Allegations: The complainant organizations allege that the liquidation of a food
manufacturing company had the effect of destroying the trade union SINTRAPRICOL and of
eradicating the trade union presence in the Facatativá production plant, owned by the Polar
corporate group
- 276. The Committee examined this case at its October 2015 meeting [see
376th Report, paras 276– 300].
- 277. The complainants submitted additional information in communications
dated June and October 2016, February 2018, 12 June 2019 and 5 September 2023.
- 278. The Government sent its observations in communications dated
December 2017, 16 November 2017, 28 February 2019, 26 May 2023 and 4 January 2024.
- 279. Colombia has ratified the Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981
(No. 154).
A. Previous examination of the case
A. Previous examination of the case- 280. At its March 2015 meeting, the Committee made the following interim
recommendations on the allegations submitted by the complainants [see 376th Report,
para. 300]:
- (a) The Committee requests the Government to take the necessary
measures to ensure that, in future, the liquidation of companies involves
consultations and negotiations with the relevant trade unions.
- (b) The
Committee requests the Government to: (i) conduct, in a short space of time, an
exhaustive investigation into the possibility that the company’s dismissal of its
unionized workers, concomitant with its liquidation, was an anti-union act; and (ii)
to inform it, soon, of the results of this investigation and, if acts of anti-union
discrimination are identified, to punish these effectively and compensate the
workers appropriately.
- (c) The Committee additionally requests the
Government to keep it informed of progress in legal proceedings related to this
case.
B. The complainants’ new allegations
B. The complainants’ new allegations- 281. In their various communications, the complainants refer to the
implementation of the recommendations made by the Committee when it first examined the
case. With regard to recommendation (a) on taking measures to ensure that, in future,
the liquidation of companies involves consultations and negotiations with the relevant
trade unions, the complainants allege that this recommendation has not been implemented,
as the Government has not sought conciliation with the parties with a view to finding a
peaceful solution to the dispute.
- 282. With regard to recommendation (b) in which the Committee requested
the Government to conduct, in a short space of time, an exhaustive investigation into
the possibility that the dismissal by the company Pricol Alimentos SA (hereinafter “the
company”) of its unionized workers, concomitant with its liquidation, was an anti-union
act, the complainants indicate that the Ministry of Labour through the Territorial
Directorate of Cundinamarca conducted an administrative labour investigation
commissioned by Order No. 000006 of 12 February 2016. They claim, however, that
notwithstanding the fact that in 2010 the decisions of the Ministry of Labour concerning
the liquidation of the company did not involve investigations into the existence of acts
infringing freedom of association, the Ministry argued that it could not conduct an
exhaustive investigation into the alleged anti-union dismissals because of the non bis
in idem principle and the statute of limitations.
- 283. The complainants state that, notwithstanding the above, the
investigation proved that: (i) the company was closed and liquidated in December 2009
without the labour administration’s authorization to close as required by Colombian law;
(ii) although proceedings for judicial authorization for the dismissal of the company’s
workers who enjoyed trade union immunity were initiated, the workers were dismissed in
December 2009 without the necessary judicial authorization, which constitutes an act of
anti-union discrimination; (iii) the brands, patents and products previously
manufactured by the company are now produced by the corporate group in the same plant
and with the same equipment that was used by the liquidated company; (iv) five
non-unionized employees of the company joined the corporate group to perform the same
tasks in the plant, and had their seniority and acquired rights recognized (employer
substitution), while no unionized employees of the company were given this opportunity;
and (v) none of the 108 workers who process oats in the plant, an activity of the
defunct company continued by the corporate group, are unionized, nor are any of the
plant’s 476 current employees.
- 284. The complainants claim that the above demonstrates the anti-union
conduct of those who decided to close and liquidate the company, transferring all
production and some employees to the corporate group. Stating that the company no longer
exists after its illegal liquidation, the complainants claim that the corporate group,
which continued the company’s production in its Facatativá plant, is responsible for
restoring the rights of the workers who are members of SINTRAPRICOL (hereafter the
union).
- 285. In relation to the Ministry of Labour’s decision of 2010 denying
that the company and the corporate group formed a single business entity, the
complainants state that: (i) the Ministry wrongly considered that a single business
entity could not be declared if one of the two companies had already been liquidated;
and (ii) it therefore did not take into consideration the illegal nature of the
liquidation that took place without the administrative authorization required by law or
the fact that the corporate group took over the company’s equipment and products,
effectively merging the two structures.
