Rapport intérimaire - Rapport No. 355, Novembre 2009

1. 433. The Committee last examined this case at its meeting in May 2008 and presented an interim report to the Governing Body [see 350th Report, paras 450–486, approved by the Governing Body at its 302nd Session].
2. 434. In a communication dated 2 June 2009, the National Union of State Employees of Colombia (UTRADEC, formerly UNETE) sent new allegations.
3. 435. The Government sent its observations in communications dated 15 and 23 September 2008 and 9 March 2009.
4. 436. 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), 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. 437. On its previous examination of the case in May 2008, the Committee made the following recommendations [see 350th Report, para. 486]:
2. (a) In relation to the allegations made by the Joint Union of Workers in Decentralized Institutions of the Municipality of Buenaventura (SINTEDMUNICIPIO) and UNETE concerning the process of restructuring in the municipality of Buenaventura, in the context of which various union leaders were dismissed without their trade union immunity being lifted, observing that the Government has not specifically indicated whether Fermín González, Vinicio Eduardo Góngora Fuenmayor, Luis Enrique Rodallegas and María Eufemia Bravo Hurtado have taken the corresponding legal action and have been reinstated, the Committee requests the Government to provide information in this regard, and particularly to provide copies of rulings ordering or refusing reinstatement.
3. (b) With reference to the allegations made by the CGT and SINFUMIPROS relating to the refusal of the administrative authority to register SINFUMIPROS, the Committee, recalling that, in accordance with Article 2 of Convention No. 87, all workers without distinction whatsoever shall have the right to establish organizations of their own choosing, invites the union to appeal to the administrative disputes mechanism against the decision to refuse registration and requests the Government, taking into account the amparo (protection of constitutional rights) ruling protecting the right to organize and until the judicial authorities rule on the matter, to take the necessary measures for the immediate registration of the union. The Committee requests the Government to keep it informed in this respect.
4. (c) The Committee requests the Government to furnish its observations without delay in relation to the alleged transfer of Mauricio Lobo Rodríguez and Gustavo Vargas Burbano, members of the Executive Board of SINTRAOFICAJANAL, the suspension of the check-off of union dues, the offering of benefits to workers to give up union membership and the refusal to engage in collective bargaining alleged by the UNETE.
5. (d) With regard to the allegations of ASEMIL on the refusal to bargain collectively with public employees, recalling that collective bargaining in the public sector allows for special modalities of application, the Committee requests the Government to take the necessary measures to ensure respect for the right of public servants to collective bargaining in conformity with the provisions of the Conventions ratified by Colombia and to keep it informed of any development in this respect.
6. (e) With regard to the allegations relative to the anti-union persecution and harassment of trade union leaders and members, the Committee requests the complainant organization to specify the identity of the trade union leaders and members affected by the disciplinary proceedings so that the Government can confirm whether the proceedings in question were unrelated to anti-union grounds.
7. (f) With regard to the allegations relative to the refusal of the Ministry of Social Protection to register the executive board and the amendments to the statute of ASEMIL, the Committee requests the Government to indicate the reasons given by the administrative authority in order to refuse the registration of the executive board and the amendments to the statute of ASEMIL in the trade union registry. The Committee requests the Government to amend the legislation so as to bring it into conformity with Conventions Nos 87 and 98.
8. B. New allegations
9. 438. In its communication dated 2 June 2009, UTRADEC sent new allegations which detailed that in March 2009 it undertook a work stoppage for non-payment of wages and health and pension contributions in the enterprise CAJANAL EICE. On 19 March the work stoppage was lifted prior to the signing of a document in which the enterprise CAJANAL EICE undertook to abstain from initiating or proceeding further with any actions, sanctions or reprisals against official workers or employees of subcontractors while respecting the terms of the latter group’s contracts, both with regard to the duration of those contracts and their agreed object, with work tasks to be allocated in the usual manner. The enterprise CAJANAL EICE also undertook to pay the value of the pensions, medical insurance and wages between 25 and 26 March 2009. Finally, it undertook to pay the sums owed to the federations and confederations and in the future to comply fully and strictly with the collective labour agreement in force.
