Informe definitivo - Informe núm. 389, Junio 2019

1. 297. The complaint is contained in two communications from the National Union of Mining, Petrochemical, Bio-Diesel Fuels and Energy Industry Workers (SINTRAMIENERGETICA) and the National Union of Workers in the Metal Engineering, Machinery, Metallurgical and Railways Industry and in the Allied Marketing and Transport Sector (SINTRAIME), dated 13 November 2010 and November 2010 respectively.
2. 298. The Government sent its observations in communications dated 18 April 2011, 18 February 2013, and 5 and 12 February 2019.
3. 299. 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. 300. In its communication of November 2010, SINTRAIME alleges violations of freedom of association and collective bargaining by the enterprises Ingeniería Mafylm E.U. (hereinafter Enterprise A), Ferrocarriles del Norte de Colombia S.A. (hereinafter Enterprise B) and Cables de Energía y Telecomunicaciones S.A. (hereinafter Enterprise C). In addition, in a communication dated 13 November 2010, SINTRAMIENERGETICA alleges violations of trade union rights and collective bargaining by the enterprises Carbones de la Jagua S.A. (hereinafter Enterprise D) and Consorcio Minero del Cesar (hereinafter Enterprise E).
2. 301. With regard to Enterprise A, SINTRAIME states that, on 16 May 2008, 26 of the enterprise’s workers, who were members of SINTRAIME, held an assembly, established a SINTRAIME office in Chiriguaná in the department of Cesar and elected an executive board, which was subsequently entered in the register. It alleges that, on 19 May, a list of demands was presented that had been approved at the assembly and, in response, the enterprise dismissed ten unionized workers, including two union officials. It also alleges that, demonstrating that the enterprise intended to close down the newly established trade union, the enterprise filed an appeal against the decision containing the order to register the executive board. The complainant states that the territorial directorate of the Ministry of Health and Social Protection in Cesar withdrew the registration of the executive board, in violation of Constitutional Court Decision No. C-465 of 14 May 2008, according to which employers are not allowed to file such appeals and officials are not allowed to process these appeals through administrative channels and are especially not allowed to withdraw the registration of an executive board. The complainant states that such cases have to be handled by the ordinary courts and not by the administration.
3. 302. With regard to Enterprise B, SINTRAIME alleges that, on 4 November 2008, it established the Santa Marta office, which presented a list of demands, following which the enterprise dismissed unionized workers, which led the union branch in Santa Marta to carry out a collective work stoppage from 23 March to 19 April 2009, the date when the workers were abruptly removed by the security forces. It also alleges that, between 28 May and 24 September 2009, the enterprise dismissed 33 workers and cut ties with the executive board, as a result of which several actions have been filed at the judicial and administrative levels.
4. 303. With regard to Enterprise C, SINTRAIME alleges that the enterprise shut down some of its departments with a view to eliminating permanent work contracts in favour of recruitment through the labour intermediation model known as the associated labour cooperative with contracts of a few months’ duration, in order to disregard labour rights acquired over many years. It also alleges that, as a result of the workers’ refusal to avail themselves of the cooperatives, on 4 October 2010 the enterprise dismissed 70 workers and, through so-called voluntary arrangements, laid off more than 150 workers.
5. 304. With regard to Enterprise D, SINTRAMIENERGETICA states that, on 27 April 2009, the president of the Jagua de Ibérico branch of SINTRAMIENERGETICA filed an administrative complaint against the enterprise for violating the collective agreement and that, by a decision dated 16 December 2009, the enterprise was issued with a fine for breach of the agreement. It also states that the enterprise filed an appeal in this regard and called on the union president several times between 2009 and 2010 to answer to charges, accusing him of dangerous behaviour, sabotage and verbal aggression, for which he was suspended for eight days.
6. 305. With regard to Enterprise E, SINTRAMIENERGETICA states that, on 14 April 2010, the president of the Becerril branch of SINTRAMIENERGETICA filed an administrative labour complaint with the Ministry of Health and Social Protection for harassment of union members and union officials and for breach of the collective labour agreement signed in 2008. It alleges that the enterprise prevented union leaders from accessing the mine’s facilities while they were not on their shift and harassed the workers, especially union members, into accepting voluntary retirement (requiring them to withdraw any judicial or administrative complaint against the enterprise), causing 30 workers to leave and requesting authorization from the Ministry of Health and Social Protection to dismiss more than 140 workers.

