Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 294, Juin 1994

1. 275. The Committee examined this case at its meeting of May 1993 (see 287th Report, paras. 490 to 505, approved by the Governing Body at its 256th Session (May 1993)), in which it reached interim conclusions. The Latin American Central of Workers (CLAT) and the General Confederation of Democratic Workers of Colombia (CGTD) presented new allegations in communications dated 29 June and 30 July (CLAT) and 21 July 1993 (CGTD).
2. 276. The Government sent its observations in communications dated 4 June, 2 July, 4 October, 6 December 1993 and 28 April 1994.
3. 277. Colombia has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 278. At the previous examination of the case by the Committee, certain allegations remained pending on which the Government had not sent observations or had sent only partial observations: acts of discrimination against workers who were members of the SINTRAMADRILEÑA trade union (Salsamentaria Madrileña Ltd. enterprise); acts of physical aggression by the police against workers of the SITTELECOM and ATT trade union organizations who were holding a trade union demonstration against the privatization of TELECOM enterprise (the police action resulted in the destruction of equipment and installations of the enterprise). There also remained pending the alleged reprisals taken as a result of the protest action in the TELECOM enterprise; the assassination of the trade unionist Joaquín María Caicedo; disciplinary proceedings against hundreds of trade union leaders and trade unionists; the filing of charges by the nation's Attorney General against trade union leaders and trade unionists in connection with the destruction of equipment, leading to the arrest of the following members of the ATT: Gonzalo Díaz Gaveria, Jorge Lerma, Carlos Salazar, Luis María Carrillo, Leopoldo Ojeda, Camilo Durán Pinilla, Ricardo Díaz Granada, Tayner Rodríguez G., Mario Nelson Duarte, Carlos Lozada; likewise, warrants were issued for the arrest of the following SITTELECOM trade union leaders: Heberto López, Antonio Yemail and Rafael Boldovino. Furthermore, wages were docked for all workers who participated in the trade union protest. It had also been alleged that the application for recognition of the legal status of the trade union of workers in the ATEMPI Ltd. enterprise had been pending for more than six months; following information from the Government that legal recognition had been granted, the Committee requested the Government to provide the registration certificate and the certificate of legal personality of the said trade union.
2. 279. Furthermore, the CLAT alleged that since the beginning of 1993 the social climate in Colombia has been degenerating, and that there have been many victims. In particular the complainant organization reported the murder in the banana region of trade union leaders, Jesús Alirio Guevara Angarita and José Oliverio Molina (Vice-President and General Secretary respectively of Sintrainagro) and Luis Escobar (President of the Sintéticos enterprise S.A. trade union) in Barrancambermeja.
3. 280. In these circumstances, the Committee made the following recommendations: (see 287th Report of the Committee, para. 505):
4. The Committee requests the Government to send detailed information on all the allegations related to the establishment of the SINTRAMADRILEÑA Trade Union in the Salsamentaria Madrileña enterprise, namely: the threats of dismissal against members who did not withdraw from the trade union, the subsequent dismissal or punishment of some of them, the dismissal of the trade union's president and three members of its executive committee, the bribes offered to trade union leaders to have them request the authorities to cancel the legal status of the trade union, and the excessive delays in the negotiation of the demands presented by the trade union.
5. The Committee requests the Government to provide the registration certificate and the certificate of legal personality to the National Trade Union of Workers of ATEMPI Ltd.
6. As regards the numerous allegations concerning anti-trade union reprisals following the dispute over the proposed privatization of the TELECOM enterprise, as well as the murder of trade union leaders, ... the Committee notes that these allegations were forwarded to the Government recently, but nevertheless expresses its deep concern at the gravity of these charges. The Committee therefore requests the Government to respond to these allegations as soon as possible.
