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

1. 471. The complaint is contained in two communications from the Confederation of Workers of Colombia (CTC) and the National Union of Workers of Family Compensation Funds (SINALTRACAF) dated 24 and 27 May 2010. SINALTRACAF sent additional information in communications dated 11 August and 9 November 2010.
2. 472. The Government sent its observations in communications dated 18 February and 4 March 2011.
3. 473. 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 organizations’ allegations

1. 474. In its communications of 24 May, 11 August and 9 November 2010, SINALTRACAF states that since 2005 the Government has been implementing administrative intervention measures concerning a number of family compensation funds (Comfenalco Tolima, Comfatolima, Comcaja, Confaca, Comfaba, Comfaoriente and Comfaboy), and the suspension of this measure is now being sought. A number of petitions have been addressed to the Superintendency for Family Benefits setting out the juridical arguments for discontinuing the intervention, according to which it grants sweeping powers to a public official, the Special Intervention Agent, who acts in the place of elected officials, thereby preventing workers from participating in the formulation of guidance given to the directors of the family compensation funds.
2. 475. The complainant organization highlights the systematic violation of the collective labour agreement, due process and the right of association, by the administrative director of the Comfenalco Tolima Family Compensation Fund (hereinafter “the Fund”), by the Special Intervention Agent and by the Superintendency for Family Benefits. The complainant organization explains that there have been violations of the relevant collective agreements, in particular the clause on trade union leave of absence (clause 4 of the collective agreement in force) and the clause concerning the Labour Relations Committee (clause 12 of the 2001 collective agreement) according to which at least one meeting of that Committee must be held each month. The complainant organization stresses that in 2010, there were no such meetings, and that without sound relations and communication between workers and employer it is difficult to maintain a healthy working climate.
3. 476. The complainant organization also explains that the Fund has not complied with the clauses relating to wage levels (clauses 1 and 8 of the collective agreement in force, clauses 13 and 14 of the 2007–08 collective agreement), staffing levels (clause 29 of the 1995 collective agreement), and increased allowances for replacing absent workers (clause 35 of the 2001 collective agreement), and that it has signed and deposited two collective agreements with the Ministry of Social Protection, Tolima Territorial Directorate, the first with SINALTRACAF and the second with the Association of Workers of Comfenalco Tolima (ASTRACOMTOL), in contravention of Decree No. 904 of 1951.
4. 477. The complainant organization complains of unwarranted interference by the administration of the Fund and of Comfatolima, which granted leave of absence to all the members of SINALTRACAF for the purpose of attending the meetings of July 2009 and March 2010, without consultation with the Ibagué sectional subdirectorate, and alleges that pressure was applied by various representatives of the employers including by the Fund’s fiscal inspector to encourage attendance at the March 2010 meeting in which, with the sponsorship of the directors of the two family compensation funds in question and without reaching a quorum, a sectional subcommittee of SINALTRACAF was elected in parallel with the legitimate one elected in July 2009 whose mandate was due to expire in July 2011. Labour proceedings were initiated on this issue and are still under way before the First Labour Court of Ibagué Tolima Circuit. The complainant organization emphasizes that the Fund claims recognition as a party to the proceedings through a petition with which it also seeks to freeze the automated deductions of union dues, leave of absence, and ultimately the collective agreement in force.
5. 478. The complainant organization adds that trade union leave has been denied to the national officials of SINALTRACAF by the administrative director charged with managing the Fund by the Superintendency, including permanent union leave negotiated under the collective agreement in force, on the pretext that it was not known which of the union’s national executive committees is the legitimate one; this is despite the fact that the other presumed executive committee is granted leave including at least one permanent leave arrangement; the situation needs to be changed by the Fund’s administration by granting union leave and other such entitlements established for trade union representatives under article 39, paragraph 4, of the Constitution.
6. 479. The complainant organization alleges that the administrative interventions in Comfatolima and Comcaja prevent participation by workers’ representatives in the Fund’s direct council and ultimately in drafting any guidelines which they might provide for the sound administration of the Fund.
