Informe provisional - Informe núm. 360, Junio 2011

1. 453. The complaint is contained in two communications from the National Union of Food Workers (SINALTRAINAL) dated 17 June 2009, received in the Office on 2 July 2010.
2. 454. The Government sent its observations in a communication dated 31 January 2011.
3. 455. 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. Allegations of the complainant organization

1. 456. In its communication of 17 June 2009, the complainant organization indicates that the workers of the company CI Santandereana de Aceites SA (CI SACEITES SA), organized in a trade union, have been the victims, since 2005, of numerous anti-union acts and practices contrary to collective bargaining. More recently, the complainant organization explains that on 14 January 2008, it submitted a set of claims to the company and on 10 February called a meeting of trade union members during which they voted to convene the compulsory arbitration tribunal as a legal means of resolving the dispute in the bargaining of the set of claims. On 10 September 2008, by Resolution No. 003452, the Ministry of Social Protection ordered the constitution of the compulsory arbitration tribunal. Over a year later, the tribunal has not reached a decision, which the complainant union interprets as a protraction to allow the employer to gain time as a tool to exert pressure on the unionized workers who, meanwhile, have not received wage increases and are denied other rights, while the non-union workers received wage rises through a collective accord. This pact with non-union workers, which was renewed for the period 21 September 2007 to 20 September 2009, seeks to duplicate SINALTRAINAL and prevent workers from organizing in a trade union.
2. 457. In addition, the complainant organization alleges that on 16 December 2007, Henry Trujillo, José Samuel Duarte Ballesteros and Julio César Almeyda Barón, all workers employed by the company, joined SINALTRAINAL and from that moment the company renewed its persecution of unionized workers. The worker Julio César Almeyda Barón was dismissed in December 2006 after his return from sick leave and a process of removing the trade union status was initiated in order that a judge could authorize the termination of his contract of employment. According to the complainant organization, the proceeding is in progress in the Fourth Labour Court, Bucaramanga.
3. 458. The complainant organization emphasizes that on 15 August 2008, the Fourth Labour Court, Bucaramanga, gave notice that the claim by the company for removal of trade union status from Julio César Almeyda Barón would be received and a hearing date was fixed. In these circumstances, the company manager verbally refused the worker leave to prevent him appearing before the judge and told him that he should leave the trade union or he would end up in prison, as happened to an ex-employee of his in another company where he was also a manager, and that in some cases trade unionists turned up dead but nobody knew why they were killed. The complainant organization stated that in the face of this refusal by the company, he requested leave to appear before the judge in writing. The manager granted the leave on condition that the worker obtained a certificate from the court.
4. 459. The complainant organization states that, on 4 August 2008, the union member José Samuel Duarte Ballesteros, a company worker, was at his workplace carrying out his normal activities and when he opened the desk drawer to take out a pen, the technical manager came up and because there was a sheet of paper with a numbers game, SUDOKU, in the desk, the manager accused the worker of an offence, saying that he had caught him in the act of playing a game. The worker said that it was not true. On 5 August 2008, the human resources management department called the worker to a disciplinary hearing, but the hearing was postponed to 8 August 2008 because the worker was sick, and on 12 August 2008, the worker was notified of the unilateral and unfair decision by the company to suspend his contract of employment for eight days.
5. 460. Furthermore, on 1 April 2008, the company issued a memorandum giving instructions to assign new normal functions of the worker, Henry Trujillo, a SINALTRAINAL member, tasking him with going to other offices to carry documents to the administrative area and open a gate to the boiler section, resulting in the worker being open to an accusation of failing in his duties of supervising and controlling the entry of vehicles loading and unloading raw materials. The head of human resources management notified the worker that he was prohibited from entering the boiler area and assigned the job to another worker. The complainant organization emphasizes that the worker was prohibited from moving within the company’s installations to prevent communication with other workers because he was a member of SINALTRAINAL. On 16 April 2008, SINALTRAINAL notified the company that this constituted persecution and violation of freedom of association and the right to organize.
