Rapport définitif - Rapport No. 277, Mars 1991

1. 19. The complaints are contained in communications of the General Confederation of Labour (CGT) and the World Confederation of Labour (WCL) dated 21 February and 21 March 1990, respectively. The Latin American Central of Workers (CLAT) sent a communication dated 5 April 1990 in support of these complaints. The Government sent its reply in a communication dated April 1990 which, in accordance with the Committee's procedure, was transmitted by the Office to the complainant organisations because the allegations and the Government's reply contradicted one another (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 49 and 50). The Government subsequently sent a further communication dated 14 May 1990, reiterating the observations contained in its previous communication. The WCL sent its comments on the Government's observations in communications dated 16 August and 20 September 1990. The Government sent a further reply in a communication dated 31 October 1990.
2. 20. 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 complainants' allegations

1. 21. The complainants allege that at a general meeting held on 4 November 1989 the Workers' Union of the Manufacturas Piltex enterprise (SINTRAPILTEX) approved a list of claims with a view to signing a new collective agreement and appointed the bargaining committee for this purpose. The trade unionist, María del Carmen Ramírez, who took part in drawing up the list of claims, was dismissed.
2. 22. The complainants add that in this context, the Manufacturas Piltex enterprise, with the collusion of officers of the Cundinamarca Workers' Union (UTRACUN) and with the aim of ignoring the decisions of the above-mentioned general meeting, allowed Mr. Alvaro Herrera (an officer of UTRACUN) to enter the enterprise during working hours in December 1989 in order to demand using a megaphone that another so-called meeting be held, which was finally done on the enterprise's premises on 9 December 1989. At this so-called meeting, with the sole support of one Vice-Chairperson of the trade union (Mrs. Rosa Elvira Herrera), the members of the bargaining committee were replaced; they then proceeded to negotiate and sign (on 22 December 1990) a collective agreement of boundless corruption and immorality. For example, payment of certain non-statutory benefits (such as Christmas and vacation bonus) was made conditional upon the trade union's affiliation to UTRACUN; in particular, the bonus clause states that "these bonuses will be paid if the trade union is affiliated to UTRACUN". In addition, the above-mentioned so-called general meeting disaffiliated the trade union from the General Confederation of Labour and ratified its affiliation to UTRACUN (an organisation which had been expelled from the General Confederation of Labour for manoeuvring in favour of employers). In view of the unlawful nature of the so-called assembly of 9 December 1989 (the date on which the lawful executive committee had planned its general meeting elsewhere), the lawful committee contested it on 12 December 1989 before the Ministry of Labour, which has not issued a ruling to date.
3. 23. According to the complainants, the lawful executive committee planned a general meeting for 22 February 1990, but as was to be expected, the enterprise, the confederation UTRACUN and the Vice-Chairperson Rosa Elvira Herrera sabotaged the meeting by planning another one on 24 February at the UTRACUN headquarters, at which the lawful executive committee was taken by surprise, two inspectors from the Ministry of Labour were refused entry, and the chairperson, general secretary and treasurer of the organisation expelled without being given the opportunity to explain themselves (Mrs. Ana Tulia Gutiérrez, Rosa Irene López and María del Carmen Castro de Reyes, respectively). In addition, 46 new members were admitted contrary to the union's rules, and a new executive committee was appointed without the previous one having completed its term of office, which was one year. In these circumstances, the lawful executive committee, legally registered and recognised by the Ministry of Labour, contested this meeting. The inspectorate which was to register the new executive committee decided in the first instance not to register it; that committee therefore appealed and the case is now in progress. None the less, as of March 1990, the enterprise granted trade union leave to all of the members of the unlawful executive committee and dismissed the following trade unionists as part of the trade union persecution referred to above: María del Carmen Ramírez Calderón (31 October 1989), Marlen Campos Cano (18 November 1989), Adela Castro Chauta (24 November 1989), Miryam Elsa Rativa and Blanca Sofía Mora Guerrero (18 November 1989). In addition, Ana Tulia Gutiérrez and Rosa Irene López Letrado (Chairperson and General Secretary, respectively) were dismissed in March 1990 after refusing to sign a letter of voluntary resignation demanded by the enterprise. Lastly, the trade union dues deducted under the check-off system are now being paid to the unlawful executive committee.
4. 24. The complainant organisations allege further that for the last five years, the Nylon Van Raalte Textile Workers' Union has been subjected to the most ignominious persecution, in the form of dismissals of workers, violation and disregard of the collective labour agreement, the setting up of a parallel trade union to divide the workers and the imposition of a regime of constant terror on those persons who have kept their dignity, maintaining a consistent position in the trade union. One trade unionist has not been allowed to work for over four years. Her only "crime" has been her courageous defence of workers' rights and her constant struggle to maintain a genuine trade union.