7. 480. The complainant organization indicates that Comfenalco Tolima and Comfatolima have disregarded the numerous summonses by the Ministry of Social Protection in connection with the alleged repeated non-observance of the collective agreement, as a result of which the territorial body passed two resolutions on 28 and 30 July 2010 under which these funds were fined the sums of 10.3 million pesos and 7.721 million pesos respectively for ignoring the orders of the labour inspector in the investigation instigated at the request of SINALTRACAF.
8. 481. Furthermore, in its communication of 9 November 2010, the complainant organization states that violations continue, aggravated by harassment of union officials in the form of disciplinary proceedings for using union leave granted under the collective agreement, and the unwarranted withholding of union dues also continues under the terms of a procedural order given by the First Labour Court of Ibagué Circuit.

B. The Government’s reply

1. 482. In its communication of 18 February 2011, the Government states that the Office for Cooperation and International Relations requested information from the Territorial Directorate in the Department of Tolima and from the Superintendency of Family Benefits. The Superintendent sent his observations in a note dated 11 February 2011.
2. 483. The Superintendent states that, in the light of a review of Superintendency records, there has been no complaint from SINALTRACAF for alleged violations of union rights by the compensation funds Comfatolima, Comfenalco Tolima, Comcaja, Comfaca and Comfaboy.
3. 484. As regards Comfenalco Tolima, the Superintendent states that there are now three unions: two industry unions (SINALTRACAF and SINDICAJAS) and one company union (ASTRACOMTOL). SINALTRACAF, as an industry union, has members from Comfenalco Tolima and Comfatolima. There is an internal dispute both within the national executive committee, in which two separate committees claim to represent workers (one headed by Mr César Lozada and the other by Mr Saúl Betancourt Rico), and in the union’s Ibagué section, where there also appear to be two separate entities claiming the right to represent workers in negotiations with the Fund. The Superintendent states that in Bogotá a national general assembly of delegates took place and elected an executive committee headed by Mr César Lozada, but that despite his election the previous committee headed by Mr Saúl Betancourt Rico continues to operate.
4. 485. The Superintendent indicates that the section SINALTRACAF is the majority union and ASTRACOMTOL the minority union. Both have signed collective agreements with the Fund and these expired in December 2010. According to the information received, and given that the legal status of the two boards has not been determined, the Fund negotiated a list of demands with ASTRACOMTOL, which has an active labour committee with which the Fund has previously concluded collective agreements in the past two years. SINDICAJAS is an industry union that is currently inactive.
5. 486. The Superintendent states that on 14 December 2010 the Head of Strategic Development of the Family Compensation Fund informed SINALTRACAF that two lists of demands had been presented by the same union, and asked it to ascertain with which of the executive committees talks would be conducted. Mr Saúl Betancourt Rico, as national president of SINALTRACAF, sent out a number of letters requesting leave of absence from the administration to allow attendance by his committee’s members at union meetings; this request was turned down by the administration, and the union’s national executive headed by Mr César Lozada also denied the legitimacy of the other committee in favour of its own. The administration accordingly, as the matter came under its remit, sought a legal clarification from the Ministry of Social Protection and the matter is under consideration. The First Labour Court of Ibagué Circuit is currently considering which of the two executive committees is legally constituted.
6. 487. The Superintendent sets out in the following terms some of the background facts which, in his view, confirms that SINALTRACAF’s union rights have not been violated.
7. (1) Mr Saúl Betancourt Rico, in a written application to the Fund, sought the application of the fourth clause of the collective agreement, that is, permanent leave of absence. The Fund did not consider this request because it deemed it to be not appropriate in terms of its own interests and in the absence of legal clarity.
8. (2) On 28 March 2009, a general assembly elected an executive committee with the following members: César Lozada, Luis Alberto Ogaza Furníeles, Mario Rubén Conteras Parada, María Rosario Castro Ríos, Jairo Díaz Méndez, Sebastián Quintero Valencia, Flor Mery Vargas Guerrero, Juan Marín Almeida Castro, Doralía Rocha Herrán and Elizabeth Liñán Rapalino.
