Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 346, Juin 2007

425. These complaints are contained in a communication of 5 April 2006 from the Single Confederation of Workers of Colombia (CUT) and a communication dated 21 July 2006 from the Trade Union of Workers of the Bogotá Telecommunications Enterprise (SINTRATELEFONOS).

1. 426. The Government sent its observations in a communication dated 14 November 2006.
2. 427. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 428. In its communication of 5 April 2006, the CUT alleges various anti-union acts, committed by the enterprise Laboratorios Biogen de Colombia, against workers who were members of the National Trade Union of Workers in the Chemical and/or Pharmaceutical Industry of Colombia (SINTRAQUIM) and who enjoyed trade union immunity. The CUT claims that, in August 2000, the workers at the enterprise established a primary trade union but that, before it was able to notify the employers of its membership, the enterprise dismissed the entire executive board of the trade union. Around 80 workers therefore decided to join SINTRAQUIM. Despite this, the enterprise continued its repressive actions and today only 28 of these union members remain, all of whom have trade union immunity. The complainant organization adds that Ms María Eugenia Reyes, Mr Hugo Aguilar, Ms Nubia Marcela Avendaño, Mr David Villamizar, Ms Sandra Duarte, Ms Cristina Moore and Mr Luis Fernando Cárdenas were transferred to other enterprises to carry out tasks other than those for which they were recruited, for which they are not qualified, a deterioration in their working conditions, sanctions of two months’ suspension from their posts and, finally, the receipt of a communication informing them that, owing to failures in certain machines, they must stay away from work until further notice, without receiving the corresponding wages. As a result of an action for protection of constitutional rights (tutela) filed by the workers, the last communication was not brought into effect and, subsequently, they were offered a “voluntary settlement”, which they all rejected.
2. 429. The complainant organization alleges that Ms María Eugenia Reyes, in particular, filed a tutela action against the two-month suspension that had been imposed on her without her being able to exercise her right to defence, and that the judicial authority ordered that she be reinstated without loss of wages. This decision was appealed by the enterprise and a ruling is now pending.
3. 430. According to SINTRAQUIM, despite the many communications and complaints sent to the Ministry of Social Protection, the Ministry has not taken any measures to put an end to this situation.
4. 431. In its communication of 21 July 2006, SINTRATELEFONOS alleges that three of its members, Mr Jhon Mauricio Bonilla Vargas, Mr Hugo Fabián Marín Tovar and Mr Ricardo Avila Peralte were dismissed from their jobs without due cause and their trade union organization being given advance notice, as required by the ruling of the Constitutional Court of Justice which, in a decision of 2005, had advised the ETB that, “should it choose to make legitimate use of the power of unilateral termination that labour legislation gives the employer in regard to unionized workers, it shall inform the appropriate trade union prior to taking such action”.
5. 432. According to the complainant organization, the dismissals were recorded as part of a voluntary retirement programme and were intended to intimidate the trade union organization.
6. B. The Government’s reply
7. 433. In its communication of 14 November 2006, the Government states, in response to the allegations made by SINTRATELEFONOS, that the three workers were indeed dismissed, but that this was done in accordance with the provisions of section 64 of the Substantive Labour Code (concerning payment of compensation) and with the conditions laid down in the collective agreement in force at the enterprise. The Government encloses a communication dated 12 July 2006 from the ETB to the chairperson of the trade union organization, providing information on the enterprise’s decision to dismiss the three workers, in conformity with the Constitutional Court ruling, as well as copies of letters of the same date sent to the three workers notifying them of their dismissal.
8. 434. In a communication from the enterprise to the Government, which the Government has sent to the Committee, the enterprise states that the workers’ contracts were terminated in accordance with legislation and denies any intention of anti-union persecution, explaining that the voluntary retirement programme was not intended for rank-and-file workers, the category to which all the dismissed workers belonged.

