Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 362, Noviembre 2011

1. 446. The Committee last examined this case at its November 2010 meeting [see 358th Report, approved by the Governing Body at its 309th Session, paras 382–422].
2. 447. The Government sent its observations in a communication dated 27 March 2011.
3. 448. 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. Previous examination of the case

1. 449. In its previous examination of the case, the Committee made the following recommendations [see 358th Report, para. 422]:
   • (a) With regard to the acts of violence allegedly perpetrated on the company’s premises by anti-riot police, the Committee, while noting the different versions of events supplied by the complainant organization and the Government and, while deeply regretting that a number of workers sustained injuries, requests the Government to keep it informed of the outcome of the administrative inquiry and of the ruling handed down on the complaint lodged by the company in connection with the damage caused to its installations.
   • (b) With regard to the alleged disappearance of the president of the Santa Marta branch of SINTRAIME, José de Jesús Orozco, the Committee notes the Government’s statement that he returned to work as normal after the work stoppage and therefore did not disappear on 19 April 2009 as asserted by the complainant organization, but that it has nevertheless sought information on the alleged incidents from the competent authorities. The Committee requests the Government to keep it informed of the matter and to send it the relevant information when it becomes available. It also requests the Government to send its observations on the alleged arrest of several workers and to inform it whether they are presently at liberty and if any penal charges have been brought against them.
   • (c) With regard to the refusal to negotiate the list of demands, the Committee requests the Government to indicate whether the planned negotiations have begun and expects that they will enable an agreement to be reached that will put an end to the dispute. It requests the Government to keep it informed of any progress in this area.
   • (d) With regard to the banning of the work stoppage by the workers affiliated to SINTRAIME, the Committee requests the Government to keep it informed of the outcome of the appeal for protection lodged by the company against SINTRAIME for violating the freedom to work of non-strikers and to send it a copy of the relevant ruling.
   • (e) With regard to the anti-union dismissals alleged by FUNTRAENERGETICA (a committee of several union leaders), the Committee deeply regrets that the Government has not provided any information on the subject and requests it to do so without delay.

B. The Government’s reply

1. 450. In its communication dated 27 March 2011, the Government states with regard to the acts of violence allegedly committed on the premises of the enterprise by anti-riot police that, as repeatedly pointed out by the Government, the State rejects violence in any form, regardless of the perpetrator. Accordingly, it has launched a number of activities aimed at improving social dialogue and further strengthening the preventive inspection system, in order to create spaces for social dialogue between the actors involved in production and workers’ organizations in a collaborative environment. However, the Government reiterates that the national police has exceptional powers to use force to prevent disruption of the public order and to restore it; it will only use means authorized by law, opting for effectiveness while causing the least damage to personal integrity and property. Police officers are legally authorized to use physical force in the performance of their duties if they cannot enforce compliance with the law by other means such as dialogue, persuasion or warning. In the present case the police responded to the urgent need to restore public order, and it is important to recall that the work stoppage held by SINTRAIME was not peaceful, as there was serious damage to the installations of the enterprise.
2. 451. As regards the administrative investigation against SINTRAIME for violation of the freedom to work of non-striking workers, the Government states that the enterprise reiterates that the work stoppage led by the SINTRAIME trade union was not peaceful: damage was caused to rail installations, workshops and doors of the enterprise facility. In addition, it barred workers’ access to the facility and halted operations in the facility, to the detriment of the enterprise’s operations and of other persons relying on those operations to carry out their work, causing economic and operational losses. Acts of vandalism were also committed on the installations and machinery of the enterprise, forcing the enterprise to call the police to safeguard its property and staff.
3. 452. That situation prompted the enterprise to file an application for the strike to be declared illegal, as it considered the work stoppage to be an improper suspension of the activities of an enterprise. The Supreme Court of Justice declared the stoppage illegal in ruling No. 40428 of 3 June 2009.
4. 453. Given that the actions of the trade union constituted a violation of the prohibitions applicable to trade unions as laid down in the Substantive Labour Code, the enterprise submitted a request to the Ministry of Social Protection asking that the relevant penalties be applied, and that the union be fined for the violence and material damage caused to the enterprise. In addition, it filed administrative proceedings against SINTRAIME for the acts of violence committed during the strike, which, it alleged, jeopardized the state property managed by the enterprise. The proceedings are currently under way in the Ministry of Social Protection, under the responsibility of Inspector No. 16, and are pending a decision on a request for evidence submitted by the defendant trade union.
