Rapport intérimaire - Rapport No. 325, Juin 2001

declaration of a strike to be illegal by the administrative

• authority – refusal by an enterprise to bargain collectively
  338. 338 The complaints in the present case are contained in a communication dated 18 August 2000 from the Trade Union of Workers of Antioquia Department (SINTRADEPARTAMENTO), in communications dated 24 November 2000 and 3 January 2001 from the National Trade Union of Workers of AVINCO S.A. (SINTRAVI), in a communication dated 12 March 2001 from the Trade Union of Workers of Procter and Gamble Colombia (SINTRAPROCTERG) and in a communication dated 27 February 2001 from the Trade Union of Workers of “Manufacturas de Colombia” (SINTRAMANCOL). SINTRAPROCTERG sent additional information in a communication dated 14 May 2001. The Government sent partial observations in a communication dated 7 February 2001.
  339. 339 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. 340. In its communication of 8 August 2000, the Trade Union of Workers of Antioquia Department (SINTRADEPARTAMENTO) alleges the dismissal of 48 workers, including three trade union officials, following a stoppage that was declared illegal by the Antioquia Ministry of Labour and Social Security in 1992. The complainant states that the stoppage was motivated by the illegality of the deduction of 5 per cent of workers’ wages ordained by the Governor’s Decree No. 3789 for the purpose of establishing a fund with legal capacity to comply with obligations in respect of benefits. According to the complainant, the Antioquia authorities failed to observe the dismissal procedures provided for in the collective agreement or the legal provisions which permit collective stoppages for unjustified salary deductions. The complainant also alleges that the ruling by the administrative authorities that the strike was illegal was contrary to the provisions of Convention No. 87. Lastly, the complainant states that the judicial authorities ordered the reinstatement of 35 of the 48 workers dismissed in 1992.
2. 341. In its communications of 24 November 2000 and 3 January 2001, the National Trade Union of Workers of AVINCO S.A. (SINTRAVI) states that the union was established on 15 May 2000 and alleges that on the 17th and 18th of the same month, five workers with trade union immunity were dismissed. The complainant also alleges in this connection that on 18 May 2000 the company presented the workers with a collective agreement and put pressure on them, in the form of blackmail, bribes and promises, to sign it. Unionized workers were suddenly deprived of many non-statutory benefits (such as transport at night, paid leave for marriage or childbirth, etc.). The complainant adds that, as a result of the pressure brought to bear by the company, more than 30 workers resigned from the union. Lastly, the complainant alleges that in August 2000, a list of demands was presented and that, in view of the company’s intransigence in refusing to negotiate, it petitioned the Ministry of Labour in September 2000 to set up an arbitration tribunal in accordance with legislation.
3. 342. In its communications of 12 March and 14 May 2001, the Trade Union of Workers of Procter and Gamble Colombia (SINTRAPROCTERG) alleges numerous anti-union acts on the part of the company against union members. Those alleged acts included: pay rises for non-unionized workers; suspension of union members for inadvertent errors in clocking in; dismissal of 25 workers in 1996 after they had joined the union; dismissal of a worker in 1998 after he had joined the union; dismissal in 1999 of a worker who had enjoyed trade union immunity after he had presented a list of demands; offers of money to the union’s president, vice-president and executive secretary to make them leave the company and thus weaken the union; a request to suspend the trade union immunity of the president, based on a report which accused him of sleeping during work-hours; surveillance of the union secretary by company guards; moves to concentrate union members in a single work area; disciplinary summonses of workers joining the union with a view to intimidating them; pressure on the President, Mr. Juan Manuel Estrada, which led to his resignation from the union presidency; refusal to grant trade union licences; and offers of cash to unionized workers to encourage them to leave the company.
4. 343. In its communication of 27 February 2001, the Trade Union of Workers of Manufacturas de Colombia (SINTRAMANCOL) explains that the owners of the enterprise Mancol Popayán S.A. decided to liquidate the said enterprise and requested an authorization from the public authorities in order to close it definitely. On 4 May 1999, the Ministry of Labour authorized the closing of the enterprise and all the workers were dismissed. The complainant alleges that with regard to the trade union leaders, the enterprise initiated proceedings with the judicial authorities in order to obtain the authorization for their dismissals. However, on 4 December 2000 and without having obtained the said authorization, the enterprise dismissed the 12 leaders of the SINTRAMANCOL. The complainant indicates that it initiated legal proceedings against this decision but since the enterprise does not exist anymore, it is impossible to execute any judgement. Therefore, the complainant considers that the Government should bear the responsibility for these violations of trade union rights and should compensate the workers accordingly.