6. 461. In addition, on 25 April 2008, the complainant organization requested the company for a meeting of the SINALTRAINAL claims committee, with advice and representation of the trade union’s executive board, to deal with subjects such as, among other things, respect for the contract of the worker Julio César Almeyda Barón regarding removal of his trade union status. On 30 April 2008, the head of human resources management, representing the company, pressured the members of the SINALTRAINAL claims committee to hold the meeting without the participation of the trade union delegates and officials. In the light of these events, SINALTRAINAL informed the Ministry of Social Protection, but there has been no pronouncement to date.
7. 462. The complainant organization also reports many other acts of anti-union discrimination:
   • – on 18 January 2008, a communication was sent to the company because it had refused education support for the children of the unionized workers José Samuel Duarte Ballesteros, Henry Trujillo and Julio César Almeyda Barón;
   • – on the same day, a letter was sent to the company because it had refused holiday assistance to the unionized worker Henry Trujillo and a request for work clothes and shoes for the unionized worker Julio César Almeyda Barón was submitted, as he had not been allowed to change his clothes and had been refused a locker;
   • – on 15 February 2008, in reprisals against unionized workers, the company removed Julio César Almeyda Barón from the list of those in receipt of medical assistance, although that was an acquired right;
   • – on 3 February 2009, the company refused medical assistance to the unionized worker Jhon Fredy Salazar. It again refused work clothes and a locker to the unionized worker Julio César Almeyda Barón. In addition, the company discriminated against six unionized workers (among them Julio César Almeyda Barón, Henry Trujillo and José Samuel Duarte Ballesteros), as they paid a productivity premium to all
     • non-union workers, violating the right to equal treatment by denying that right because that premium had been paid since 2002 under the heading of productivity bonus;
   • – in accordance with article 23 of the Constitution, the company was presented with a claim requesting the granting of an employee life insurance policy to the worker José Alfredo Parra Oliveros. On 7 January 2009, the unionized worker was prohibited from taking documents to the union notice board, on the grounds that he was leaving his workplace and for that reason the trade union was summoned to the claims committee on 14 January 2009;
   • – on 16 February 2009, the company was requested to relocate the trade union notice board, as the place where it was located was in a place which intimidated the workers, as it was placed next to the offices of the company management, who drew up lists of those who came to read it and prohibited employees from seeing the content of the trade union notice board;
   • – on 12 March 2007, the company hired the company “Temporing” to carry out raids on workers’ houses, on the grounds that the social welfare coordinator did not have enough time to carry out the visits ordered by the management. Many workers, out of fear created by the company, were obliged to allow company officials into their homes to question and intimidate their families, take photographs and film the interior of the houses. In the light of these abuses, the complainant organization reported these events to the prosecutor’s office on 4 February 2008. The case was shelved.
8. 463. The complainant organization indicates that the company terrorized workers, telling them that due to the set of claims presented by SINALTRAINAL, it had decided to sell the shares of a company called “Arroz Diana” and began to notify the supposed termination of the contracts of employment of those working in the company as a strategy to allow the sacking not only of the people belonging to a trade union but also to juggle the jobs of those who are still not unionized. In response to this, the company Employees Fund (FESA LTDA) received a notice from the board of directors prohibiting loans to any member until May 2009 as the policies of the new owners could change the procedures for the operation of FESA LTDA.

B. The Government’s reply

1. 464. In its communication of 31 January 2011, the Government states that it requested information from both CI SACEITES SA and the regional management of Santander with the objective of providing an appropriate reply to the Committee.
2. 465. With regard to the alleged permanent industrial disputes and difficulties faced by workers to obtain recognition of their labour rights, the company replies that it has always maintained an atmosphere of respect for workers’ rights, whether or not they are members of the trade union. In addition, the company describes the different policies which it implements to prevent worker/employer disputes, such as the management’s open-door policy. It also points out that the trade union exercises in full its trade union rights of collective bargaining and promotion of the trade union through the company notice board.
3. 466. As regards the trade union’s assertion that the company exerts pressure on workers who are members of the trade union to give up their membership, the company replies that the assertion is not true and that if workers give up their trade union membership, they do so freely and of their own volition, evidence of which is that some workers who are trade union members still belong to the company at the present time.
