Rapport intérimaire - Rapport No. 329, Novembre 2002

1. 418. The Committee last examined this case at its June 2002 meeting [see 328th Report, paras. 125?228].
2. 419. The Government sent partial observations in communications dated 6 June, 18 July and 10 September 2002.
3. 420. 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), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 421. At its June 2002 meeting, the Committee formulated the following recommendations [see 328th Report, para. 228]:
2. (a) As regards the allegations of violation of the right to strike, presented by UNEB, the failure to transfer to the trade union the dues withheld by the Textiles Rionegro enterprise, presented by SINTRATEXTIL and the dismissal of 34 workers of Textiles Rionegro who had peacefully and legally demanded their wages, in respect of which the Committee had requested the Government to take certain measures to communicate information, the Committee requests the Government to send its observations relating to these allegations without delay.
3. (b) As regards the allegations concerning denial of trade union leave and subsequent dismissal of trade union officers for having taken such leave in the Santa Fe de Bogotá administration, the Committee requests the Government to keep it informed of the final result of the administrative labour dispute against the Bogotá Transport Executive.
4. (c) As regards the allegations concerning aggression against and detention of union leaders and members at the Water Supply and Sewerage Enterprise of Bogotá, presented by SINTRACUEDUCTO, the Committee requests the Government without delay to take measures to carry out the necessary investigations and keep it informed of the result.
5. (d) As regards the dismissal of the trade union officers of SINTRAYOPAL, Ms. Sandra Patricia Russi and Ms. María Librada García, the Committee requests the Government to keep it informed of the results of the investigation and, if the dismissals are found to be anti-union, to take measures immediately to reinstate the two officers in their posts with payment of lost salary.
6. …
7. (g) As regards the dismissal of trade union leaders and members in the Puerto Berrío municipality, the Committee requests the Government to keep it informed of the development of these proceedings and ensure that the workers dismissed for anti-union reasons be reinstated in their posts, with payment of lost salary.
8. (h) As regards the dismissal and refusal to reinstate the leaders of FAVIDI, Ms. Lucy Jannet Sánchez Robles and Ms. Ana Elba Quiroz de Martín, the Committee requests the Government to provide information on the actions taken by the two leaders to date and the results.
9. (i) As regards the proceedings to lift trade union immunity at Textiles Rionegro and Radial Circuito Todelar de Colombia, the Committee requests the complainant organizations to send more information on the allegations in order that the Government may conduct the necessary investigations.
10. (j) As regards the physical aggression against the trade unionist Ms. Claudia Fabiola Díaz Riascos by the security staff of the Banco Popular and the militarization of the Julio Méndez Barreneche Central Hospital, the Committee requests the Government to send the response from the Coordinator of the Office for the Defence of Human Rights of the Ministry of Labour and Social Security as soon as it is received.
11. …
12. (l) As regards the allegations of: (a) persecution, harassment and intimidation at the Lorencita Villega de Santos University Children’s Hospital; (b) repression against trade unionists in connection with the presentation of a petition to Citibank and interference at the Banco Popular, presented by UNEB; (c) failure to comply with the collective agreement, presented by SINTRACUEDUCTO; (d) the dismissal of trade union leaders in the Magdalena district administration and the Julio Méndez Barreneche Central Hospital, presented by SINTRASMAG; and (e) anti-union discrimination in restructuring processes presented by the Association of Workers of Banco Central Hipotecario (ASTRABAN), the Committee requests the Government to keep it informed of the final result of the investigations by the Cundinamarca regional director.
13. …
14. (p) As regards the new allegations presented by ADEM, SIDEM, SINTRASINTETICOS and SINTRATEXTIL, the Committee requests the Government to send its observations without delay regarding these allegations, and urgently in respect of the allegations of murder, in order that it may formulate its recommendations in full possession of the facts.