B. The Government’s reply

1. 344. In its communication of 7 February 2001, the Government states that section 451 of the Substantive Labour Code empowers the Ministry of Labour and Social Security to issue an administrative ruling that a collective labour stoppage is illegal. By virtue of that power, the Ministry, in its Decision No. 0678 of March 1992, declared illegal a number of stoppages involving employees of Antioquia Department on 12, 13 and 14 February 1992. The arguments cited by the Ministry included the following:
   • Collective stoppages carried out by employees of Antioquia Department, in Medellín and other municipalities in the Department, were confirmed by officials of the Regional Labour and Social Security Directorate of Antioquia, by departmental and municipal police inspectors and municipal representatives …
   • Section 430 of the Substantive Labour Code, as amended by section 1 of Decree No. 753 of 1956, provides that under the terms of the National Constitution, strikes in the public services shall be prohibited. For the purposes of this provision, public services are deemed to be any organized activity undertaken with the purpose of satisfying the basic needs of the community in a regular and uninterrupted manner, in accordance with special laws, whether that activity is undertaken directly or indirectly by the State or by private individuals.
   • Consequently, if workers considered that their labour rights had been violated, they should have applied to this Ministry and requested that pertinent inquiries be carried out, rather than resorting to the precipitate withdrawal of their labour.
   • Under these circumstances, the collective work stoppages by employees of Antioquia Department are unlawful under the terms of the above provisions and of section 450 of the Substantive Labour Code, as amended by section 65 of Act No. 50 of 1990, according to which collective work stoppages in a public service are unlawful.
   • The Government adds that according to section 450(2) of the Substantive Labour Code:
   • Once a suspension of work or stoppage has been declared illegal, the employer shall be at liberty to dismiss on those grounds any employee who may have contributed to or participated in it, and, with regard to workers covered by trade union immunity, no judicial approval for the dismissals shall be required.
2. 345. The Government states that an appeal against the official Decision in question should have been lodged with the administrative disputes courts, but the workers in fact appealed to the Council of State. In a ruling of 18 April 1996, the Council of State rejected that appeal, arguing inter alia that a declaration of illegality of a stoppage was itself legal if the stoppage took place in a public service, under the terms of the first paragraph of section 65 of Act No. 50 of 1990. It considers that there are no provisions covering essential public services in accordance with article 56 of the 1991 Political Constitution.
3. 346. With regard to the 48 workers who were dismissed, the Government states that, following the ruling by the Ministry of Labour that the stoppage was illegal, the governor of Antioquia, in Decision No. 0083 of 3 March 1992, ruled that there were sufficient grounds for terminating the contracts of employment of 48 workers. Thirty-five of the dismissed workers appealed against the decision and were reinstated. The remaining 13 did not apply for reinstatement, nor did they make any such application to the Department authorities or initiate legal proceedings.
4. 347. Lastly, the Government indicates that through Decision No. 0067 of 3 April 1992, the Antioquia Regional Directorate of the Ministry of Labour ruled on a complaint made by employees of Antioquia Department concerning alleged violations by the Departmental authorities of Chapters IX, X and XI of the collective labour agreement in force; the authorities were fined 3,259,500 pesos on the grounds that “it was clear that a unilateral decision regarding the collective labour agreement in force had been taken by the Departmental authorities in determining that five per cent of workers’ salaries should be paid into the benefits fund which, following the entry into force of Decree No. 3780, is required to cover benefits previously acquired under the collective agreement, in violation of Chapters IX, X and XI of said collective agreement”. The Government states that through the relevant judicial and administrative authorities, it has heard the complaints and petitions of the workers of Antioquia Department and its decisions have been based on the law. For this reason, as indicated previously, of the 48 workers dismissed by the Antioquia authorities, 35 were reinstated by judicial ruling and the Ministry of Labour fined the Antioquia authorities for infringing the collective labour agreement. At the same time, according to the Government, legislation requires that any administrative or legal action in response to violations of social laws be taken within three years.