C. The Committee’s conclusions

1. 435. The Committee observes that the present case relates to: (1) numerous anti-union acts alleged by the CUT to have been committed by the enterprise Laboratorios Biogen against workers who were members of the National Trade Union of Workers in the Chemical and/or Pharmaceutical Industry of Colombia (SINTRAQUIM), in particular, against seven trade union leaders (María Eugenia Reyes, Hugo Aguilar, Nubia Marcela Avendaño, David Villamizar, Sandra Duarte, Cristina Moore and Luis Fernando Cárdenas); and (2) the alleged dismissal of three workers (Jhon Mauricio Bonilla Vargas, Hugo Fabián Marín Tovar and Ricardo Avila Peralte), members of SINTRATELEFONOS, by the Bogotá Telecommunications Enterprise (ETB) without advance notice to the trade union organization, with the aim of creating a climate of intimidation towards the trade union organization, in the context of a voluntary retirement programme.
2. 436. With respect to the CUT’s allegations of numerous anti-union acts against the members of SINTRAQUIM by the enterprise Laboratorios Biogen de Colombia, and against seven leaders of the union in particular, the Committee notes that, according to the allegations, the enterprise has conducted a policy of repression against all workers wishing to exercise their trade union rights. According to the allegations, the enterprise first dismissed all of the members of the executive board of the primary trade union that had been created by the workers, and then, when 80 workers chose to join SINTRAQUIM, continued this repression, decimating the trade union organization and leaving it with a current membership of only 28. The Committee notes that, according to the allegations regarding the particular cases of María Eugenia Reyes, Hugo Aguilar, Nubia Marcela Avendaño, David Villamizar, Sandra Duarte, Cristina Moore and Luis Fernando Cárdenas, these individuals were transferred to other enterprises with less favourable working conditions, subjected to sanctions of up to two months’ suspension from their posts and even pressured to accept a “voluntary settlement” in a communication ordering them to stay away from work until further notice, without payment of their corresponding salaries. The Committee notes that María Eugenia Reyes, in particular, filed a tutela action with the judicial authority for preventing her from exercising her right to defence, that the judicial authority ordered that she be reinstated without loss of pay, but that the enterprise lodged an appeal on which a decision is currently pending.
3. 437. On this matter, the Committee regrets that the Government has not sent its observations concerning these allegations, which it considers extremely serious. The Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions, and that no person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 769 and 770]. The Committee therefore requests the Government to take the necessary measures to ensure that an independent investigation is instituted without delay into the enterprise Laboratorios Biogen de Colombia and if the allegations are confirmed, to ensure that all measures prejudicial to Ms María Eugenia Reyes, Mr Hugo Aguilar, Ms Nubia Marcela Avendaño, Mr David Villamizar, Ms Sandra Duarte, Ms Cristina Moore and Mr Luis Fernando Cárdenas remain without effect, that these individuals are reinstated in their posts with payment of wages owed and appropriate compensation and that those responsible are punished appropriately. The Committee requests the Government to keep it informed in this regard.
4. 438. With regard to the alleged dismissal by the ETB, in the context of a voluntary retirement programme, of three workers ( Jhon Mauricio Bonilla Vargas, Hugo Fabián Marín Tovar and Ricardo Avila Peralte) who were members of SINTRATELEFONOS, without advance notice to their trade union organization, with the aim of creating a climate of intimidation in the trade union organization, the Committee notes that according to the Government, the dismissals were carried out in accordance with section 64 of the Substantive Labour Code and the provisions of the collective agreement in force, and that the decision to dismiss the workers was communicated to the trade union organization in accordance with the ruling of the Constitutional Court (a copy of which the Government enclosed along with copies of the letters sent to the workers in question notifying them of their dismissal). The Committee likewise notes that, in its communication to the Government, the enterprise denies the allegations that the aim of the dismissals was to intimidate the trade union organization, as the voluntary retirement programme referred to by the complainant organization was not intended for the category of employees to which the dismissed workers belonged.
5. 439. The Committee observes that it appears from the copies enclosed by the Government that the trade union organization was informed of the dismissal of the three workers on the same day as the workers themselves. However, the Committee also observes that, under the ruling of the Constitutional Court, the purpose of the decision to order the ETB to notify the trade union organization in advance of any dismissal without due cause was “so that the organization could act to protect and represent its collective interests and those of its members”. The Committee considers that, in notifying the trade union organization and the dismissed workers at the same time, the enterprise did not allow the trade union organization to exercise properly its right of protection and representation. The Committee regrets that the enterprise did not take due consideration of the judicial decision and firmly expects that, in future, the enterprise will consult with the trade union organization sufficiently in advance, should it have to dismiss unionized workers without good cause.
6. 440. Moreover, given that the real motives for the dismissal of the three unionized members are unknown and that, according to the complainant organization, their purpose was to intimidate the trade union and was therefore anti-union in nature, the Committee requests the Government to take the necessary measures to ensure that an independent inquiry is carried out and, if it is found that the dismissals had anti-union motives, the workers are reinstated without delay and paid the wages owed and appropriate compensation.