15. 422. The allegations referred to in the latter recommendation are reproduced below:
16. – the Official Employees’ Association of the Municipality of Medellín (ADEM) and the Public Employees’ Trade Union of the Municipality of Medellín (SIDEM) allege: (a) the dismissal of 83 employees of the Municipality of Medellín with trade union immunity; (b) failure to comply with a memorandum of understanding signed on 20 February 2001 agreeing to their reinstatement; (c) the subcontracting of new employees, deprived of the right to freedom of association, to do the work formerly done by the dismissed workers; (d) the lack of consultation in the administrative restructuring process launched by the Council of Medellín in March 2001; and (e) the mayor’s threats to punish all participants in the strike called for 6 March 2001 in response to the failure to comply with the memorandum of understanding;
17. – the Trade Union Association of Employees of the National Penitentiary and Prison Institute (ASEINPEC) alleges: (a) the murder of trade union officers, Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García; (b) the constant threats received by the union’s leaders; (c) anti?union persecution through measures against union leaders including sanctions, disciplinary proceedings and transfers; (d) the dismissal of union leaders in violation of trade union immunity; (e) the suspension of trade union leaders without pay for having conducted a peaceful demonstration; and (f) pressure on members to leave the union;
18. – the Colombian Association of Banking Employees (ACEM) alleges the dismissal of a union leader following criminal proceedings against him in which he was cleared;
19. – the Trade Union of Workers of Sintéticos S.A. (SINTRASINTETICOS) alleges: (a) pressure and threats by the Odissey Ltd. enterprise to force workers to leave the union; (b) interference by the enterprise in internal union matters; (c) delays in the settlement of proceedings before tribunals relating to violation of freedom of association; (d) sanctions against trade union leaders for making use of trade union leave; and (e) the enterprise’s refusal to hold meetings for collective bargaining;
20. – the National Union of Textile Industry Workers (SINTRATEXTIL) alleges that: (a) in the Facricato enterprise: (1) there is violation of the collective agreement; (2) trade union leave is denied; and (3) trade union leaders are denied access to the premises; (b) in the Enka enterprise: (1) non-fulfilment of agreements concluded between the President of the company and the trade union; (2) violation of the collective agreement through the conclusion of contracts with companies to conduct work directly covered by the collective agreement; (3) distribution of the hardest tasks to unionized workers; (c) in the Coltejer enterprise: dismissals on the grounds of restructuring, in violation of a collective agreement; and (d) in the Textiles Rionegro enterprise, (1) favouritism towards one of the enterprise trade unions to the detriment of the industry union, and (2) violation of the collective agreement.
21. B. The Government’s reply
22. 423. In its communication dated 18 July 2002, the Government states the following:
23. Paragraph (a) of the Committee’s recommendations
24. 424. As regards the failure to transfer to the trade union the dues withheld by the Textiles Rionegro enterprise, the Labour and Social Security Inspector of Rionegro initiated an administrative labour investigation and summoned the parties to a hearing, at which the enterprise undertook to pay the dues. As regards the dismissal of 34 employees of the Textiles Rionegro enterprise, the Government takes due note and will send its observations at a later date concerning the judicial proceedings initiated by these workers.
25. Paragraph (b) of the recommendations.
26. 425. As regards the allegations concerning denial of trade union leave and subsequent dismissal of trade union officers for having taken such leave in the Santa Fe de Bogotá administration, presented by the Trade Union of Public Employees of the Transit and Transport Secretariat (SETT), the Government states that the Cundinamarca Regional Directorate is conducting an administrative labour investigation and that it will send its observations in due course. In addition, the Government states that the First Division of the Cundinamarca Administrative Tribunal is currently examining the action for nullity filed against Decree No. 069 of 1997 ordering the restructuring of the District Transit Secretariat. In reply to a request from the Technical Support Group on Cases and Interventions before the ILO, the Clerk’s Office of the abovementioned Division reports that these proceedings are now at the evidence gathering stage and observations on the decision handed down by the Tribunal will be sent in the near future. Concerning the reinstatement of the dismissed trade union officers, the Government attaches the ruling of the 19th Labour Court of the Bogotá Circuit.
27. Paragraph (c) of the recommendations
28. 426. As regards the allegations concerning violation of the right to strike and acts of aggression against and detention of union leaders and members in the Water Supply and Sewerage Enterprise of Bogotá, presented by SINTRACUEDUCTO, the Government states that the Cundinamarca Regional Directorate of Labour and Social Security initiated an administrative labour investigation against the Water Supply and Sewerage Enterprise of Bogotá and a ruling has been handed down in the first instance, in which it was decided that no police or administrative measures are to be taken against the enterprise, on the grounds that these are disputes which according to the law can only be settled in court. The ruling is now final, given that the appeals provided for by the law have not been lodged. Ruling No. 189 of 6 February 2002 is attached.