9. (3) On 6 April 2009, Mario Rubén Conteras Parada, General Secretary of SINALTRACAF, informed the Fund by fax of the SINALTRACAF national delegates’ assembly on 28 March 2009. In the same communication he reported that Mr Saúl Betancourt Rico (a worker at the company) and René Bitar Castellón were in the process of being expelled by the union for holding a national assembly of delegates in Ibagué on 22 March 2009 without a quorum being reached.
10. (4) On 21 April 2009, the 11th Civil Municipal Court, ruling on the legal protection case (tutela) of first instance brought by Mr Saúl Betancourt Rico against Mr César Lozada for failure to respect due process and the right of association, considered that the plaintiff’s case was not proven.
11. (5) On 6 July 2009 SINALTRACAF informed the company of the election, by the ordinary general assembly of delegates held on 4 July 2009 in Ibagué, of an executive committee with the following members: Ana Elvia Casas Espinosa, María Edith Suárez de Ramírez, Ana Cristina Buitrago Reyes, Martha Isabel Durán Llano, María Cristina Castro Rondón, Saúl Betancourt Rico, José Manzur Parra Rodríguez, Fernando Rodríguez Pomar, Luz Ángela Hernández and Liliana María Arias Ospina.
12. (6) On 16 July 2009 the Seventh Municipal Civil Court ruled on the tutela action instigated by Mr Saúl Betancourt Rico against the Fund on the grounds that he believed his right of association and collective bargaining had been infringed, and requesting application of the fourth clause of the collective agreement concerning permanent union leave of absence and appointment of a replacement. This application was rejected on the grounds that there is another means of legal redress available. It was explained that at this time the executive committee was headed by Mr César Lozada.
13. (7) On 4 August 2009, the Ministry of Social Protection ordered the administrative director of the Fund to attend an administrative labour hearing and an investigation was started into claims that the collective labour agreement had been violated.
14. (8) On 6 January 2010, through resolution No. 0553 (a copy is provided with the complaint), the Ministry of Social Protection declined to adopt administrative measures against the Fund. The Ministry considered that the union was afflicted with an internal dispute, as there were two executive committees elected in what was presumed to be a legitimate manner and which met the requirements which were subject to verification by the depositary.
15. (9) In a communication dated 22 January 2010, SINALTRACAF informed Comfenalco that 14 of its members had been expelled by a decision adopted on 28 March 2009 by the national delegates’ assembly and confirmed by the same national assembly held on 15 December 2009 in Bogotá; the members in question were notified of their expulsion on 6 August 2009. It should be noted that the signatory to this communication which reached the Fund on 26 January 2010 was Mr César Lozada as chairperson of the national executive committee.
16. (10) On 26 January 2010, SINALTRACAF, represented by Mr César Lozada, demanded a freeze on all assets arising from the collective agreement, which were supposed to be transferred to the sectional subcommittee because of the expulsion of certain members of that body. On the same day SINALTRACAF, in a letter signed by Mr Mario Rubén Contreras, General Secretary of the National Executive Committee, reported that she had sent 14 notices to workers informing them of their expulsion from the union and two addressed to the administration. Although the normal procedure for delivery of personal correspondence was followed, the workers in question refused to accept the notices which were then returned to SINALTRACAF, with the appropriate records of what had occurred. The Fund received from SINALTRACAF notification of the expulsion of the workers in question.
17. (11) On 3 February 2010, the corporation was informed of the election of the National Executive Committee of SINALTRACAF with the following members: Saúl Betancourt Rico, Arnold Sandoval, María Luisa Bríñez, Gloria Bernal, Reinal Bitar Castellón, Jesús Martínez, Jenny Morales, José Manzur Parra, Luz Divia Angulo and Liliana García. On the same day the Ministry of Social Protection reported that SINALTRACAF had elected an executive committee and provided a copy of the certificate of deposition No. 006 dated 29 January 2010, in which once again Mr Saúl Betancourt Rico is identified as the president.