5. 454. As regards the allegations concerning the president of the Santa Marta branch of SINTRAIME (Mr José de Jesús Orozco), the Government states that, upon requesting information from the competent authorities, it was informed that proceedings have been brought against the union official by local public prosecutor’s office No. 28 of Bosconia for presumed damage to property involving the burning and destruction of a dump truck. The proceedings are now in the trial stage in the El Copey court of mixed jurisdiction.
6. 455. As regards the allegation that several workers had been arrested, the Government states that according to the information it has received, no worker is being held in custody for the events of 24 March 2009.
7. 456. As regards the refusal to negotiate the list of demands, the enterprise states that the process of collective bargaining with SINTRAIME started on 4 September 2009 in compliance with a judgment order handed down in tutela proceedings by the Supreme Court of Justice (ruling No. 24753 of 15 September 2009). Meetings were scheduled for 4, 5, 11, 12, 18, 19 and 23 November 2009, with four to ten hours of meetings per day, and paid leave was granted to the workers designated as bargaining representatives during the entire period of direct bargaining. The enterprise adds that it granted SINTRAIME 12.5 million pesos as bargaining costs and issued 21 airline tickets to enable union bargaining representatives and advisers to travel during the direct bargaining phase. Despite the offers made by the enterprise, no agreement was reached during bargaining between the enterprise and the union, and the union therefore opted to refer the case to an arbitration tribunal. In decision No. 00001497 of 29 April 2010, the Ministry of Social Protection ordered the establishment of an arbitration tribunal to examine and settle the collective labour dispute between the enterprise and SINTRAIME. On 4 August 2010, the Ministry of Social Protection constituted the tribunal, with one arbitrator appointed by the enterprise, another by SINTRAIME and the third from the Ministry roster. The tribunal began its sessions on 27 January 2011, with a ten-day deadline to settle the dispute. The enterprise explains that even in the absence of a collective agreement, it grants SINTRAIME the same benefits as those laid down in the collective agreement concluded with SINTRAVIFER (another trade union in the enterprise, with which a collective agreement was negotiated), according to the principle of equality among its workers; it lists some of the benefits, such as allowances, non-statutory bonuses, premiums and wage increases, including a 4.17 per cent wage increase granted in January 2011.
8. 457. As regards the tutela proceedings instituted against SINTRAIME, the enterprise states that the SINTRAVIFER trade union reported in its written statement that SINTRAIME violated its right to work, arbitrarily blocking access to the facilities, and since this was an illegal work stoppage it affected the workers, as the employer stopped paying their wages. SINTRAIME’s conduct affected not only the workers and their daily livelihoods, but also the general interest of transport users to whom the enterprise provided its services. The Labour Appeals Chamber of the Supreme Court of Justice ruled on 19 May 2009 that the tutela proceedings were irreceivable on the grounds that an appeal judgment was still pending regarding the Supreme Court ruling declaring the strike illegal and that, given that another judicial remedy was pending, the appropriate procedure was that provided for in Act No. 1210 of 2008 (declaration of a strike). This ruling was contested, and on 14 July 2009 the Criminal Chamber of the Supreme Court of Justice upheld the ruling handed down by the court of first instance, on the grounds that “as the Labour Appeals Chamber of this Court had already pointed out, another judicial remedy is pending, which is the special brief, priority summary procedure laid down for this purpose in Act No. 1210 of 2008”. The enterprise explains further that the ruling handed down by the Chambers of the Supreme Court in these tutela proceedings upheld the ruling declaring the strike illegal, on the grounds that that ruling was the appropriate mechanism for determining whether the union was acting in accordance with the law; this was done in the ruling handed down on 3 June 2009 by the Labour Chamber of the Supreme Court, which found that the work stoppage led by SINTRAIME was illegal and infringed the regulatory framework governing the prohibitions applicable to trade unions.