29. Paragraph (d) of the recommendations
30. 427. As regards the dismissal of Ms. María Librada García, an officer of SINTRAYOPAL, the Government states that a complaint was filed with the Yopal labour court, which ruled against the trade union officer. This decision was upheld by the Yopal District Higher Court, and therefore an action for the protection of constitutional rights (tutela proceedings) has been filed with the Council of State. As regards Ms. Sandara Russi, the Government states that she has not filed any judicial proceedings. An administrative labour investigation is now being carried out by the Casanare Regional Directorate of Labour and Social Security against the Yopal town council. The Government states that it will send the results of the investigation.
31. Paragraph (g) of the recommendations
32. 428. As regards the dismissal of trade union leaders and members in the Puerto Berrío municipality, the Government states that the Labour and Social Security Inspectorate of Puerto Berrío has initiated an administrative labour investigation against the Puerto Berrío municipal council, which is now at the evidence gathering stage, and that it will send the results.
33. Paragraph (h) of the recommendations
34. 429. As regards FAVIDI’s refusal to participate in collective bargaining, the Government states that the Cundinamarca Directorate of Labour and Social Security initiated an administrative labour investigation and summoned the parties to conduct the relevant proceedings, of which the record is attached. As regards the cases of Ms. Lucy Janeth Sánchez and Ms. Ana Elvira Quiroz de Martí, they filed judicial proceedings with the 18th Labour Court of the circuit, which ordered their reinstatement in a ruling dated 30 October 1998, which was revoked by the Labour Chamber of the Higher Court of the Santa Fe de Bogotá judicial district in a ruling dated 12 August 1999.
35. Paragraph (i) of the recommendations.
36. 430. As regards the allegations concerning proceedings to lift trade union immunity at the Radial Circuito Todelar enterprise, the Government states that the Cundinamarca Directorate of Labour and Social Security initiated an administrative labour investigation against the enterprise which is currently at the evidence gathering stage. Observations on the final outcome will be sent.
37. Paragraph (j) of the recommendations
38. 431. As regards the physical aggression against the trade unionist Ms. Claudia Fabiola Díaz Riascos by the security staff of the Banco Popular and the militarization of the Julio Méndez Barreneche Central Hospital, the Government reports that the Ministry of Labour and Social Security will notify the Office for the Defence of Human Rights.
39. Paragraph (l) of the recommendations
40. 432. As regards the allegations of persecution presented by SINTRAINFANTIL, ASTRABAN and SINTRASMAG, the Cundinamarca and Magdalena Regional Directorates of Labour and Social Security initiated administrative labour investigations into the matter, which are at the evidence gathering stage. The Committee will be informed of their results.
41. Paragraph (p) of the recommendations
42. 433. In its communication of 10 September 2002, the Government refers to matters which did not figure in the allegations. The Government also states that SIDEM has withdrawn its lawsuits.
43. 434. As regards the dismissal of Mr. Hugo Leonel Gándara Martínez from Banco Ganadero, as alleged by ACEB, the Government states in a communication dated 6 June 2002 that the Ministry of Labour, through its Sucre Regional Directorate, initiated an administrative labour investigation against the Corozal branch of Banco Ganadero; the parties have been notified of the opening of the investigation and the Committee will be informed of the results.
44. 435. The Committee further states that the special representative of the Banco Ganadero informed it that Mr. Hugo Leonel Gándara Martínez was employed at the bank from 3 January 1974 to 3 August 1995, his last post being that of secretary of the Corozal branch, in the Department of Sucre. It states that Mr. Martínez’s contract of employment was terminated unilaterally for just cause as of 3 August 1995, his dismissal being based on the following facts:
45. – At the beginning of 1995 the bank, through its internal control bodies and in particular the office of the internal auditor, found that the bank had been defrauded in the years immediately preceding out of an amount totalling approximately 5,200,000 pesos in the form of loans granted to himself by the then manager, Mr. Luis Urbano Olmos, irregular loans to third parties, entering fictitious transactions in the accounts and other fraudulent acts, resulting in material damage to the institution in the same amount.
46. – The bank accordingly filed a criminal complaint in order to identify the perpetrators with the Attorney-General’s Office, given that the criminal act included falsifying documents in the private and public domain, among other punishable acts.
