Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 279, Novembre 1991

1. 330. The complaint was presented in a joint communication from the Workers' Central Organisation of Colombia (CUT), the National Federation of Banking Workers' Trade Unions of Colombia (FENASIBANCOL) and the National Association of Employees of the Bank of the Republic (ANEBRE), dated 18 September 1990. The Government replied in a communication dated 9 September 1991.
2. 331. 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. 332. The complainants alleged, in their communication dated 18 September 1990, that the Bank of the Republic dismissed the following leaders of the National Association of Employees of the Bank of the Republic: Jaime Dávila Suárez (1989), Rafael Ruiz Torregloza (1987), Freddy del Valle Espinoza (1987), Humberto Ballesteros Lancheros (1987), Dagoberto Gavalo Hernández (1987), Jesús María Guzmán Sánchez (1987), Helmer E. Sánchez Castillo (1987), Offir Justinico de Escobar (1988), Elías Ruiz de la Victoria (1989), Wilmar Jiménez Rosado (1989), Rosé Rodrigo Chavéz Benavides (1989), Luis Evert Gómez Tinoco (1989), Arnoldo Chica López (1989), Mario Sandoval Rodríguez (1989), Luis Ernesto Maldonado (1989), Sor Teresa García Vda. de Ramírez (1990), Hernán Jésus Salazar Morales (1990), Jesús Alberto Rivera Jiménez (1990), Danny Esther Ayala Castro (1990), and Reinaldo Jaimes (1990).
2. 333. The complainant organisations added that the systematic, repeated, continuous and massive dismissal of the leaders was a violation of agreements on freedom of association.

B. The Government's reply

1. 334. In its communication dated 19 September 1991 the Government stated that by way of an official telegram dated 9 July 1991, signed by an official from the Division of Vigilance and Control, addressed to the chairman of the National Association of Employees of the Bank of the Republic (ANEBRE), he was requested to appear on 15 July at 9 a.m. before the Division in order to fulfil the administrative formalities regarding the complaint lodged. On 15 July 1991 a lawyer from the Division confirmed in writing that the chairman of ANEBRE did not appear at the time or on the date specified and that therefore the administrative labour proceedings had not been able to be carried out. That lawyer, in a memorandum sent to the head of the above Division, indicated that the Division had made a second appointment and that it had been possible to speak to the chairman of the trade union who agreed to present a document outlining their complaint. On 2 September 1991, the head of the Division of Vigilance and Control filed the proceedings, taking note of the report submitted by the official reflecting the trade union's knowledge of, but lack of interest in, the matter.
2. 335. Furthermore, the Government transmitted the comments of the Bank of the Republic (dated 6 December 1990) on the complaint presented to the Committee on Freedom of Association, indicating clearly that the comments were the opinion of the Bank of the Republic and not of the Government.
3. 336. In its comments regarding the complaint before the Committee, the Bank of the Republic declares that it is not part of the national Government nor of any of the branches of public authority, nor does it constitute one of the bodies of the nation's public administration. It is the Bank of issue as provided for in Colombia's national Constitution and it is a body of economic public law, is the only one of its kind and enjoys special administrative autonomy. Labour relations between the Bank of the Republic and its workers are of a contractual nature and are governed by the Labour Code, with the following particularities:
   • - The legal relationships arising from the contract of employment are determined by the standards in the Code mentioned, by the Bank's statutes, its in-house employment regulations, collective agreements and decisions taken by the board of management concerning labour matters.
   • - Given the functions of the Bank of the Republic and their incidence within the public and private economic sectors of the country, all its workers, for legal purposes, occupy positions of trust. This legal qualification covering the workers of the Bank is ratified in the in-house employment regulations and in the statutes of the institution approved by the President of the Republic of Colombia.
     • Bearing in mind that section 409 of the Labour Code provides as an exception that, among other workers and employees, those who occupy positions of trust shall not enjoy trade union immunity, the privilege of trade union immunity does not exist for the workers in the Bank of the Republic.
   • 337. The Bank of the Republic added that the termination of the employment contracts of the persons mentioned in the complaint was carried out for justified reasons solely linked to the workers' failure to comply with the rules set out in their employment contracts, the in-house employment regulations or the law. In those cases where the Bank considered that in the case of a possible trial justified reasons could be proven, they were included in the letters of dismissal. Where this was not the case, the Bank paid the corresponding compensation granted in accordance with collective agreements, this being, moreover, a clear discretional attribution granted by Colombian law to the contracting parties of an employment agreement. The Bank of the Republic went on to state succinctly the reason for the termination of each employment contract:
   • - Jaime Dávila Suárez: Due to wrongful participation in partisan politics, contrary to his contract and the employment regulations. However, on the request of the ex-worker, an employment agreement was later reached with him.
   • - Rafael Ruiz Torreglosa: Compensation granted in accordance with collective agreements.
   • - Freddy del Valle Espinoza: Compensation granted in accordance with collective agreements.
   • - Humberto Ballesteros L.: For using bad language with managers of the Bank.
   • - Dagoberto Gavalo H.: Compensation granted in accordance with collective agreements. Later, an employment agreement was signed with the ex-worker
   • - Jesús María Guzmán S.: For not organising the regulation security rounds and for wrongfully opening the clock.
   • - Helmer Sánchez Castillo: Compensation in accordance with collective agreements. The Bank reconsidered the decision and as the result of an employment agreement the ex-worker was reinstated to his tasks.
   • - Offir Justinico de E.: His fixed-term contract was not extended.
   • - Elías Ruiz de la Victoria: For presenting adulterated documents to obtain wrongfully an illegal social benefit.
   • - Wilmar Jiménez Rosado: For brandishing a gun and threatening colleagues during a social gathering.
   • - José Rodrigo Chávez: For negligently firing his watchman's gun unjustifiably in the ladies' toilets.
   • - Luis Evert Gómez Tinoco: Due to lack of respect for and bad treatment of the manager of one of the Bank's branches in a public place.
   • - Arnoldo Chica López: Compensation in accordance with collective agreements.
   • - Mario Sandoval Rodríguez: For having allowed himself to acquire obligations over and above his capacity to pay with colleagues from work without the Bank's authorisation. Compensation in accordance with collective agreements.
   • - Luis Ernesto Maldonado: For verbal and written rudeness against both chiefs and colleagues at work, which constitutes serious indiscipline.
   • - Sor Teresa García: For indelicacy in handling money delivered as advance payments on travel allowances and for refusing to draw up the regulation report on expenses.
   • - Hernán Jesús Salazar M.: For indiscipline at work, bad treatment of and physical aggression towards colleagues at work.
   • - Jesús Alberto Rivera: For not returning to work at the end of his holidays and presenting an untrue excuse.
   • - Danny Esther Ayala: For having participated in the wrongful handling of a savings account.
   • - Reinaldo Jaimes: For using bad language when referring to colleagues and superiors at work and for having meddled with the register of security patrols.
4. 338. According to the Bank of the Republic the termination of the contracts mentioned had nothing to do with the fact that those persons were workers' representatives nor with their trade union activities but exclusively with the non-fulfilment of the Bank's own standards, either contained in the employment contracts or in the in-house employment regulations.