18. (12) On 4 March 2010, in Ibagué, a general assembly of SINALTRACAF members was held and elected another executive subcommittee for the Ibagué sectional subdirectorate with the following members: Darcy Janeth Huerfia Moreno, Óscar Flórez Sandoval, Adriana del Rocío Arango, Carlos Alberto Delgado, César Augusto Cruz Bernal, Guillermo Gómez González, Luis Ernesto Bernal, Dubeeney Díaz Mayorga, María Cristina Parra Ovalle and Edzel Castro Sierra. The Ministry of Social Protection, Tolima Territorial Directorate, informed the Fund of this election on 11 March as did the members of the executive committee on 17 March of that year. On 13 April 2010 the corporation was informed of a new rotation of posts in the sectional subcommittee headed by Fernando Rodríguez.
19. (13) On 14 April 2010, Darcy Janeth Huerfia, chairperson of one of the executive committees of SINALTRACAF, informed the Fund of a rotation within the executive subcommittee. The Fund also received a communication from Mr César Lozada stating that this national board recognized only the sectional subcommittee headed by Ms Darcy Janeth Huerfia.
20. (14) On 15 April 2010, the Fund responded to the request made by Ms Darcy Huerfia, chairperson of one of the SINALTRACAF executive subcommittees, for union leave for the subcommittee most recently registered with the Ministry of Social Protection. On 5 May 2010, the Ministry of Social Protection, through its legal office and in response to a request from the Fund, issued a legal clarification regarding the internal union dispute arising from the existence of two sectional executive subcommittees.
21. (15) On 3 June 2010, the Fund was informed of the registration of a SINALTRACAF sectional committee in the municipality of Honda, consisting of workers Luis García and Luis Martínez.
22. (16) On 28 June 2010, following the examination of the case in the proceedings initiated by the sectional executive subcommittee headed by Fernando Rodríguez against the one headed by Ms Darcy Janeth Huerfia with the aim of determining who could claim to represent the union in question, the Fund applied to the judge for authorization to deposit amounts corresponding to trade union dues as a guarantee. This was approved on 7 July 2010 and confirmed in an official communication to the Banco Agrario de Colombia from the First Labour Court of Ibagué Circuit.
23. (17) On 10 July 2010, the Fund was informed of the formal record of a change in the Ibagué sectional executive subcommittee in the form of a rotation of posts. On 15 July 2010, the Fund informed the two Ibagué sectional executive subcommittees that union leave had been refused from that date until such time as a ruling was handed down by the First Labour Court of Ibagué Circuit. On 28 October 2010, the First Labour Court refused the payment order sought by the SINALTRACAF sectional subcommittee headed by Fernando Rodríguez, which was intended to ensure payment of union dues (a copy of the order is provided with the complaint).
24. (18) On 29 October 2010, the backlogs chamber attached to the Sixth Labour Court of Ibagué Circuit in a judgement hearing rejected the claims made by SINALTRACAF against the Fund in which it had sought a ruling that the collective agreement signed on 19 February 2009 by the Fund and ASTRACOMTOL was illegal.
25. (19) On 25 January 2011, the Ministry of Social Protection adopted resolution No. 01598 according to which “in the light of the foregoing considerations, union leave of absence for the person claiming to be the current chairperson is dependent on the resolution of an internal dispute within SINALTRACAF. We therefore reiterate that no liability can be attributed to the Fund, and hence this dispute can only be resolved by a circuit labour judge in the light of the Constitutional Court ruling No. C-465 of 2008”. It follows from the previous account of the Fund’s actions that no violation of trade union rights can be confirmed, as the internal union dispute has created an administrative burden for the company. The latter has tried to act impartially in accordance with the guidelines given by the Ministry of Social Protection which is responsible for settling these disputes.
26. 488. As regards the sanction imposed by the Ministry of Social Protection, the Superintendent states that although the Fund was fined by the Ministry for failing to attend hearings, this does not in the Fund’s view constitute a violation of labour laws and regulations. The Superintendency reiterates that it has always been attentive to any disputes arising within family compensation funds subjected to intervention measures, although it has in such cases referred the matter to the Ministry of Social Protection for appropriate action in accordance with its mandate. The fact that the Fund has been subjected to administrative intervention does not confer on the Superintendency powers other than those specifically set out in law, and does not relieve the Ministry of Social Protection of the obligation to continue to exercise the functions of inspection, supervision and monitoring of trade union organizations.