47. – In addition, the bank terminated the contracts of employment of the manager, Mr. Urbano Olmos and other staff of the branch, including that of Mr. Hugo Leonel Gándara Martínez, and hence it is not correct to state, as does the trade union complaint, that the bank had terminated only Mr. Gándara Martínez’s contract of employment up to the point when the criminal court subsequently ruled on the criminal liability of those who had been called to account by the Attorney-General’s Office.
48. – As regards the just cause invoked by the bank as grounds for terminating Mr. Gándara Martínez’s contract of agreement, is should be pointed out that this decision was not based on an assumption that he was guilty, i.e. the grounds for the bank’s decision were not the illegal act in which he may have participated, but the grave negligence he had displayed and the serious breach of his professional obligations and duties; in other words, his passive attitude with respect to the irregularities observed to have been committed in the branch of which he was secretary constituted serious professional misconduct accordingly, a copy of the notification of termination of his contract is enclosed.
49. – As stated previously, Mr. Gándara Martínez filed a complaint with the ordinary court against Banco Ganadero in order to obtain his reinstatement, with a subsidiary claim for payment of compensation for wrongful dismissal. Mr. Gándara Martínez renounced his principal claim for reinstatement at the first hearing. Upon completion of the proceedings, the Mixed Court of the Corozal Circuit handed down a ruling on 25 April 1997, releasing the bank from the claims to compensation for wrongful dismissal and compensatory allowance, given that the court found the termination of contract to have been in accordance with the law, and merely sentenced Banco Ganadero to pay 491,555.55 pesos in compensation for the delay in paying the severance pay due. The decision was upheld by a ruling of the Higher Court of the Sincelejo Judicial District on 20 February 1998. In view of this, Mr. Gándara decided to file an appeal for review with the Labour Chamber of the Supreme Court of Justice which, on 10 December 1998, and after carrying out a detailed analysis of the body of evidence, and noting and examining the notification of termination of employment, decided not to annul the ruling handed down in the second instance, as it found that the lower courts did not err in finding the dismissal justified. It is clear from the above that Mr. Gándara Martínez, both in the proceedings before the courts and in his extraordinary appeal for review, duly exercised his fundamental right to contest and defend.

C. The Committee’s conclusions

1. 436. The Committee observes that when it analysed this case concerning acts of anti-union discrimination and harassment at its June 2002 meeting, it had requested the Government to take certain measures or communicate information in respect of these matters [see 328th report, paras. 125-228]. Generally speaking, given the large number of allegations of anti-union discrimination which have remained pending for a long time, the Committee emphasizes that “no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 690], and that “protection against anti-union discrimination should apply more particularly in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside the workplace or, with the employer’s consent, during working hours” [see Digest, op. cit., para. 694]. Furthermore, “no person should be dismissed or prejudiced in his or her employment by reason of trade union membership of legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment” [see Digest, op. cit., para. 696] and “legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination in order to ensure the effective application of Article 1 of Convention No. 98” [see Digest, op. cit., para. 697]. Accordingly, “respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial” [see Digest, op. cit., para. 741].
   • Paragraph (a) of the Committee’s recommendations at its June 2002 meeting
2. 437. The Committee notes the hearing conducted at the request of the Labour and Social Security Inspector, during which the Textiles Rionegro enterprise undertook to pay the trade union dues that had been withheld. As regards the dismissal of 34 employees of the Textiles Rionegro enterprise and allegations of violation of the right to strike presented by the UNEB, the Committee requests the Government to inform it without delay on the investigations carried out and any judicial measures adopted.
   • Paragraphs (b), (g), (i) and (l) of the recommendations
3. 438. As regards (a) the denial of trade union leave and subsequent dismissal of trade union officers for having taken such leave in the Santa Fe de Bogotá administration, (b) the dismissal of trade union officers and members in the Puerto Berrío municipality, (c) the proceedings to lift trade union immunity at the Radio Difusora Profesional Ltda. – TODELAR enterprise and (d) the persecution alleged by SINTRAINFANTIL, ASTRABAN and SINTRASMAG, the Committee notes the information sent by the Government to the effect that the Cundinamarca and Magdalena Regional Directorates of Labour and Social Security and the Puerto Berrío Labour and Social Security Inspectorate have initiated administrative labour investigations into these matters, which are at the evidence gathering stage, and that it will be informed of the results of these investigations. The Committee requests the Government to continue keeping it informed in this respect.