- 286. In relation to the Ministry of Labour’s decision, in 2016, to close
the investigation into the alleged anti-union acts, launched earlier that year, because
the events were time-barred, the complainants allege that there is still a violation of
freedom of association, as there is still no judicial authorization for the dismissal of
the company’s workers who enjoyed trade union immunity and because members of the union
continue to be excluded from the production processes at the Facatativá plant, which are
now carried out by non-unionized workers.
- 287. The complainants lastly state that the anti-union policy of the
company, which was supposedly liquidated in 2009, is still evident in its actions to put
an end to the legal existence of the union before the courts, as it opposed the 2016
determination of the High Court of Cali in this regard.
C. The Government’s reply
C. The Government’s reply- 288. In its various communications, the Government provides information
on the three recommendations made by the Committee when it first examined the case. With
regard to recommendation (a), the Government states that: (i) as the consultations and
negotiations referred to in the recommendation do not apply to the facts of the present
case but to future cases of liquidation, it was not for the Government to bring the
trade union and the company together to enter into negotiations or seek conciliation;
and (ii) it complied with this recommendation by forwarding it, in File No. 245356 of 22
December 2015, to the Inspection, Oversight, Control and Territorial Management
Directorate of the Ministry of Labour, which is responsible for guiding, coordinating
and directing the plans for prevention and oversight in labour legislation.
- 289. With regard to the Committee’s request for the Ministry of Labour to
conduct an exhaustive investigation into the possibility that the company’s dismissal of
its unionized workers was an anti-union act, the Government states that on 26 February
2016, the Group on Prevention, Inspection, Oversight and Control – Dispute Settlement
and Conciliations of the Territorial Directorate of Cundinamarca ordered a preliminary
investigation to be conducted at the company (Facatativá plant) on 8 March 2016,
including a general visit, as well as the verification of the following three points:
(i) whether the productive activities undertaken by the company prior to its liquidation
continued at the Facatativá plant; (ii) whether these activities were transferred to
other establishments owned by the corporate group under which the company operated; and
(iii) whether non-unionized company workers were maintained in employment by companies
forming part of the corporate group The Government indicates that the above-mentioned
visit took place and that the president of the union and a representative of the
corporate group were interviewed on 26 March 2016, as well as several witnesses
identified by the trade union during the month of April.
- 290. The Government also reports that on 14 September 2016, the
Territorial Directorate of Cundinamarca decided to shelve the preliminary investigation
and that this decision gave rise to a motion to set it aside and an appeal by the
General Confederation of Labour (CGT), which were rejected on 23 November 2016 and 29
June 2017, respectively.
- 291. In its communication of 16 November 2017, the Government provides
details on the content of the preliminary investigation and the decision to shelve the
case. The Government points out that: (i) the decision to shelve the case, based on
section 52 of Act No. 1437 of 2011, is a result of the statute of limitations, as the
events under examination occurred more than three years before the initiation of the
investigation, making it impossible to initiate administrative proceedings to impose
penalties; (ii) the Ministry of Labour is thus complying with the rules of due process,
as enshrined in the Constitution; and (iii) notwithstanding the above, in accordance
with section 486 of the Substantive Labour Code, the courts may examine any issues
involving termination of employment contracts, reinstatement and payment of wages that
may arise.
- 292. In its communication, the Government includes the text of the
decision of 14 September 2016 of the Territorial Directorate of Cundinamarca of the
Ministry of Labour to shelve the preliminary investigation, which contains a detailed
description of the findings of the labour inspectorate during its investigation, as well
as the texts of the decisions rejecting the appeals filed by the CGT in response to the
shelving.