27. 489. The Government states that according to the information received from the Tolima Territorial Directorate, action was taken along the following lines:
    • – As regards the failure to respect leave arrangements agreed between the company and the union, as alleged by Mr Saúl Betancourt Rico, an investigation was started and led initially to resolution No. 0553 of 6 January 2010 (a copy is provided with the complaint). The complaint refers specifically to the failure to respect the permanent union leave for its chief official. On this occasion the Territorial Directorate refrains from applying any administrative measures against the Fund in the light of indications that the chairperson of the national executive committee was no longer Mr Saúl Betancourt Rico, as new elections, in which Mr César Lozada had been elected to that post, had been registered with the Ministry of Social Protection. This situation was construed as evidence of a dispute within the union and for that reason it was decided not to take action.
    • – An appeal against the administrative act was filed by Mr Saúl Betancourt Rico, and resolution No. 0629 of 1 February 2010 upheld the decision of first instance in that it had been shown that although Mr Betancourt Rico was chairperson of the executive committee on 22 March 2009, the union subsequently appointed a new executive committee with Mr César Lozada as chairperson (record No. 012, deposited on 2 April 2009 with the Labour and Social Security Inspectorate based in Zipaquira). Subsequently in resolution No. 0651 of 8 February 2010, the previous decision of the Territorial Directorate was again upheld, as the Ministry of Social Protection cannot refuse registration of new trade union executive bodies. There was clearly an internal dispute within the union and the consequences of this should not be borne by the Fund. At that time Mr Betancourt Rico had not shown himself to be entitled to permanent leave of absence for union activities and had been unable to show that he was chairperson of the executive committee, and hence the original decision is upheld.
    • – Once Mr Betancourt Rico had demonstrated his status as executive committee chairperson, the coordinating body of the Inspection and Oversight Group attached to the Territorial Directorate adopted resolution No. 0692 of 16 February 2010, according to which, while there was no proof of any systematic non-observance of the collective agreement, it had been noted that there had been only four meetings of the Labour Relations Committee, although according to the collective agreement there should be such a meeting once a month. In the light of the foregoing, it was decided to order the Fund to comply henceforth with the collective agreement or face sanctions. In response to this resolution, Enrique González Cuervo, the administrative director responsible for the Fund, filed an appeal for reversal. This was later followed by the adoption of resolution No. 0830 of 8 April 2010 and administrative act No. 0942 of 19 May 2010.
    • – Through Order No. 00567 of 22 April 2010, the Fourth Labour Inspector of Tolima was instructed to proceed with an administrative labour investigation in the Fund in connection with the complaint presented by Mr Saúl Betancourt Rico regarding the violation of the fourth clause of the collective labour agreement (concerning permanent union leave). The employer, in this case the administrative director, was required to give testimony and to provide the relevant documents in order to clarify the facts. A hearing was scheduled initially for 9 June 2010, but the director was excused by the Head of Strategic Development of the Family Compensation Fund on the grounds that it was not possible for the director to attend, and a new date was requested and fixed for 17 June 2010. The date was changed a third time to 21 July 2010 but once again a postponement was requested.
    • – From the foregoing it can be concluded that there was no real will on the part of those involved to comply with the three requirements stated by the Ministry of Social Protection, to which little importance appeared to be given, while it was clear that the Head of Strategic Development of the Family Compensation Fund was fully authorized to comply and to provide the documents asked of her; accordingly the Ministry of Social Protection, Tolima Territorial Directorate, in accordance with its statutory authority, adopted a final resolution No. 01137 on 28 July 2010 and confirmed that decision through resolutions Nos 01243 of 30 August 2010 and 6 September 2010, fining the Fund Comfenalco Tolima 10.3 million pesos.
28. 490. In its communication of 4 March 2011, the Government sends the Fund’s observations on the allegations made by SINALTRACAF which reiterate the information provided by the Superintendent for Family Benefits. As regards the possible suspension of the administrative intervention measure to which this body is subject, the Fund states that it is not appropriate to refer to this measure because it was adopted and implemented by the natural supervisory body for the family benefits system, and the Fund is not competent to call it into question.