B. The Government's reply

1. 25. The Government states that in December 1989, the executive committee of the CGT presented a complaint to the Colombian authorities similar to that sent to the Committee on Freedom of Association. The labour inspectorate took the appropriate steps, of which the following should be highlighted: (1) in March 1990 the members of the executive committee of SINTRAPILTEX dissociated themselves in writing from the complaints presented by the executive committee of the CGT and the other executive committee allegedly affected; this communication was backed by the signature of 148 members of SINTRAPILTEX; (2) not having ascertained any violation of the clauses of the current collective agreement, the labour inspectorate refrained from adopting punitive labour law measures against the Piltex enterprise and did not consider the CGT's complaints to refer to violations of freedom of association.
2. 26. The Government adds that on 12 December 1989 Mrs. Ana Tulia Gutiérrez Gómez, in her capacity as chairperson of the trade union, contested the decisions adopted at the meeting held on 9 December 1989 for the same reasons as those cited by the CGT. She requested the Ministry to declare null and void everything which had taken place on 9 December, to recognise the decisions adopted at the meeting of 4 November 1989 as the workers' sole legitimate instrument, and to compel the Manufacturas Piltex SA enterprise to negotiate the list of demands presented by the trade union with the bargaining committee elected at the meeting of 4 November 1989. This investigation was carried out by the labour inspectorate in order to elucidate the facts referred to in the complaint. The investigation was opened by a resolution of September 1990; it should be pointed out that the labour inspectorate had already carried out an investigation regarding an alleged refusal to bargain (following a complaint lodged against the enterprise by SINTRAPILTEX) and that the case had been closed in March 1990, as the inspectorate had been presented with an authentic record of the opening of talks as part of the planned bargaining process, and it had subsequently been established that the signed collective agreement had been legally deposited with the Ministry. The investigation concluded that the general meeting of workers of Manufacturas Piltex SA held on 9 December 1989 was in conformity with the law and the trade union's by-laws.
3. 27. The Government adds that on 2 March 1990 the Ministry of Labour was requested to register a new trade union executive committee elected at the general meeting held on 24 February 1990; the application was referred to the labour inspectorate; written contestations were also presented, and the facts referred to in them were investigated; the investigation was completed in July 1990. The Ministry refrained from registering the executive committee because one of the requirements laid down in section 11(c) of Decree No. 1469 of 1978 had not yet been met; upon a second application, the earlier decision was revoked in October 1990 and registration of the new executive committee of the trade union organisation "SINTRAPILTEX", elected at the meeting held on 24 February this year, was ordered.
4. 28. The Government states that it is clear from all of the proceedings that have taken place that a struggle is being waged between the General Confederation of Labour (CGT) and the Cundinamarca Workers' Union (UTRACUN) over the eventual affiliation of SINTRAPILTEX. This has resulted in a division within the SINTRAPILTEX union itself, each faction being supported by one of these central organisations. Moreover, it is essential to point out that it is not for the Ministry of Labour to declare instruments reflecting decisions taken by trade union organisations lawful or unlawful, since it is only the trade union's highest executive body, namely the general meeting with the quorum required by the law and the union's own rules, which can declare its decisions valid or invalid. In each of the investigations carried out by the inspectors, documents have been presented, signed by a total of 148 members of the trade union organisation and refuting the complaints made by the complainant, which had always been the CGT and some members of the former executive committee.
5. 29. As regards the dismissals in the Manufacturas Piltex SA enterprise, the Government states that investigations have confirmed five cases of unilateral termination without just cause (from 31 October 1989 to 21 February 1990) and two cases of unilateral termination with just cause (from 5 to 10 March 1990). The legislation relating to protection in the event of collective dismissals provides that an employer intending to carry out such dismissals must obtain authorisation from the Ministry of Labour in the case of dismissal without just cause. As regards the five terminations without just cause in this enterprise, they occurred over a period of 110 days, out of a total of approximately 290 workers employed in the enterprise. A collective dismissal in violation of the labour law is considered to be one carried out by an employer without the authorisation of the Ministry, on one day or successively, but with brief intervals in order to evade authorisation; in the case under consideration the terminations occurred as follows: one on 31 October, two on 17 November, one on 23 November and one on 21 February 1990. By a resolution of 29 June 1990, the Ministry of Labour ruled that these facts did not constitute collective dismissal and afforded the opportunity for an administrative appeal, which was not used, and therefore it was ordered that the case be closed on 12 July 1990.
6. 30. As regards the allegations of trade union persecution of the members of the Nylon Van Raalte Textile Workers' Union, the Government states that no complaint has been presented to date by that trade union to the Ministry of Labour and Social Security regarding the irregularities referred to in their complaint to the ILO. The Government states that in order to protect the right to organise, legislation and regulations have been enacted guaranteeing the right of trade union organisations at every level to function freely and independently and preventing the commission of any act in violation of this right, by adopting all of the necessary and appropriate measures to put it into effect, including the imposition of penal sanctions and fines.