9. 458. As regards the anti-union dismissals alleged by FUNTRAENERGETICA (a committee of several union officials), the Government reiterates that the declaration of illegality of the strike is no longer within the Ministry’s remit and that the judicial authority had accordingly declared the strike illegal in a ruling handed down on 3 June 2009. According to the Government, the enterprise requested the Ministry of Social Protection for authorization to terminate the contracts of employment of the workers who had actively participated in the illegal work stoppage, and to that end instituted the required disciplinary proceedings, observing due process and the right to defence.
10. 459. In addition, the Ministry of Social Protection, in decision No. 2470, refrained from issuing a decision on the request submitted by the legal representative of the enterprise on the grounds that it was not competent to do so, stating, in the reasons for the decision, that it is the enterprise, as the party to the employment relationship and holder of the rights deriving therefrom, which examines the facts, determines their nature, exhausts the procedure and takes a decision; it is responsible for its actions, given that dismissal and the circumstances surrounding it may give rise to disputes, rights and conflicts that must be settled by the competent bodies. Accordingly, the Ministry was not competent to issue a decision on the request, and therefore left the enterprise the freedom, under its own responsibility, to take the decisions it deemed appropriate, based on the Supreme Court ruling declaring the strike illegal. In line with the reasoning given in decision No. 2470 of 2009, the enterprise provided the information and documents attesting that it had initiated a procedure to determine the individual conduct and degree of participation of each of the workers it intended to dismiss. According to the information provided by the enterprise, it followed the guidelines and procedures established by the law for such decisions.
11. 460. The enterprise states that due process was fully observed in terminating the contracts of employment. It referred to the competent judicial and administrative authorities to determine that SINTRAIME’s presence and conduct from 24 March to 19 April 2009 in the work stoppage were entirely illegal. In taking the decision to terminate the employment contracts of the persons who had actively participated in the illegal stoppage held by the trade union, the enterprise complied fully with all of the procedures established by the law and precedent. The workers were given the opportunity to present their arguments, by requesting them to explain their conduct and describe their participation in the legal work stoppage. The procedure was exhausted in compliance with the requirements and with article 29 of the Political Constitution and section 115 of the Substantive Labour Code. Since the legislation provides for several authorities to which persons – in this case, the workers – may appeal if they feel their rights are being infringed, the workers who participated in the strike and whose contracts were terminated by the enterprise in accordance with the Substantive Labour Code have brought their case to the courts, so that it will be a judge of the Republic, acting in full independence, who issues a ruling on the arguments put forward by the parties.
12. 461. In this regard, the enterprise states that tutela ruling No. 2009-00035 of the Eighth Municipal Criminal Court refers to observance of the legal procedures for termination of the employment contracts of the persons who had actively participated in the illegal work stoppage. The issue of whether the dismissals were legal and appropriate was examined in the context of tutela proceedings when 35 workers brought an action against the enterprise. Ruling in first instance, the Eighth Municipal Criminal Court rejected the tutela proceedings instituted by the workers on the following grounds: “there is no flagrant indication of violation of trade union immunity, precisely because it is the enterprise itself and the plaintiffs, who were aware that the strike in which they participated as members of SINTRAIME had been declared illegal in a decision handed down by the Supreme Court of Justice on 3 June 2009; they submitted to the Ministry of Social Protection documents and information justifying the termination of the contracts of employment of some of the employees who participated in the work stoppage, which, according to section 65 of Act No. 50 of 1990 ... In view of the above, this court finds that the defendant complied with the legal provisions in terminating the contracts of employment of the plaintiffs”. The decision was upheld by the 51st Criminal Court of the Backlog Reduction Circuit on 15 December 2009, which ruled that: “In the light of the foregoing legal framework, this court finds that the matter raised by the plaintiff cannot be construed as a violation of fundamental rights or unlawful conduct attributable to the enterprise, in which disciplinary proceedings were brought against several of the plaintiffs.”
13. 462. The enterprise adds that 30 of the 35 dismissed workers have court cases pending with the 20th Labour Court of the Bogotá Circuit, filed under No. 2009-700, seeking reinstatement.

C. The Committee’s conclusions

1. 463. The Committee recalls that the allegations pending in this case refer to acts of violence by police, anti-union dismissals and arrests of trade unionists.