29. 491. The Fund adds that on 27 January 2011, in response to the complaint filed by Mr Saúl Betancourt Rico and Mr Fernando Rodríguez Pomar representing one of the executive committees of the Ibagué sectional subdirectorate of SINALTRACAF, the Ministry of Social Protection, Territorial Directorate Tolima, decided in resolution No. 01614 (a copy is attached to the complaint) to refrain from any administrative measures against the Fund, and ordered the shelving of the proceedings for lack of any legal basis to the complaint contesting the legitimacy of the collective negotiations which the Fund had conducted successfully with the union ASTRACOMTOL. By the same reasoning, in resolution No. 1653 of 15 February 2011 adopted by the territorial directorate of the Ministry of Social Protection (copy attached with the complaint) it refrained from applying any administrative sanctions against the Fund because it considered unfounded the complaint concerning the alleged refusal by the Fund to negotiate a list of demands, which had been filed by one of the executive subcommittees of the Ibagué sectional subdirectorate of SINALTRACAF headed by Fernando de la Cruz Rodríguez Pomar. This decision legally confirms the Fund’s position, endorses its procedures for dealing with the dispute within SINALTRACAF, and keeps the Fund out of a dispute which is outside its remit and must be settled by the ordinary judicial authorities (the First Labour Court of Ibagué Circuit) to which it has been referred.
30. 492. Lastly the Government emphasizes that the Ministry of Social Protection has acted diligently in the present case and taken the necessary corrective measures in accordance with its area of competence. According to the information provided by the Superintendency and the information available to the Ministry, the present case has included issues relating to the internal problems of the unions concerned.
    • v

C. The Committee’s conclusions

1. 493. The Committee notes that in the present case the complainant organizations allege systematic violation of the collective agreements in force with regard to trade union leave of absence, deduction of union dues from wages, and wage increases, by the family compensation funds, to the detriment of the complainant union SINALTRACAF, and failure to hold regular meetings of the Labour Relations Committee.
2. 494. The Committee notes in this regard that according to the complainant organizations: (1) an administrative intervention measure applied since 2005 in a number of family compensation funds prevents participation by elected officials, especially those of trade unions; (2) Comfenalco Tolima (the Fund) concluded a collective agreement with a minority union, the Association of Workers of Comfenalco Tolima (ASTRACOMTOL); and (3) there were acts of interference and pressure placed on union officials at election assemblies of SINALTRACAF, and a second executive committee was elected in an irregular way without the requisite quorum having been reached at the meeting in question.
3. 495. The Committee also notes the comments of the Superintendent for Family Benefits and of the Fund communicated by the Government, according to which: (1) no complaint has been filed by SINALTRACAF for alleged violations of trade union rights by the compensation funds Comfatolima, Comfenalco Tolima, Comcaja, Comfaca and Comfaboy; (2) there are now three unions at Comfenalco Tolima: two industry unions (SINALTRACAF and SINDICAJAS) and one company union (ASTRACOMTOL); (3) the two industry unions signed a collective agreement with the Fund which expired in December 2010; (4) there is an ongoing internal dispute in SINALTRACAF (the complainant organization), both within the National Executive Committee where two separate committees are in dispute (one headed by Mr César Lozada and the other by Mr Saúl Betancourt Rico), and in the Ibagué section where there are also apparently two separate committees claiming the right to represent workers in negotiations with the Fund; (5) two lists of demands were submitted and are currently before the First Labour Court of Ibagué Circuit, which will determine which is the legally constituted executive committee; (6) the Ministry of Social Protection fined the Fund for failing to attend certain hearings which it had been ordered to attend; that, however, does not in its view constitute a violation of trade union laws and regulations; and (7) the fact that the corporation is subject to administrative intervention does not give the Superintendency powers other than those specifically set out in law and does not relieve the Ministry of Social Protection of the obligation to continue to exercise the functions of inspection, supervision and monitoring of trade union organizations.