C. The Committee's conclusions

1. 31. As regards the allegations concerning the Nylon Van Raalte Textile enterprise, the Committee would point out that these are extremely general allegations: although the complainant organisation referred to the dismissal of workers, the violation of the collective agreement and the setting up of a trade union parallel to the one already in existence, it has not provided precise information on the date of the dismissals, the specific reasons on which they were based or the number of persons affected, on the provisions of the collective agreement allegedly violated or on the circumstances in which a parallel trade union was allegedly set up. The Committee also observes that, according to the Government, the trade union of the enterprise referred to has not presented complaints to this effect to the Ministry of Labour. In these circumstances, taking account of the fact that the complainant organisations have been afforded the opportunity to present additional information and that the Government's reply was even sent to them for their comments, and that no comments have been received to date, the Committee considers that it is not in a position to formulate conclusions on the allegations and that it should not proceed with its examination of the case.
2. 32. As regards the allegations concerning the Manufacturas Piltex enterprise, the Committee observes that the complainant organisation acknowledges the existence of two factions within the Manufacturas Piltex Workers' Union (SINTRAPILTEX), represented by two executive committees with different positions regarding the contents of the new collective agreement and the higher-level organisation with which the trade union should be affiliated. The Committee considers that although the complainant organisation cited collusion on the part of the enterprise management in the setting up of the unlawful (according to the complainant organisation) executive committee and the signing of the new collective agreement, the issues raised in the complaint arise out of, and are essentially attributable to, the struggle between two factions of the same trade union. On previous occasions the Committee has considered that conflicts within a trade union lie outside its competence and should be resolved by the parties themselves or by recourse to the judicial authority or an independent arbitrator (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 663, 665 and 671). In the present case, the Committee must recall the principles it has expressed in the past without deciding in favour of either of trade union factions, the more so since, according to the Government's statements: (1) out of a total of approximately 290 workers employed in the Manufacturas Piltex enterprise, 148 trade union members refute the complaints presented by the complainant organisations in this case and by the executive committee which the complainants consider to be lawful; (2) the meetings called by the executive committee which the complainant organisations consider to be unlawful were in any case held with the quorum required by the law and the union's own rules.
3. 33. However, the Committee observes that the Government admits that between 31 October 1989 and 21 February 1990 there were five dismissals in the Manufacturas Piltex enterprise without a reason being given. The complainant organisation specified that during this period the trade unionists María del Carmen Ramírez Calderón, Marlen Campos Cano, Adela Castro Chauta, Myriam Elsa Rativa and Blanca Sofía Mora Guerrero were dismissed, and that subsequently, in March 1990, Ana Tulia Gutiérrez and Rosa Irene López Letrado (chairperson and general secretary of the trade union, respectively, and members of the executive committee considered to be lawful by the complainant organisation) were dismissed without a reason being given. The Committee observes that the investigations carried out by the Ministry of Labour into these dismissals did not examine whether they were based on trade union activities, but restricted themselves to noting that the periodicity of the dismissals proved that there had not been a collective dismissal.
4. 34. In this respect, the Committee would like to draw the Government's attention to the principle it has recalled on several occasions, that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is not accorded by legislation which enables employers in practice - on condition that they pay the compensation prescribed by law for cases of unjustified dismissal - to dismiss a worker if the true reason is his or her trade union membership or activities (see, for example, 211th Report, Case No. 1053 (Dominican Republic), para. 163; 241st Report, Case No. 1293 (Dominican Republic), para. 273; 254th Report, Case No. 1393 (Dominican Republic), para. 186; as well as Digest, para. 547). In these circumstances, taking account of the fact that the seven trade union leaders and trade unionists referred to by the complainant organisations were dismissed without a reason being given, since the opening of negotiations on the new collective agreement in the Manufacturas Piltex enterprise and in the context of inter-union conflict in the same enterprise, the Committee requests the Government to take steps with a view to reinstating the persons concerned in their jobs.