C. The Committee's conclusions

1. 339. The Committee observes that this complaint refers to the dismissal of 20 trade union leaders belonging to the National Association of Employees of the Bank of the Republic (six in 1987, one in 1988, eight in 1989, and five in 1990). The Committee notes that the Government emphasises the lack of interest shown by the chairman of the above-mentioned National Association, who did not appear on 15 July 1990 at the Ministry of Labour in spite of having been requested to come to discuss the present complaint. However, the Committee underlines the fact that the complaint in question was presented by the complainant organisations on 18 September 1990 and therefore regrets the Government's delayed reply and the delay in action taken to resolve the matter. The Committee observes that the Bank of the Republic in its comments (that the Government does not put forward as its own) denies that the dismissals were due to the trade union activities of the people concerned and declares that all the workers of the Bank occupy positions of trust (in virtue of the statutes of the institution and the in-house employment regulations) and as a result of section 409 of the Labour Code they do not enjoy trade union immunity.
2. 340. In the Committee's view the reasons used by the Bank of the Republic with regard to some of the dismissals (falsification of documents, firing a gun at the workplace, etc.) could give rise, if they were properly proven (which is not clear for the moment from the documentation the Committee has before it), to the termination of the employment relationship. However, the Committee considers that the other cases could be linked to the trade union activities and functions of the people concerned as: (1) the Bank of the Republic declares that it considered in six cases that the justified reasons for dismissing six trade union leaders could not be proven and it paid the corresponding compensation (two of the people affected were later reinstated); (2) in one case a fixed-term contract was not extended; (3) in three cases there is a generic mention of lack of respect for chiefs or managers; (4) in two cases no professional faults are referred to but instead the threatening of colleagues at a social gathering or the collecting of financial obligations over the worker's ability to pay with his colleagues.
3. 341. The Committee expresses its concern over the number of dismissals - amounting to 20 - which have affected trade union leaders from the Bank of the Republic between 1987 and 1990 which suggests that there could have been cases of anti-union dismissals. It also is concerned over the Bank's argument that, unlike other institutions, no trade union leaders from the Bank enjoy adequate protection against acts of anti-union discrimination because all the workers of the Bank occupy positions of trust and thus are excluded from the guarantees provided in section 409 of the Labour Code.
4. 342. In these circumstances, the Committee requests the Government to take immediate measures: (1) so that the labour inspectorate carries out an in-depth investigation into the reasons for the dismissal of the 20 trade union leaders mentioned in this case and so as to ensure that all of those workers whose dismissal was in connection with the conducting of trade union activities are offered the possibility to be reinstated; and (2) to guarantee adequate protection against acts of anti-union discrimination for union leaders of the Bank of the Republic and to ensure that they are not discriminated against on this point with respect to other Colombian trade union leaders.