7. B. New allegations
8. 281. In its communication of 29 June 1993, the CLAT criticizes certain special procedural provisions applicable to persons charged with carrying out terrorist offences, which may be used against trade union leaders, as was the case in the TELECOM dispute. Furthermore, in its communication of 30 July 1993, the CLAT alleges that on 5 March 1993 supposedly paramilitary bodies set off a car bomb in the middle of avenue 13A between streets 23 and 24 near the TELECOM installations and that this attack resulted in the death of Gonzalo García, a technician in the testing department of the national telephone company. This act revealed the clear desire to intimidate and silence the solidarity movement which had been joined by the work colleagues of the persons arrested, as well as by a number of trade union, political and humanitarian organizations from the Americas and Europe.
9. 282. In its communication of 21 July 1993, the CGTD alleges that the leaders of the trade union association ASONALJUDICIAL (an organization made up of magistrates, judges and judicial employees) had been put on trial accused of organizing a strike and that there was a possibility that they would be removed from their posts and even imprisoned. The complainant organization states that those charged had participated in a strike movement held throughout the country on 19 November 1992.
10. C. The Government's replies
11. 283. In its communication of 4 June 1993, the Government states that the strike carried out in the TELECOM enterprise was declared illegal by resolution No. 001448 of 22 April 1992 since the activities carried out by the National Telecommunications Enterprise (TELECOM) are an essential public service.
12. 284. In its communication dated 2 July 1993, the Government provides a copy of the resolution of the Ministry of Labour dated 15 May 1992 ordering the registration of the National Trade Union of Security Workers (ATEMPI) Ltd. The Government also provides a copy of the resolution of the same Ministry which refers to a denunciation against the Salsamentaria Madrileña Ltd. enterprise concerning obstacles or difficulties preventing the workers from joining the trade union, which states that there was no violation of freedom of association.
13. 285. In its communication dated 4 October 1993, the Government states that as regards the allegations concerning ASONALJUDICIAL, disciplinary proceedings have been taken against a number of judicial officials who have been charged with holding a strike. The respective decisions have not yet been taken.
14. 286. In its communication of 6 December 1993, concerning the allegations against the Salsamentaria Madrileña Ltd. enterprise, the Government states that: (1) the administrative procedures and investigations by the Ministry of Labour have shown that there was no violation of freedom of association, nor obstruction or difficulties preventing workers from joining the SINTRAMADRILEÑA trade union; (2) three trade union officials were indeed dismissed and they have taken legal action alleging violation of trade union immunity (fuero sindical); (3) the Government has no knowledge of any request for the cancellation of the legal personality of the trade union organization and that such cancellation can only be made through judicial channels; (4) as regards the excessive delay in the negotiation of the demands put forward by the trade union, the enterprise was punished with a fine ordered by ministerial resolution.
15. 287. Furthermore, the Government states that as regards the events which occurred in the TELECOM enterprise following the declaration of the illegality of the strike an agreement was concluded between the Government and the workers to set up a joint committee composed of members of the administration of the enterprise, representatives of the workers and the executive committee of the trade union to study, analyze and resolve the disciplinary sanctions applicable and that it was decided to make wage deductions in respect of the strike only from those workers who actively participated in the strike.
16. 288. In its communication of 28 April 1994, the Government states that as regards the arrests of trade unionists of the TELECOM enterprise, following the events which occurred between 22 and 29 April 1992, an inquiry is being carried out by the Special Unit of Offences against the Administration and Public Allegiance and that proceedings are being taken against Messrs. Carlos Enrique Lozada Giraldo, Camilo Durán Pinilla, Leopoldo Ojeda Castiblanco, Tayner Enrique Rodríguez González, Ricardo Díaz Granada, Luis María Carrillo Rodríguez, Hernando Garcia Pinzón, Mario Nelson Durán Ramirez, Jorge Eliecer Lerma Sterling, Carlos León Salazar Perez, Gonzalo de Jesús Díaz Gaviría, Aníbal Enriquez Dorado and Flavio Gonzalo Sierra Rozo. The Government states that the trade unionists were released on bail since the inquiry established that there had been no acts of terrorism but only the disruption of the communication services. Subsequently proceedings were also brought against Messrs. Antonio Yemail del Risco, Rafael Valdovino Galvis and Eberto López Machado. As regards the murder of Mr. Joaquín María Caicedo Angulo, the Government states that a judicial inquiry is being carried out, which is now at the preliminary stage, to determine the cause of his death. The Government also states that the criminal investigations conducted have produced no indication or evidence making it possible to conclude that the police carried out acts of physical aggression against members of the trade union or caused damage to TELECOM installations. The Government requests precise details concerning the alleged assassination of the trade unionist Mr. Gonzalo Garcia (date and place of the murder) in order for it to communicate its observations.