10. 439. The complainant organization states that the enterprise CAJANAL EICE has failed to comply with any of the undertakings obtained. On the contrary, the enterprise launched a smear campaign targeting the workers.
11. 440. The complainant organization adds that the enterprise CAJANAL EICE has not complied with the obligations contained in the collective agreement consisting of overtime payments and granting of other contractual benefits.
12. 441. The complainant organization also alleges that the enterprise seized and removed both the trade union’s archive and the computer owned by the president of the trade union organization. In addition, the enterprise required the president to take leave, thus being prevented from representing her members.
13. C. The Government’s response
14. 442. In its communications dated 15 and 23 September 2008 and 9 March 2009, the Government sent the following observations.
15. 443. With regard to clause (a) of the recommendations, the Government states that:
16. – the Fifth Labour Court of the Buenaventura Circuit ordered the reinstatement of Vinicio Eduardo Góngora Fuenmayor in a ruling dated 26 June 2002. In the second instance the High Court of the Judicial District of Guadalajara de Buga issued a ruling annulling the decision of the Fifth Labour Court but held that it was not competent to rule on the grounds of the case;
17. – with regard to Fermín González, the Third Labour Court of the Buenaventura Circuit ordered the reinstatement of Mr González through a ruling dated 3 October 2002. In the second instance, the High Court of the Judicial District of Guadalajara de Buga held that it had no competence to rule on the grounds of the case. Mr González therefore decided to make use of the amparo mechanism, but to no avail;
18. – as to Mr Luis Enrique Rodallegas, in a ruling of 13 December 2002, the Second Labour Court of the Buenaventura Circuit declared that the trade union immunity action was prescribed. This ruling was upheld by the High Court of the Judicial District of Guadalajara de Buga. Mr Rodallegas lodged a tutela (protection of constitutional rights) action with the Supreme Court of Justice, but to no avail;
19. – Mr Rafael Cuero, Mr Luis Emilio Chávez and Mr Miguel Satiesteban, directors of SINTEDMUNICIPIO, managed to obtain their reinstatement together with compensation through the use of an amparo action;
20. – with regard to Ms Ana Alegría Valencia, a SINTEDMUNICIPIO director, the amparo appeal was not granted. Documents relating to Ms Valencia’s case are attached;
21. – the Government attaches copies of rulings issued by the Third Labour Court of the Buenaventura Circuit relating to Mr Fermín González, as well as the ruling issued by the High Court of the Judicial District of Guadalajara de Buga and those issued by the Second Labour Court of the Buenaventura Circuit and the High Court of the Judicial District of Guadalajara de Buga regarding Mr Luis Enrique Rodallegas.
22. 444. As to clause (b) of the recommendations, the Government reiterates that it abides by the decision handed down by the administrative disputes mechanism.
23. 445. The Government refers to the decision contained in the ruling of 2 March 2007, issued by the Supreme Court of Justice, which ruled on the amparo action lodged by the trade union organization. The abovementioned ruling stated the following:
24. … based on the foregoing information it is possible to establish that the circumstances surrounding the establishment of the trade union entail a risk to employment stability which is of interest in this case because it affects a number of the founding members and undermines any possibility of starting a trade union organization. As a result, the court of appeal judge is obliged to take steps to protect the right to organize, currently in its early stages, that is to say, at the registration stage.
25. However, this should be carried out while respecting the subsidiary nature of the tutela which cannot override the decisions of the general jurisdictional courts (the competent bodies with regard to ruling definitively on the administrative act).
26. In order to avoid irreparable harm, the tutela ruling issued by the court of appeal judge will stand, but only temporarily, in order to allow the trade union organization to lodge the corresponding administrative appeal against the rulings issued by the Ministry of Social Protection refusing registration.
27. Consequently, the tutela decision regarding the right to organize will be confirmed, with the abovementioned clarification, and will remain in effect until the judicial authority has ruled on the refusal by the Ministry of Social Protection to register the trade union organization.