C. The Committee’s conclusions

1. 348. The Committee notes that in the present case the complainants allege the following: (1) the dismissal in 1992 of 48 workers employed by Antioquia Department following the declaration by the Ministry of Labour that a stoppage in protest at wage deductions was illegal; (2) various anti-union acts at the company AVINCO S.A. (dismissal of five workers covered by trade union immunity after they had formed a trade union organization at the company; pressure put on workers to accept a collective agreement and the subsequent withdrawal of non-statutory benefits from unionized workers; pressure on workers to leave the union; intransigence on the part of the company in refusing to negotiate a list of demands); and (3) numerous anti-union acts at the company Procter and Gamble Colombia (pay rises awarded to non-unionized workers; suspension of union members for inadvertent mistakes in clocking in; dismissal of 25 workers in 1996 after they had joined the union; dismissal of a worker in 1998 after he had joined a union; dismissal in 1999 of a worker with trade union immunity after he had presented a list of demands; offers of cash to the union president, vice-president and executive secretary to encourage them to leave the company and thereby weaken the union; a request to suspend the trade union president’s trade union immunity on the basis of a document which accused him of sleeping during work-hours; surveillance of the union secretary by company guards; moves to concentrate unionized workers in a single work area; disciplinary summonses of workers who joined the union with a view to intimidating them; pressure on the union President, Mr. Juan Manuel Estrada, which led him to resign from the union presidency; refusal to grant trade union licences; offers of payment to workers in return for leaving the company).
2. 349. As regards the allegation concerning the dismissal in 1992 of 48 workers employed by Antioquia Department following the declaration by the Ministry of Labour that a stoppage in protest at pay deductions affecting workers in the Department was illegal, the Committee notes that according to the Government: (1) it decided, under the terms of section 451 of the Substantive Labour Code, which empowers the Ministry of Labour to declare a work stoppage illegal, to declare that the stoppages carried out by employees of Antioquia Department were illegal on the grounds that under the terms of national law (sections 430 and 450 of the Substantive Labour Code), collective labour stoppages are illegal in public services; (2) the workers concerned applied to the Council of State to quash the administrative ruling that the stoppage had been illegal but the application was rejected; (3) while 35 of the dismissed workers took legal action and were reinstated, the remaining 13 workers brought no such action and the statutory deadline for doing so has elapsed; and (4) the administrative authorities fined the Antioquia Department authorities 3,259,500 pesos for violation of the collective agreement in force by deducting 5 per cent of workers’ wages at source.
3. 350. In this regard, the Committee duly notes that those workers who were dismissed for carrying out a stoppage because the company had failed to comply with the collective agreement in force – a fact confirmed by the administrative authorities, who fined the authorities accordingly – and who appealed to the courts were reinstated. On the other hand, as regards the ruling by the Ministry of Labour that the stoppage in question was illegal (under the terms of section 451 of the Labour Code), the Committee notes that it has had occasion to examine similar allegations in the past and on those occasions has indicated that “Responsibility for declaring a strike illegal should not lie with the government but with an independent body which has the confidence of the parties involved” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 522], especially in the public sector, and has requested governments to “take measures to ensure that in future, declarations on the legal status of strikes are made by an independent body and not by the administrative authority” [see the 309th and 314th Reports of the Committee, Case No. 1916, Colombia, paras. 102, 103 and 105(a); and Cases Nos. 1948 and 1955, paras. 72 and 77(c)]. This view has also been supported by the Committee of Experts on the Application of Conventions and Recommendations in relation to Colombia [see Report III (Part 1A), ILC, 88th Session, 2000, pp. 172-73]. The Committee also emphasizes that the decision as to what constitutes an essential service should correspond to the principles of freedom of association so that strikes may only be prohibited or restricted in services, the interruption of which would endanger the life, personal safety or health of whole or part of the population.
4. 351. The Committee regrets that the Government has not communicated its observations as regards the allegations presented by the National Trade Union of Workers of AVINCO S.A. concerning various anti-union acts at the company AVINCO S.A. (dismissal of five workers covered by trade union immunity after they had formed a trade union organization at the company; pressure put on workers to accept a collective agreement and the subsequent withdrawal of non-statutory benefits from unionized workers; pressure on workers to make them leave the union; intransigence on the part of the company in refusing to negotiate a list of demands). Under these circumstances, the Committee urges the Government to take steps to ensure that an independent inquiry is carried out, covering all the allegations made, and that it communicate its observations on the basis of the inquiry’s findings.
5. 352. The Committee requests the Government to communicate its observations on the allegations made recently by the Trade Union of Workers of Procter and Gamble Colombia (SINTRAPROCTERG). The Committee also requests the complainant to supply the names of the persons who, according to these allegations, have been victims of anti-union acts. Finally, the Committee asks the Government to send its observations on the recent allegations presented by the SINTRAMANCOL.