17. 289. Finally, the Government states that judicial inquiries are being carried out to determine the causes of and the persons responsible for the assassinations of Messrs. Jesús Alirio Guevara Angarita and José Oliverio Molina (Vice-President and Secretary-General respectively of Sintrainagro).

D. The Committee's conclusions

1. 290. The Committee notes that the allegations pending from its examination of this case in May 1993 and the new allegations made refer to the following matters:
   • - acts of discrimination in the Salsamentaria Madrileña Ltd. enterprise against workers of the trade union of this enterprise (SINTRAMADRILEÑA), such as threats of dismissal against members who did not leave the trade union; the dismissals of the president of the trade union and two members of the executive committee of the union; the bribing of two trade union officials to request the authorities to cancel the trade union's legal status; the excessive delay in the negotiation of the demands put forward by the trade union;
   • - acts of physical aggression by the police against workers of the SITTELECOM and ATT trade union organizations who were protesting against the privatization of the TELECOM enterprise (according to the complainants the police action resulted in damage to the equipment and installations of the enterprise). As a reprisal against the strike, judicial proceedings were initiated, an assassination occurred and trade union officials and workers of the TELECOM enterprise were arrested and workers who participated in the protest action had their wages docked;
   • - the murder of three trade union officials in the banana region and in Barrancabermeja;
   • - disciplinary proceedings against the leaders of the ASONALJUDICIAL trade union organization for participating in a strike held throughout the country; and
   • - the failure to grant legal status to the trade union of workers which had been set up in the ATEMPI Ltd. enterprise.
2. 291. As regards the acts of discrimination by the Salsamentaria Madrileña Ltd. enterprise against workers of the enterprise trade union, the Committee notes that according to the Government, administrative procedures and investigations by the Ministry of Labour established there was no violation of the right to freedom of association nor had any difficulties or obstacles been placed in the way of workers wanting to join the trade union. Furthermore, as regards the alleged bribing of two trade union officials to request the cancelling of the legal personality of the trade union, the Committee notes that the Government merely states that it has no knowledge of any request for the cancellation of the legal personality of the trade union organization in question. In these circumstances, the Committee requests the Government to verify whether in fact a request had been made to the judicial authorities for the cancelling of the legal personality and to keep it informed in this respect.
3. 292. As regards the dismissal of the three members of the executive committeee of the SINTRAMADRILEÑA trade union, the Committee notes that the Government acknowledges the dismissal of these persons and states that legal proceedings have been initiated alleging violation of trade union immunity (fuero sindical). In these circumstances, the Committee requests the Government to inform it of the outcome of these judicial proceedings and urges that, if it is established that the workers were dismissed as a result of the legitimate exercise of their trade union activities, they are reinstated in their jobs. As regards the excessive delay by the enterprise in the negotiation of the demands put forward by the trade union, the Committee notes with interest that an inquiry by the Government established that this allegation was well-founded and that the enterprise was fined. The Committee recalls the importance which it gives to the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement, which means that any unjustified delay in the holding of negotiations should be avoided and it expresses the hope that in future such conduct will not be repeated.
4. 293. As regards the declaration that the strike carried out by TELECOM workers was illegal and the subsequent sanctions imposed on strikers, the Committee notes the observations of the Government that: (1) the activities carried on by the TELECOM enterprise constitute an essential public service (the main activity of the enterprise is to provide a telephone service) and that the strike was therefore declared illegal; and (2) a committee was set up composed of representatives of the administration of the enterprise, representatives of the workers and the executive committee of the trade union to study, analyze and resolve the disciplinary sanctions to be applied, that it decided to dock the wages of only those workers who had actively participated in the strike; and that no workers were dismissed.