4. 467. With respect to the subsequent complaint mentioning Mr Henry Trujillo, Mr José Samuel Duarte Ballesteros and Mr Julio César Almeyda Barón, the company replies that, while these workers decided to join SINALTRAINAL at some point in time, that in no way resulted in any type of retaliation or persecution against them. The assertion in this respect is without any substance. The company goes on to explain and justify the reason for its decisions relating to each of the above workers.
5. 468. In the case of Julio César Almeyda Barón, the company replies that it called the employee to account for the excessive bills for the mobile phone owned by the company which had been allocated to him to carry out his duties and for which it had to pay the bills. Due to the employee’s misuse of this work tool, the company decided to terminate his contract of employment, but nevertheless respecting his union status and observing due process. The proceedings at first instance are currently pending a decision in the Bucaramanga High Court.
6. 469. In the case of José Samuel Duarte Ballesteros, the company replies that during working hours and in the course of his duties, the worker was caught in the act in activities which had nothing to do with his work. Once the disciplinary procedure had been carried out, the company considered that there was a disciplinary offence and applied the sanction provided for the purpose in the company’s internal rules. The disciplinary procedure was applied in the same way as to any worker whose conduct departs from the norm.
7. 470. In the case of Henry Trujillo whose job, at the time to which the communication refers, was security assistant, the company replies that in the light of the objective needs of the company, on 15 April 2008, he was assigned functions involving going to other offices to carry documents to the management area and to open the door of the boiler section. That is the objective truth which reflects the company’s possibilities. That these new functions should result in “the worker being open to an accusation of failing in his duties of supervising and controlling the entry of vehicles” is mere supposition and as such, lacks any rational substance. Moreover, the company indicates that it is not true that the head of human resources management imposed the prohibitions on the worker concerning the places to which he went in the manner indicated. The reason for asking him to remain at his post was purely and simply a matter of efficiently performing the tasks for which he was hired.
8. 471. In the case of Julio César Almeyda Barón, the company replies that, according to the communication sent on 9 February 2009 to Julio César Almeyda Barón, it is clear that the worker refused to use the equipment supplied. Under the legislation, “a worker is obliged to use clothing and shoes provided by the employer in his work and if he fails to do so, the employer is relieved of the need to supply it thereafter”, and he was provided with two equipments during that year. In addition, Julio César Almeyda Barón was informed that the company provided a locker for the exclusive use of the technical area and stores, because those workers needed to change from their work clothes at the end of the working day and store their protective equipment, which are not required for an administrative function.
9. 472. In the case of José Alfredo Parra Oliveros, it should be emphasized that where there is a group life insurance policy for company workers, the claim that it should be granted to a particular worker is invalid.
10. 473. The company explains that workers have two extra-judicial instruments at their disposal, the arbitration award and the collective accord. Each of the workers has a free choice of these instruments. The rights that derive from these instruments will be applied to the persons who choose them according to their choice.
11. 474. With respect to the relocation of the notice board, the company states that the place where it is located was chosen by the workers themselves in 2005, and at no time has a list of people coming to see it been drawn up, so the reason for such fear is inexplicable. The installation of a second notice board was authorized but so far the workers have not made use of it.
12. 475. The acts of the “Temporing” company, which is denounced as raiding houses of workers, who allowed the entry of their personnel for fear of some type of retaliation by the company, are described as an invasion of their privacy. The company states that the company’s objective was not such. “Temporing” was hired to support payroll processes. It was envisaged that the company would make home visits to management and security control staff, as set out in the company’s policies and rules. The staff could allow or refuse the company visit and their decision was respected.
13. 476. With regard to the allegation that the company terrorized workers with the sale of the shares of the company “Arroz Diana”, the company denies the argument and assures that it informed all the workers that there would be no changes in the production side of the company. It states that FESA LTDA is a separate legal entity from the company and for that reason it does not interfere in any way in its lending policies, thus it cannot be accused of prohibiting the granting of loans.