2. 464. As regards the acts of violence allegedly committed in the premises of the FENOCO enterprise by anti-riot police, the Committee notes that the Government reiterates that police officers are legally authorized to use physical force in the performance of their duties if they cannot enforce compliance with the law by other means such as dialogue, persuasion or warning, and that, in the present case, the police responded to the urgent need to restore public order, as the work stoppage held by SINTRAIME was not peaceful. The Committee notes that the Government refers to damage to property and acts of vandalism committed on the installations and machinery of the enterprises. As regards the administrative investigation initiated against SINTRAIME for damage to rail installations, workshops and doors of the enterprise facility, the Committee observes that, according to the enterprise, the administrative proceedings are now under way in the Ministry of Social Protection, under the responsibility of Inspector No. 16, pending a decision on the request for evidence submitted by the defendant trade union. As a general principle, the Committee recalls that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 667]. The Committee requests the Government to keep it informed of developments and to send a copy of the decision once it is handed down.
3. 465. As regards the tutela proceedings instituted against SINTRAIME for violating the right to work of non-striking workers, the Committee notes that the enterprise links this legal action to the acts of violence mentioned above and that it states that: (1) the Labour Appeals Chamber of the Supreme Court of Justice ruled on 19 May 2009 that the tutela proceedings were irreceivable on the grounds that an appeal judgment was still pending regarding the ruling declaring the strike illegal; (2) this ruling was contested, and on 14 July 2009 the Criminal Chamber of the Supreme Court of Justice upheld the ruling handed down by the court of first instance; and (3) the issue of the legality of the strike was decided in the ruling handed down on 3 June 2009 by the Labour Chamber of the Supreme Court, which found that the work stoppage led by SINTRAIME was illegal and infringed the regulatory framework.
4. 466. As regards the allegations concerning the disappearance of the president of the Santa Marta branch of SINTRAIME (Mr José de Jesús Orozco), the Committee recalls that the Government had stated, in its previous reply, that after the work stoppage he had resumed his normal work for the enterprise, and hence had not disappeared on 19 April 2009 as stated by the complainant organization; in its reply, the Government indicated that it had requested information from the competent authorities on the matters raised in the allegation. The Committee observes that the Government does not provide any new information on the whereabouts of this trade union official and therefore reiterates its previous recommendation and urges the Government, and the complainant organization, to send new detailed information, without delay, on the alleged facts and on the whereabouts of this trade union official.
5. 467. As regards the allegation that several workers had been arrested after the work stoppage held by SINTRAIME, the Committee notes that, according to the Government, no worker is currently being held in custody for the events of 24 March 2009. The Committee requests the Government to provide information on the alleged arrests of workers immediately following the work stoppage in March 2009, and which the Committee understands were temporary, and if there are any penal charges pending against them.
6. 468. As regards the refusal to negotiate the list of demands presented by SINTRAIME, the Committee notes that, according to the enterprise: (1) the process of collective bargaining with SINTRAIME started on 4 September 2009; (2) despite the offers made by the enterprise in terms of economic benefits and trade union leave, no agreement was reached; (3) the trade union opted to refer the matter to an arbitration tribunal, which began its sessions on 27 January 2011, with a ten-day deadline to settle the dispute. The Committee observes that according to the enterprise, even in the absence of a collective agreement, it grants SINTRAIME the same benefits as those laid down in the collective agreement concluded with SINTRAVIFER, according to the principle of equality among its workers. The Committee requests the Government to send it the arbitration award handed down on the list of demands presented by SINTRAIME.
7. 469. As regards the anti-union dismissals alleged by FUNTRAENERGETICA, the Committee notes that, according to the enterprise, 35 dismissed workers brought an action against the enterprise and that, ruling in first instance, the Eighth Municipal Criminal Court rejected the tutela proceedings instituted by the workers on the grounds that: “there is no flagrant indication of violation of trade union immunity”, a decision which was upheld by the 51st Criminal Court of the Backlog Reduction Circuit on 15 December 2009. The Committee notes further that 30 of these 35 workers have court cases pending with the 20th Labour Court of the Bogotá Circuit, seeking reinstatement. The Committee requests the Government to keep it informed in this regard and to send a copy of the rulings handed down.