   • Paragraph (c) of the recommendations
4. 439. As regards the allegations concerning aggression against and detention of union leaders and members at the Water Supply and Sewerage Enterprise of Bogotá, the Committee notes that an administrative labour investigation was initiated by the Cundinamarca Regional Directorate of Labour and Social Security, in accordance with the points contained in the complaint presented by SINTRACUEDUCTO, and that a ruling was handed down in which it was decided that no police or administrative measures would be taken against the abovementioned enterprise, on the grounds that these are disputes which according to the law can only be settled in court. The Committee notes that this ruling is final as the appeals provided for by the law have not been lodged.
   • Paragraph (d) of the recommendations
5. 440. The Committee takes note of the judicial decisions concerning the dismissal of Ms. María Librada García. The Committee requests the Government to keep it informed of the outcome of the tutela proceedings filed with the Council of State. The Committee also requests the Government to keep it informed of the results of the administrative labour investigation initiated by the Casanare Regional Directorate of Labour and Social Security against the Yopal town council.
   • Paragraph (h) of the recommendations
6. 441. As regards the dismissal and refusal to reinstate the leaders of FAVIDI, Ms. Lucy Janeth Sánchez and Ms. Ana Elvira Quiroz de Martín, the Committee notes the information sent by the Government to the effect that these persons filed judicial proceedings with the 18th Labour Court of the circuit, which ordered their reinstatement in a ruling dated 30 October 1998, but that this ruling was revoked by the Labour Chamber of the Superior Court of the Santa Fe de Bogotá judicial district, in a ruling dated 12 August 1999. The Committee requests the Government to transmit a copy of the revocation ruling and to inform it whether this ruling has become final, and if not, whether an appeal has been lodged against it.
   • Paragraph (j) of the recommendations
7. 442. As regards the physical aggression against the trade unionist Ms. Claudia Fabiola Díaz Riascos by the security staff of the Banco Popular and the militarization of the Julio Méndez Barreneche Central Hospital, the Committee notes that the Government states that it will notify the Office for the Defence of Human Rights in this regard. The Committee regrets to observe that when it last analysed this case the Government had already informed it that it would send a letter concerning the allegations to that Office. The Committee recalls 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” and that “justice delayed is justice denied” [see Digest, op. cit., paras. 56 and 754]. The Committee requests the Government to take the necessary measures to ensure that the investigation is carried out without delay and to keep it informed of its outcome.
   • Paragraph (p) of the recommendations
8. 443. As regards the alleged dismissal of the trade union officer of the ACEB, Mr. Hugo Leonel Gándara Martínez, for anti-union reasons, the Committee notes the ruling handed down by the Labour Chamber of the Supreme Court of Justice upholding the ruling handed down in the second instance clearing Banco Ganadero.
9. 444. As regards the allegations submitted by ADEM and SIDEM on the violation of the agreement under which the Government had undertaken to reinstate the 83 workers enjoying trade union protection, and on the lack of consultations during the administrative restructuring process initiated by the Council of Medellín, the Committee notes that, in its reply, the Government limits itself to stating that SIDEM has withdrawn its lawsuits. In this respect, the Committee requests the Government to communicate its observations on the allegations made by ADEM.
10. 445. As regards the allegations presented by ADEM, SINTRASINTETICOS, SINTRATEXTIL and ASEINPEC, the Committee regrets to note that despite the fact that these allegations were put forward in its previous examination of the case, the Government states that only now will it notify the Office for the Defence of Human Rights of the Ministry of Labour and Social Security. Moreover, the Committee observes that given the nature of certain allegations (anti-union dismissals, threats of sanctions in the event of a strike, lack of consultation in restructuring processes), the bodies competent to handle them would perhaps be the labour courts rather than the Office for the Defence of Human Rights. The Committee requests the Government to send its observations on the allegations without delay.
11. 446. The Committee requests the Government to send its observations without delay concerning these allegations and urgently in respect of the allegations of murder of trade union leaders Jesús Arley Escobar, Fabio Humberto Burbano Córdoba, Jorge Ignacio Bohada Palencia and Jaime García, in order that it may formulate its recommendations in full possession of the facts.