- 293. The above-mentioned decision of 14 March 2016 of the Territorial
Directorate of Cundinamarca describes the findings of the preliminary investigation,
which took into consideration the three points that were highlighted in the Committee’s
conclusions. It states that: (i) the corporate group continues to operate in the
Facatativá plant where the company operated; (ii) according to interviewed
representatives of the corporate group, there has never been a trade union in the group,
but there has been a collective accord (which, under Colombian legislation, is an
agreement with non-unionized workers) for approximately 19 years; (iii) with respect to
the relationship between the company and the group, the representatives stated that the
company operated independently but that the group managed the company under a service
contract; (iv) the company experienced economic difficulties that led to its liquidation
and the termination of the service contract; (v) the company’s activities, particularly
oat production, resumed at the plant following its liquidation and were not transferred
to any other company; (vi) five or six non-unionized employees of the company continued
to work in the corporate group because of their excellent performance; (vii) there was
no need to hire unionized workers, as the positions in which workers were transferred
were of an administrative nature; (viii) according to two employees of the group who are
members of the collective accord committee, roughly 25 people in the plant previously
worked for the company; (ix) another representative of the corporate group interviewed
below specified that the group leased the land where the Facatativá plant is located to
the company and that the group provided the company with administrative and logistical
support, as well as support in oat production, under a service contract; (x) the
liquidation of the company was solely due to economic reasons that were unrelated to
trade union issues; and (xi) between 2007 and 2009, with the agreement of the workers
concerned, several employment contracts were transferred from the company to the
corporate group, but this did not constitute employer substitution.
- 294. The Territorial Directorate considered that the above demonstrated
that: (i) the company applied to the courts for permission to dismiss the workers who
had trade union immunity; however, the decision to liquidate the company and the
unilateral termination of the employment contracts took place prior to the court’s
decision, which is why the union representative opposed the granting of authorization;
(ii) the company and the corporate group concluded a service contract, under which the
group provided the company with administrative and logistical support while the company
sold its products to the group; (iii) the group continues to produce oats at the plant
that were previously produced by the liquidated company; this production was not
transferred to any other company; (iv) some non-unionized employees of the company were
transferred to the group because of their excellent performance; and (v) there was no
need to hire unionized workers, as the positions in which workers were transferred were
of an administrative nature.
- 295. The decisions rejecting the administrative appeals filed by the CGT
against the decision to shelve the case state that: (i) following the liquidation of the
company, the applications for judicial authorization of the union officials’ immunity
were turned down due to the lack of respondent, as requested by the workers themselves;
(ii) for the same reason (the liquidation), the labour administration did not consider
that the company and the corporate group formed a single business entity; (iii) the
labour administration notes that, at the time of liquidation, the company’s shareholders
were paid through the transfer of brands, such as the one for its oat production, which
indicates that there was no employer succession from the company to the corporate group;
(iv) between 2007 and 2009, several employment contracts were transferred from the
company to the corporate group with the consent of the workers concerned, with the
agreement stating that “the parties declare that this agreement does not constitute
employer substitution; however, as there is no break in service, the employment contract
shall continue to be considered a single contract and the worker’s initial seniority
shall be respected”; and (v) it is clear from all of the above that the events under
investigation occurred between 2008 and 2010 and are thus time-barred under the
law.
- 296. In its communications of 16 November 2017 and February 2019, the
Government refers to the observations of the company, which states that: (i) it fully
cooperated with the preliminary investigation conducted by the Ministry of Labour; (ii)
the decision to shelve the preliminary investigation was due not only to the application
of the non bis in idem principle in relation to the 2010 decision of the labour
administration on the absence of a single business entity, but also to the absence of
any finding of anti-union conduct in the company’s liquidation process; and (iii) the
right to due process, which is protected by the non bis in idem principle, is a
fundamental right protected by the Constitution.
- 297. In its various communications, particularly those dated 26 May 2023
and 4 January 2024, the Government provides information on the outcome of various
judicial proceedings relating to the facts of the present case, sending the texts of
several cassation judgments as annexes. The Government points out that: (i) in seven
ordinary labour proceedings initiated by former employees of the company against the
company and/or the corporate group with a view to their reinstatement, the claims of the
workers were rejected at first instance in six of the seven proceedings, and at second
instance and at cassation in all the proceedings; (ii) the request to dissolve the union
submitted by the company, while accepted at first instance, was rejected on 5 April 2017
by the Labour Chamber of the High Court of Cali, which found that the plea of lack of
cause to bring an action was proven; and (iii) final judgments were handed down in all
the aforementioned cases.