5. 294. In this respect, the Committee recalls that in examining allegations concerning the exercise of the right to strike in the telephone sector, it pointed out that: "telephone services can be considered essential services since their interruption may endanger the life, personal safety or health of the whole of part of the population; consequently, even stringent restrictions on the right to strike of workers in the sector, including the prohibition of the right to strike, could be admissible from the standpoint of the principles of freedom of association" (see 279th Report, Case No. 1532 (Argentina), para. 284). In these circumstances, noting that there were no dismissals and that following the establishment of a joint committee, wages were docked in respect of the strike only from workers who actually participated in the strike, the Committee believes this aspect of the case requires no further examination.
6. 295. As regards the acts of violence in the TELECOM enterprise between 22 and 29 April 1992 (acts of aggression between the police and strikers and damage of equipment and installations), the Committee notes that the Government states that judicial proceedings are being taken against the trade unionists mentioned by the complainants on charges of disrupting the communication services and that these trade unionists have been released on bail and that a criminal investigation established that the police did not carry out any acts of physical aggression against strikers or cause damage to the installations of the TELECOM enterprise. Noting that the versions of the events given by the complainants and the Government are contradictory and that judicial proceedings are under way, the Committee requests the Government to inform it of the outcome of these proceedings.
7. 296. As regards the alleged murder of trade union officials and trade unionists, the Committee expresses its deep concern at the serious nature of these events which it deplores and repudiates. The Committee recalls that "trade union rights can only be exercised in a climate that is free from violence, pressure or threats or any kind against trade unionists; it is for governments to ensure that this principle is respected" (see Digest of decisions and principles of the Freedom of Association Committee, 1985, 3rd edition, para. 70).
8. 297. As regards the murder of Messrs. Joaquín María Caicedo and Gonzalo García, the Committee notes that a judicial inquiry is being carried out to determine the cause of the murder of Mr. Caicedo and notes that the Government has not made any observations on the assassination of Mr. Gonzalo García, stating that it has not been informed of the date or place of the event. The Committee regrets that observations have not been communicated as concerns the murder of Mr. Gonzalo García, since on various occasions the Office provided the information requested by the Government. The Committee requests the Government to carry out an investigation to determine the facts and punish the authors of the murder of Mr. Gonzalo Garcia and to inform it of the outcome of the inquiry and of the proceedings under way in connection with the murder Mr. Joaquín María Caicedo.
9. 298. As regards the murder of the three trade union leaders in the banana region and in Barrancabermeja (Messrs. Jesús Alirio Guevara Angarita, José Oliverio Molina, (vice- president and secretary-general of Sintrainagro) and Luis Escobar (president of the Sintéticos workers' trade union), the Committee notes that the Government states that judicial inquiries are being carried out to determine the causes and authors of the first two murders. The Committee deeply deplores these assassinations and requests the Government to inform it of the outcome of the judicial inquiries under way. The Committee also urges the Government to carry out a judicial inquiry to determine the cause of the murder of Mr. Luis Escobar, to punish the guilty parties and to keep it informed in this respect.
10. 299. As regards the disciplinary procedures against the leaders of the ASONALJUDICIAL trade union organization for having participated in a strike held in the country on 19 November 1992, noting that disciplinary procedures are under way against several judicial officials and that these officials exercised functions of authority on behalf of the State, the Committee requests the Government to inform it of the outcome of the disciplinary procedure and to provide it with a copy of the respective judgement handed down, including the reasons adduced.
11. 300. The Committee notes with interest the copy of the registration certificate and the certificate of legal personality of the workers' trade union set up in the ATEMPI Ltd. enterprise which the Committee had requested at its meeting of May 1993.
12. 301. As regards the special provisions against terrorism, although the Committee is aware of the serious situation of violence affecting the country, it must point out that as far as possible recourse should be made to the provisions of the ordinary law rather than emergency measures which are liable, by their very nature, to involve certain restrictions on fundamental rights (see Digest, op. cit., para. 194).