4. 496. The Committee notes the Government’s statements to the effect that: (1) as regards the failure to respect union leave agreed between the Fund and the union, as alleged by Mr Saúl Betancourt Rico (signatory to the complaint), an administrative investigation was started and led initially to resolution No. 0553 of 6 January 2010 (a copy is attached to the complaint) in which the Territorial Directorate refrains from applying any administrative measures against the Fund in the light of indications that the chairperson of the national executive committee was no longer Mr Saúl Betancourt Rico, as new elections, in which Mr César Lozada had been elected to that post, had been registered with the Ministry of Social Protection; (2) this situation was construed as evidence of a dispute within the union and for that reason it was decided not to take any action; (3) Mr Betancourt Rico was not shown to be entitled to permanent leave of absence for union activities as he was unable to show that he was chairperson of the executive committee; (4) subsequently he produced proof of his status as chairperson (the Committee nevertheless draws attention to the fact that according to the Superintendent for Family Subsidies, judicial proceedings are under way to decide which is the legitimate executive committee); and (5) when this occurred, the coordinating body of the Inspection and Oversight Group attached to the Territorial Directorate adopted the resolution of 16 February 2010, in which it expressed the view that although there was no proof of any systematic non-observance of the collective agreement, it had been noted that there had been only four meetings of the Labour Relations Committee, although according to the collective agreement there should be such a meeting once a month; it was therefore decided to order the Fund to comply henceforth with the collective agreement or face sanctions; the Administrative Director did not attend a hearing to give testimony, and the Territorial Directorate therefore passed a resolution on 28 July 2010 fining the Fund the sum of 10.3 million pesos. The Committee also notes that according to the Superintendent for Family Subsidies, the collective agreement signed by SINALTRACAF expired in December 2010.
5. 497. As regards the alleged systematic violation of the clauses of the collective agreement concerning trade union leave and wage increases, the Committee notes that the Government, the Superintendence for Family Subsidies, and the Fund, state that they took no action because they did not know which union executive committee was the one legitimately elected. The Committee notes that in this case, there is an internal dispute within SINALTRACAF which has been referred to the judicial authority (the complainant union refers to the existence of proceedings and the Superintendent for Family Subsidies notes that the case is being examined by the First Labour Court of Ibagué Circuit with a view to ascertaining which of the union executive committees is legally constituted); the Government states also that Mr Betancourt Rico provided proof of his status as “chairperson” which made it possible to begin investigations into the violations of the collective agreement alleged in this case. The Committee expects that the courts will rule on this case without delay in order to allow the union to function effectively. The Committee requests the Government to communicate the ruling eventually handed down concerning the legitimate elected executive committee and to inform it of the outcome of the investigations concerning violations of certain clauses of the collective agreement. The Committee considers that it should be possible to implement the clauses of the collective agreements concerning wages once the administrative authority has determined the amounts owed to the workers. The Committee firmly expects that the proceedings will be concluded soon, and that once the current proceedings have been concluded, SINALTRACAF will be able to begin negotiations with the employer with a view to renewing the collective agreement that expired in December 2010.
6. 498. As regards the alleged administrative intervention in the family compensation funds and the application to suspend that measure, the Committee notes that according to the complainant organization, the Superintendency, in implementing such a measure, is granting sweeping powers to a public official, the Special Intervention Agent, who acts in the place of elected officials, thereby preventing workers from participating in the formulation of guidance which the body in question provides for the directors of family compensation funds. The Committee also notes that according to the Superintendency, the fact that the Fund is subject to administrative intervention does not confer on the Superintendency powers other than those specifically set out in law and does not relieve the Ministry of Social Protection of the obligation to continue to exercise the functions of inspection, oversight and monitoring of trade union organizations. The Committee takes due note of the economic intervention measures in the family compensation funds but considers that this should be compatible with periodic consultations with union representatives. The Committee notes the administrative sanction imposed on the Fund for failure to hold regular meetings of the Labour Relations Committee.
7. 499. As regards the alleged persistence of violations, aggravated by harassment of union officials in the form of disciplinary proceedings for using union leave agreed under the collective agreement, and the unwarranted withholding of union dues through a procedural order adopted by the First Labour Court of Ibagué Circuit, the Committee requests the Government to send its observations in this regard.