B. The Government’s reply

1. 306. In its communication dated 18 April 2011, the Government states that the allegations concerning Enterprise B are being examined by the Committee under Case No. 2710 and also that it is gathering information on the other enterprises, in relation to which the allegations were of a general nature and imprecise.
2. 307. In its communication dated 18 February 2013, the Government sends its observations on Enterprises A and C. With regard to Enterprise A, the Government states that: (i) the Chiriguaná Labour Inspectorate ordered the inclusion in the union register of the executive board of SINTRAIME’s branch in Chiriguaná, in the department of Cesar, considering that the application was in accordance with the provisions of the law; (ii) once the parties had been notified, the enterprise filed an appeal against the administrative decision that contained the order to register the executive board; (iii) it was found that the minimum number of employees required by law had not been present at the assembly at which the executive board had been elected (the minutes of the assembly state that certain people had been present but later it was found that they had not, and that the registration had been made with false statements); and (iv) consequently, the Valledupar branch of the Ministry of Health and Social Protection cancelled the decision containing the order to register SINTRAIME’s executive board at the Chiriguaná branch (this, however, did not affect the establishment by SINTRAIME of a union branch in Chiriguaná). The Government also reports that the complainant filed an administrative complaint concerning the enterprise’s refusal to negotiate the list of demands that was presented to it and that, although in the first instance the enterprise was sanctioned for having refused to enter into talks on the list of demands, the enterprise appealed against that decision, which was later overturned on the grounds that the list of demands had been presented by the executive board, whose registration had been withdrawn. As for the alleged dismissals, the Government has provided a copy of the court decisions in which the labour courts dismissed the applications for reinstatement.
3. 308. Regarding Enterprise C, the enterprise states that the trade union organization has always been accepted and that it has a collective labour agreement with it that dates back many years. The enterprise states that none of the enterprise’s departments have been shut down and that it does not have a relationship with any associated labour cooperative. It states that some workers availed themselves of a voluntary retirement plan offered by the enterprise after it restructured the commercial area and that other workers were dismissed by a unilateral decision of the enterprise, but in no cases were the dismissals carried out on the grounds that the workers had links to the trade union. The enterprise denies having dismissed more than 150 workers in the last ten years and states in this respect that the complainant did not present any letters of termination or provide the names of the persons who were allegedly dismissed. In relation to the alleged transfers and dismissals, the Government has provided a copy of an inspection report dated 22 February 2011, carried out as a result of a complaint filed by the complainant concerning a collective dismissal and violation of the collective agreement. In the inspection report, it is concluded that: (i) there was no violation whatsoever of the collective agreement; and (ii) although between May and October 2010 the enterprise unilaterally terminated 40 contracts and 52 workers handed in their notice of voluntary resignation, a collective dismissal cannot be considered to have taken place as in May 2010 a total of 686 workers were employed by the enterprise.
4. 309. In its communications of 5 and 12 February 2019, the Government sends its observations on Enterprises D and E as well as the observations of the enterprises themselves. With regard to Enterprise D, the enterprise indicates that 215 out of a total of 264 workers are members of SINTRAMIENERGETICA, which accounts for 81.5 per cent of union membership, and states that collective bargaining is carried out periodically with the union. The last round of bargaining was held in 2016, during which a collective agreement was reached that will be in force until April 2023. It also states, in relation to the two administrative complaints filed by the union, that although the enterprise was sanctioned, it filed an appeal against the decisions, which were overturned.
5. 310. As for Enterprise E, the enterprise states that it has always been respectful of the rights of its workers and that, although it is accused in the complaint of exercising some type of harassment against unionized workers, the Ministry of Labour, upon hearing the complaints filed against the enterprise, conducted the relevant administrative investigations, finding that there was in no way any violation by the enterprise of the labour rights of its workers, especially the right to freedom of association. The Government has attached to its reply a copy of Decision No. 07 of 18 August 2010, in which the Labour Inspectorate concluded that there was no pressure or harassment at the workplace by the enterprise and that all the retirements were voluntary and were carried out through conciliation agreements under the auspices of the Ministry.

