes that, according to the Government, certain workers and enterprise-level unions that were not in agreement with the stoppage were intimidated and threatened and that they were prevented from entering the workplace, and in some cases their homes, located within the refineries. The Committee notes that various workers and unions reported 19 offences by workers engaged in the stoppage to the Office of the Public Prosecutor and the Office of the Ombudsperson in relation to these events.
6. 674. The Committee notes that, according to the Government, neither the public authorities nor the employers called for the stoppage to be declared unlawful. The Committee notes that the Minister of Labour nevertheless requested an investigation to determine whether there were subversive elements among the workers engaged in the stoppage.
7. 675. The Committee finds that there is a contradiction on the substance of the case between the allegations of the complainant organization and the Government’s reply. On the one hand, the complainant organization refers to a stoppage that was repressed with violence by the forces of order, particularly on 25 September 2008, when they entered the premises of two refineries, resulting in injuries to several workers, that the plants were militarized and that the refineries incited workers to mobilize against the stoppage. On the other hand, the Government indicates that: (1) the stoppage was armed and consisted of a blockade of the refineries; (2) workers and unions that were not in agreement with the stoppage were intimidated and threatened and were prevented from entering the refineries; (3) the workers who participated in the stoppage reacted violently against the forces of order present on 25 September in response to a report concerning the presence of explosives in two refineries: (4) several workers and some police officers were injured as a result; and (5) the authorities called for an investigation to determine whether subversive elements were participating in the blockade.
8. 676. The Committee observes that, according to the reports of the inspectorate and of the Office of the Ombudsperson, a copy of which was attached by the Government, the workers blocked the entry to the refineries without letting through workers who were not participating in the stoppage. The Committee further notes that the Office of the Public Prosecutor has launched an investigation into the acts of violence that occurred and that, in this context, legal rulings were issued against six cane cutters (Cedano García, Bedoya Muñoz, Valencia Llanor, Ochoa, Bejarano Schess and Chacon Lennis) for aggravated violence against police officers, conspiracy to commit crimes and sabotage. Under these conditions, recalling that the sole fact of taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful, but that the case is different when picketing is accompanied by violence or coercion of non-strikers and that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest, op. cit., paras 651 and 667], the Committee requests the Government to keep it informed of pending legal proceedings on this matter.
9. 677. With regard to the allegations that the sugar refineries and ASOCAÑA, the association representing the refineries, refused to negotiate the list of claims submitted by SINALTRAINAL as the representative of subcontracted sugar cane cutters, which gave rise to the stoppage by subcontracted workers and its consequences, as examined above, the Committee notes first that the Government, refers to the information provided by the refineries and by ASOCAÑA, which indicates that the latter does not have the capacity to engage in collective bargaining, and that the refineries negotiate individually with the unions. The Government adds that collective agreements are in force in all the refineries.
10. 678. In relation to the refusal to negotiate with SINALTRAINAL, the Committee observes that, as indicated in the report on the situation in the sugar sector resulting from the stoppage by the cane cutters, prepared by the Office of the Ombudsperson, a copy of which was attached by the Government, the cane cutters are contracted through 102 associated labour cooperatives, which conclude commercial contracts with the refineries. According to the report, the management of the refineries do not accept work stoppages and indicate that the workers of the cooperatives are not their direct employees, but provide services to refineries through the cooperatives. The Committee notes that in its communication dated 12 May 2009, the Government indicates that in the case of each of the refineries affected by the blockage, the parties reached a satisfactory agreement and the points giving rise to the conflict were resolved. The Government communicated a copy of one of the agreements and added that, currently, relations are regularized between the refineries and the cooperatives of sugar cane cutters.
11. 679. In this respect, the Committee has considered that, mindful of the particular characteristics of the cooperative movement, associated labour cooperatives (whose members are their own bosses) cannot be considered, in law or in fact, as “workers’ organizations” within the meaning of Convention No. 87, that is organizations that have as their objective to promote and defend workers’ interests, and that workers associated in cooperatives should have the right to establish and join organizations of their own choosing, as the concept of worker includes not only salaried workers, but also independent or autonomous workers [see Digest, op. cit., para. 262]. The Committee considers that, as a logical consequence of this right to organize, the trade union organizations that workers of cooperatives join should be guaranteed the right to engage in collective bargaining on their behalf with a view to defending and promoting their interests. In these circumstances, the Committee requests the Government to ensure that SINALTRAINAL is able to bargain collectively at least on behalf of its members and asks the Government to keep it informed on this matter.