D. The Committee’s conclusions
D. The Committee’s conclusions- 298. The Committee recalls that the present case concerns the liquidation
and closure in December 2009 of a company in the agri-food sector operating in a plant
located in the city of Facatativá and the complainants’ allegation that the purpose of
the liquidation was to put an end to the trade union presence in the plant, which
continued to be used by a group in the sector linked to the company. When it first
examined the case, the Committee found that the closure of the company had taken place
without prior consultation of the trade union, without authorization from the labour
administration, and that the dismissals of 14 employees of the company with trade union
immunity had taken place without judicial authorization. After recalling the importance
of the liquidation and closure of companies being preceded by consultations and
negotiations with the relevant trade unions, the Committee requested the Government to
conduct an exhaustive examination into the allegation that the company’s dismissal of
its unionized workers was an anti-union act, and to inform it of the legal proceedings
under way.
- 299. With regard to its recommendation (a), the Committee recalls and
clarifies that it recommended that the Government take measures to ensure that, in
future, the liquidation of companies involves prior consultations and negotiations with
the relevant trade unions. The Committee notes the Government’s indication that the
recommendation was forwarded, in File No. 245356 of 22 December 2015, to the Inspection,
Oversight, Control and Territorial Management Directorate of the Ministry of Labour,
which is responsible for guiding, coordinating and directing the plans for prevention
and oversight in labour legislation. The Committee hopes that the forwarding of this
communication will suffice to ensure lasting compliance with this recommendation.
- 300. With regard to its recommendation (b) requesting the Government to
conduct, in a short space of time, an exhaustive investigation into the possibility that
the company’s dismissal of its unionized workers, concomitant with its liquidation, was
an anti-union act, the Committee notes that the Government, the company and the
complainants agree that: (i) the labour inspectorate conducted a preliminary
investigation at the Facatativá plant in March 2016; (ii) the preliminary investigation
was able to collect information on several points, particularly those specifically
highlighted in the Committee’s conclusions (whether the productive activities carried
out by the company prior to its liquidation continued at the Facatativá plant, whether
these activities were transferred to other establishments owned by the corporate group
under which the company operated and whether non-unionized company workers were
maintained in employment by companies forming part of the corporate group); (iii) on 14
March 2016, the inspectorate decided to shelve the case on the grounds that: on the one
hand, the labour administration had already determined in 2010 that a single business
entity could not be formed by a company that had already been liquidated and the
corporate group, and that, in this respect, the non bis in idem principle should be
respected; and on the other hand, administrative proceedings to impose penalties could
not be initiated because the events under investigation dated back to 2008 and 2009 and
were therefore time-barred in accordance with Act No. 1437 of 2011; and (iv) the
administrative appeals filed by the CGT against the decision to shelve the case were
rejected.
- 301. The Committee notes that the complainants disagree with the decision
to close the case. The complainants allege in this regard that the labour administration
did not take into consideration: (i) the fact that in 2010, the Ministry of Labour did
not investigate the existence of acts infringing freedom of association; (ii) the
illegal nature of the closure of the enterprise, which was carried out without the
administrative authorization required by law; (iii) the information gathered by the
labour inspectorate during the preliminary investigation that demonstrates the
anti-union nature of the liquidation and closure of the company, the activities of which
continued at the Facatativá plant by the corporate group using non-unionized workers;
and (iv) the ongoing violation of the freedom of association of the workers who were
unfairly dismissed in December 2009.
- 302. The Committee also notes the company’s reply, forwarded by the
Government, in which it states that the decision of the labour administration to shelve
the preliminary investigation was based not only on the application of the non bis in
idem principle (in relation to the 2010 decision of the labour administration on the
absence of a single business entity) but also on the absence of any finding of
anti-union conduct in the company’s liquidation process.
- 303. The Committee lastly notes the information provided by the
Government concerning the outcome of various judicial proceedings relating to the facts
of the present case. The Government points out that: (i) in seven ordinary labour
proceedings initiated by former employees of the company against the company and/or the
corporate group with a view their reinstatement, the claims of the workers were rejected
at first instance in six of the seven proceedings, and at second instance and at
cassation in all the proceedings; and (ii) the request to dissolve the union submitted
by the company, while accepted at first instance, was rejected on 5 April 2017 by the
Labour Chamber of the High Court of Cali.