14. 477. Lastly, with respect to the conduct of managers in relation to union members because of their membership of the trade union, the company states that it has always respected the decision of its workers to join a trade union, thus ensuring harmonious labour relations with the workers.
15. 478. The Government indicates that the Ministry of Social Protection, through its local offices, carried out investigations into the lodged complaints as follows:
    • – in case No. DI 0265 of 2005, an investigation into alleged anti-union persecution was carried out, and the investigation exonerated the company in Resolution No. 593 of 2006;
    • – in case No. 14313-0015 of 2010, an investigation was initiated into violation of the collective agreement, and a decision is pending in this case.

C. The Committee’s conclusions

1. 479. The Committee observes that in this case, the complainant organization alleges anti-union practices and acts of discrimination against trade unionists in the company CI SACEITES SA including pressure to give up their trade union membership and practices contrary to collective bargaining, including the conclusion of a collective accord with non-union workers.
2. 480. With regard to the allegations relating to collective bargaining, the Committee notes that, according to the complainant organization: (1) over a year had passed since the presentation of the set of claims (2008) without the Compulsory Arbitration Tribunal, whose intervention was decided by the workers, issuing an arbitral award; and (2) the company signed a collective accord with non-union workers to duplicate SINALTRAINAL and prevent workers from joining the trade union.
3. 481. The Committee also notes that the Government indicates that the Ministry of Social Protection, through its local offices, initiated an investigation into the alleged violation of the collective agreement and that a decision from the Minister in this investigation is pending.
4. 482. The Committee wishes to point out, in general terms, that with respect to the allegations that legal proceedings are usually too long, the Committee has recalled the importance that it attaches to the need to resolve proceedings rapidly, given that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 105]. The Committee emphasizes the importance of the proceeding concluding promptly and that the tribunal should pronounce on the set of claims. In addition, observing that collective bargaining with a trade union and a collective accord signed with non-union workers coexist in the same company, the Committee points out that the Collective Agreements Recommendation, 1951 (No. 91), emphasizes the role of workers’ organizations as one of the parties in collective bargaining; it refers to representatives of unorganized workers only when no organization exists [see Digest, op. cit., para. 944]. In these circumstances, the Committee requests the Government to take appropriate measures to ensure that the proceeding in progress in the Compulsory Arbitration Tribunal is completed promptly and that it should send it a copy of the arbitral award issued. In addition, the Committee requests the Government to send it the results of the investigation into the alleged violation of a collective agreement in which the Minister’s decision is pending, and expects that the investigation will include the alleged use of a collective accord for anti-union purposes.
5. 483. In relation to the alleged proceedings for the dismissal of trade unionists or pressure on workers to give up their union membership, the Committee notes that, according to the complainant organization, when the workers Henry Trujillo, José Samuel Duarte Ballesteros and Julio César Almeyda Barón joined the union in December 2007, the company renewed its persecution of the unionized workers and some gave up their membership. The Committee notes that, according to the company, if the workers gave up their union membership, it was freely of their own volition, and other unionized workers were still working in the company at the present time.
6. 484. In the case of Julio César Almeyda Barón, the Committee notes that, according to the complainant organization, the worker was dismissed in December 2006 after his return from sick leave and a process of removing his trade union status was initiated in order that a judge could authorize the termination of his contract of employment, and the proceedings are in progress in the Fourth Labour Court, Bucaramanga. The Committee notes that, according to the company: (1) due to the employee’s misuse of his telephone, the company decided to terminate his contract; (2) despite this, the company decided to respect his trade union status and the application of due process; and (3) the proceedings at first instance are currently pending a decision in the Bucaramanga High Court.
7. 485. In the case of José Samuel Duarte Ballesteros, the Committee notes that, according to the complainant organization, he was at his workplace carrying out his normal activities and when he opened the desk drawer to take out a pen, the technical manager came up and because there was a sheet of paper with a numbers game, SUDOKU, in the desk, the manager accused the worker of an offence for which his contract of employment was suspended. The Committee notes that, according to the company, during working hours and in the course of his duties, the worker was caught in the act in activities which had nothing to do with his work and the disciplinary proceedings current at the time were applied.