C. The Committee’s conclusions

1. 311. The Committee notes that, in the present case, the complainants allege a series of anti-union acts in relation to five enterprises in various sectors. According to the Government, these acts, which include dismissals, harassment and the violation of collective labour agreements, have been the subject of administrative complaints and legal proceedings, in relation to which final decisions have been handed down.
2. 312. With regard to Enterprise A and the allegation concerning the cancellation through an administrative procedure of the registration of the executive board of SINTRAIME’s branch in Chiriguaná, in the department of Cesar, the enterprise’s refusal to negotiate a list of demands and anti-union dismissals, the Committee notes that the Government states that: (i) the registration of the executive board was cancelled because, following an appeal filed by the enterprise, it was found that there had not been at least 25 members as is required by law present at the assembly at which the executive board had been elected (while it appeared that 26 people had participated in the assembly, it was found, through statements, that at least three of them had not been present); (ii) it was not the responsibility of the enterprise to negotiate a list of demands presented by the executive board, whose registration was withdrawn; and (iii) in the legal proceedings related to the dismissals, the labour courts dismissed the applications for reinstatement.
3. 313. The Committee notes that the cancellation through an administrative procedure of the registration of the executive board of SINTRAIME’s branch in Chiriguaná, in the department of Cesar, meant that, in fact, that branch was unable to negotiate the list of demands and represent the interests of its members. The Committee also notes that Decision No. C-465 of 14 May 2008 of the Constitutional Court states that the administration cannot refuse to register members of an executive board who have been appointed in compliance with the legal requirements and that, if the Ministry or the employer consider that there are grounds to reject the registration, they must bring the case before the courts, which shall rule on the matter. Although it is not clear from the complaint or from the Government’s reply whether the complainant organization has initiated legal proceedings in this regard, given the time that has elapsed and in the absence of new information from the complainant, the Committee trusts that, in the light of the Constitutional Court’s decision, the aforementioned principle has been fully applied in the national legal order.
4. 314. With respect to Enterprise B, the Committee notes that the allegations are being examined by the Committee under follow-up Case No. 2710 and therefore it refers to the recommendations made during its last examination of the case, at its June 2017 meeting [see 382nd Report, paras 27–29].
5. 315. With regard to Enterprise C and the allegation that, after shutting down some of its departments, the enterprise dismissed the workers who did not agree to work through an associated work cooperative and laid off more than 150 workers through arrangements, the Committee notes that the enterprise states that none of its departments have been shut down and that, after its restructuring of the commercial area, 38 out of a total of 47 workers in that area availed themselves of a voluntary retirement plan and another 40 workers of the enterprise (out of a total of 686) were dismissed by a unilateral decision of the enterprise, but in no cases were the dismissals carried out on the grounds that the workers had links to the trade union. The Committee also notes that the report of an inspection conducted at the enterprise concluded that the enterprise had not violated the collective agreement and that a collective dismissal had not taken place. Moreover, taking into account that neither in the complaint nor in the claims that led to the inspection does the complainant allege that the workers were dismissed on account of their union membership or for conducting legitimate trade union activities, the Committee will not pursue its examination of this allegation.
6. 316. With regard to Enterprise D and the allegation that, after a fine had been imposed on the enterprise following an administrative complaint filed by the union for violation of the collective agreement, the enterprise accused the union president of dangerous behaviour and suspended him for eight days, the Committee notes that the enterprise states that 215 out of a total of 264 workers are members of SINTRAMIENERGETICA and that collective bargaining with this union is held periodically, and that the latest collective agreement was signed in 2016 and will be in force until 2023. Regarding the administrative complaints filed by the union, the Committee notes that, according to the enterprise, the enterprise filed an appeal against the decisions imposing sanctions and these decisions were overturned. In the light of the foregoing, the Committee will not pursue its examination of this allegation.
7. 317. In relation to Enterprise E and the allegation concerning the harassment of members and officials into accepting voluntary retirement and the breach of the collective labour agreement, the Committee notes that, according to the enterprise, the Ministry of Labour conducted the relevant administrative investigations, finding that there was no violation whatsoever by the enterprise of the labour rights of its workers, especially the right to freedom of association. The Committee notes that the Government has attached to its reply a copy of Decision No. 07 of 18 August 2010, in which the Labour Inspectorate concluded that there was no pressure or harassment at the workplace by the enterprise and that all the retirements were voluntary and were carried out through conciliation agreements under the auspices of the Ministry. Noting that neither the complaint nor the Government’s reply indicate whether the complainant has filed an appeal against that decision, the Committee will not pursue its examination of the allegations relating to this enterprise.