- 304. The Committee takes due note of the administrative and judicial
decisions adopted since its previous examination of the case, as well as the texts of
those decisions, which were provided by the Government. With regard to the action taken
by the labour administration since its previous examination of the case, the Committee
notes that the preliminary investigation conducted at the Facatativá plant in March 2016
revealed that: (i) prior to the liquidation, the company and the corporate group signed
a lease and a service contract, under which the group provided the company with
administrative and logistical support while the company sold its products to the group;
(ii) the group continues to produce oats at the plant that were previously produced by
the liquidated company; this production was not transferred to another plant; (iii)
between 2007 and 2009, the contracts of some non-unionized workers were transferred from
the company to the corporate group with the consent of the workers concerned, with the
agreement stating that “the parties declare that this agreement does not constitute
employer substitution; however, as there is no break in service, the employment contract
shall continue to be considered a single contract and the worker’s initial seniority
shall be respected”; (iv) there was no need to hire unionized workers, as administrative
positions were moved; and (v) according to interviewed representatives of the corporate
group, there has never been a trade union in the group, but there is a collective
agreement (under Colombian legislation, a collective agreement is an agreement between
an employer and a group of non-unionized workers).
- 305. With regard to the various judgments of the Labour Chamber of the
Supreme Court, annexed by the Government, which rejected, in final judgments, the
applications – to the liquidated company, to its procedural successors and to the
corporate group – for the reinstatement of several employees of the company who were
dismissed when the company was liquidated, the Committee notes that these judgments show
that: (i) while the unjustified nature of the dismissal of several of the applicants was
recognized due to the absence of administrative authorization prior to the closure of
the company, their right to reinstatement in the corporate group was not recognized on
the grounds that the company and the corporate group did not constitute a single
business entity within the meaning of section 194 of the Substantive Labour Code; (ii)
in this respect, although a number of direct and indirect links, both operational (a
lease and a service contract prior to the liquidation; transfer of brands and production
equipment after the liquidation) and corporate (particularly the fact that, six months
after the liquidation, the main shareholder of the liquidated company acquired 40 per
cent of the group’s shares), were found to exist between the two entities, there was no
evidence of economic predominance of one entity over the other (control of more than 50
per cent of the capital according to case law), which is the main criterion for a single
business entity according to section 194 of the Substantive Labour Code; and (iii) for
procedural reasons specific to the appeal on a point of law, the Supreme Court did not
rule on the absence of judicial authorization prior to the dismissal of the workers who
had trade union immunity, as the High Court had not ruled on the matter either, an
omission that the applicants would have had to challenge before the High Court itself
and not by means of an appeal on a point of law.
- 306. The Committee takes note of the content of these administrative and
judicial decisions, particularly the fact that these bodies found that the criteria of
the legal categories established by the Substantive Labour Code, which would have
entailed the transfer of the company’s employment contracts to the group after the
liquidation of the company, had not been met. The Committee also notes with regret that,
despite the recommendation it made when it first examined the case and the preliminary
investigation conducted by the labour administration, the competent bodies did not rule
on whether or not the liquidation of the company gave rise to acts aimed at eliminating
the trade union presence at the Facatativá plant and, in particular, did not determine
whether or not the unionized workers who were dismissed in December 2009 were the object
of anti-union discrimination, even though the productive activity that they performed
was continued by non-unionized workers.
- 307. The Committee once again recalls in this regard that where cases of
alleged anti-union discrimination are involved, the competent authorities dealing with
labour issues should begin an inquiry immediately and take suitable measures to remedy
any effects of anti-union discrimination brought to their attention [see Compilation of
decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1159].
The Committee also recalls, as it did when it first examined the case, that the
liquidation of a company and the fact that the legal person under which the company
operated has ceased to exist should not be used as a pretext for anti-union
discrimination nor should they be an obstacle to the competent authorities determining
whether or not there were acts of anti-union discrimination and, if such practices are
shown to have taken place, to sanctioning such illegal acts and ensuring that the
affected workers are duly compensated [see Compilation, para. 1115]. In the light of the
above, the Committee requests the Government to examine with the social partners the
necessary measures to strengthen the mechanisms for protecting freedom of association in
the event of liquidation of companies. The Committee requests the Government to keep it
informed in this regard.
The Committee’s recommendation
The Committee’s recommendation- 308. In the light of its foregoing conclusions, the Committee requests
the Governing Body to approve the following recommendations:
-
The Committee requests the Government to examine with the social
partners the necessary measures to strengthen the mechanisms for protecting freedom of
association in the event of liquidation of companies. The Committee requests the
Government to keep it informed in this regard.