8. 486. In the case of Henry Trujillo, the Committee notes that, according to the complainant organization, the company assigned him the tasks of travelling to other offices to take documents to the administrative area and open a gate to the boiler section, resulting in the worker being open to an accusation of failing in his duties of supervising and controlling the entry of vehicles loading and unloading raw materials, and that the head of human resources management notified the worker that he was prohibited from entering the boiler area and assigned the job to another worker. The Committee notes that, according to the company, his functions were changed in the light of the company’s needs and it was not true that the head of human resources management prohibited the worker from entering the boiler area in the course of his movements as indicated. The reason for asking him to stay at his post was purely and simply to ensure that the tasks for which he was hired were performed efficiently.
9. 487. In the case of Julio César Almeyda Barón, the Committee notes that, according to the complainant organization, a request for a locker, uniform and work shoes was submitted so that the worker could change his clothes to work and was refused (on two occasions). The Committee notes that, according to the company, the worker refused to use the equipment supplied and was informed that a locker was allocated for the exclusive use of the technical and store areas, because of the need of the personnel in those areas to change their work clothes.
10. 488. In the case of José Alfredo Parra Oliveros, the Committee notes that, according to the complainant organization, the company was presented with a claim requesting the granting of an employee life insurance policy to the worker José Alfredo Parra Oliveros. According to the company, the claim that a life insurance policy should be granted to one worker in particular was not valid.
11. 489. In relation to the relocation of the notice board, the Committee notes that, according to the complainant organization, the company was requested to relocate the trade union notice board, as the place where it was located intimidated the workers, as it was placed next to the offices of the company management, who drew up lists of those who came to read it and prohibited employees from seeing the content of the trade union notice board. The Committee also notes that, according to the company, the place where it is located was chosen by the workers themselves in 2005, and at no time has a list of people coming to see it been drawn up, and the installation of a second notice board was authorized but so far the workers have not made use of it.
12. 490. With regard to the “Temporing” company, the Committee notes that, according to the complainant organization, that company was contracted to carry out raids on workers’ houses, on the grounds that the social welfare coordinator did not have enough time to carry out the visits ordered by the management. Many workers, out of fear created by the company, were obliged to allow company officials into their homes to question and intimidate their families, take photographs, film the interior of the houses. The Committee notes that, according to the employer, the “Temporing” company was hired to support payroll processes and staff could allow or refuse the company visit and that their decision was respected.
13. 491. In relation to the allegation that the company terrorized workers with the sale of the shares of the company “Arroz Diana”, the Committee notes that, according to the complainant organization, the company began to notify the supposed termination of the contracts of employment of those working in the company, as a strategy to allow the sacking not only of the workers belonging to a trade union but also to juggle the jobs of those who were still not unionized. The Committee notes that, according to the company, it had informed all the workers that there would be no changes in the production side of the company. In addition, the Committee notes that, according to the complainant organization, in response to the possible sale of shares in the company, the company FESA LTDA received a notice from its board of directors prohibiting loans to any member until May 2009 as the policies of the new owners could change the procedures for the operation of FESA LTDA; while the company indicates that FESA LTDA was a separate legal entity from the company and for that reason it did not interfere in any way in its lending policies.
14. 492. In relation to the different behaviour of the company’s managers towards members of the trade union, the Committee notes that, according to the complainant organization, the head of human resources management, representing the company, pressured the members of the SINALTRAINAL claims committee to hold the meeting without the participation of the trade union delegates and officials, while the company indicates that it had always respected the decision of its workers to join a trade union.
15. 493. Furthermore, the Committee notes that the Government indicates that the Ministry of Social Protection, through its local offices, carried out various administrative investigations, including one for alleged anti-union persecution, in which the company was exonerated in Resolution No. 593 of 2006. The Committee emphasizes, however, that the resolution predated the allegations that it has just examined.
16. 494. Noting the extensive contradictions between the statements of the complainant organization and those of the company concerning alleged acts of discrimination against trade unionists and alleged threats of imprisonment and death, the Committee requests the Government to take steps to determine the veracity of these allegations and to inform it of the results.