28. 446. According to the Government, it can be inferred from the above information that the Supreme Court of Justice upheld the right to organize in the second instance, while respecting the competence attributed to the judicial authority, the competent body in terms of checking the legality of the decisions taken by the administration (in this particular case the rulings issued by the Ministry of Social Protection). The Government considers that as a consequence no more action should be taken until the judicial authority has issued a ruling. Thus, it states that it is extremely important that the trade union organization reveal the identity of the court with which it lodged the corresponding action, so that inquiries may be made concerning the state of the proceedings.
29. 447. As to clause (c) of the recommendations, regarding the observations on the transfer of Mauricio Lobo Rodríguez and Gustavo Vargas Burbano, members of the Executive Board of SINTRAOFICAJANAL, the Government states that, in accordance with the information provided by the general manager of CAJANAL EICE, the transfers were undertaken for administrative reasons, the main aim being to reorganize the enterprise in order to render procedures more streamlined, uniform and coordinated. According to the general manager, at no time have the trade union directors been adversely affected by the transfers, with the only step taken being a move to different premises. Previously CAJANAL EICE had several offices but, in the interests of streamlining procedures, as previously stated, all the sections were relocated to a single office.
30. 448. The Government states that, furthermore, the Office for Cooperation and International Relations will request information regarding the administrative labour investigation conducted regarding CAJANAL EICE for violations of the right to organize and freedom of association, and as soon as a response has been obtained it will be sent.
31. 449. With regard to the check-off of union dues, in accordance with the information provided by the general manager of CAJANAL EICE, the check-off is currently being undertaken.
32. 450. Finally, the general manager stated that the refusal to negotiate with the minority trade union was because, at the time when talks began, the majority trade union was SINTRAOFICAJANAL and the minority trade union was SINTRASS. In the light of this status, before beginning any negotiations, the Legal Office of the Ministry of Social Protection was consulted and issued the following opinion: “should there exist or come into existence various trade unions, the trade union representing at least half of the workers in the enterprise shall represent all of the workers for the purposes of collective bargaining, in so far as clause 2 of section 357 of the Substantive Labour Code, subrogated by section 26 of Decree Law No. 2351 of 1965, is currently in force, a situation that will have to be determined either by CAJANAL EICE or by the Ministry of Social Protection through the Territorial Directorate in order that the corresponding bargaining process may proceed”. Thus, the majority trade union within an enterprise enjoys the power to denounce collective agreements and present lists of demands in order to give rise to a labour dispute on behalf of the workers of the enterprise and it is only under these circumstances that an employer is obliged to come to the negotiating table. The general manager states that the administration respected the regulations in force at the time of the collective bargaining process, signing the collective agreement currently in force within the enterprise.
33. 451. The Government states that, in accordance with the communication sent by the Coordinator of the Prevention, Inspection, Monitoring and Control Group of the Cundinamarca Territorial Directorate regarding CAJANAL EICE, an administrative labour inquiry was initiated into the refusal to negotiate regarding a list of demands. Resolution No. 002627 of 25 August 2008 was consequently issued abstaining from taking any administrative measures against the abovementioned enterprise. This decision was based on CAJANAL EICE’s compliance with domestic legislation. The Government states that the decision does not yet stand, given that legal appeals have been lodged.
34. 452. As to clause (d) of the recommendations regarding the refusal to bargain collectively in the public sector, the Government took careful note and states that steps are being taken in this regard.
35. 453. As to section (e), the Government hopes to receive the corresponding information so that it may proceed accordingly.
36. 454. As to clause (f), the Government states that the Cundinamarca Territorial Directorate of the Ministry of Social Protection ordered the registration of the new Executive Board of ASEMIL through resolution No. 001890 of 10 June 2008 and the deposit of the amendments to the statute of ASEMIL on 21 June 2007.

D. The Committee’s conclusions

1. 455. The Committee notes the new allegations and the Government’s observations regarding the issues pending.
2. 456. With regard to clause (a) of the recommendations pending regarding the allegations presented by SINTEDMUNICIPIO and UTRADEC (formerly UNETE) concerning the restructuring process in the municipality of Buenaventura, within the framework of which various trade union leaders (Fermín González, Vinicio Eduardo Góngora Fuenmayor, Luis Enrique Rodallegas and María Eufemia Bravo Hurtado) were dismissed without the corresponding lifting of trade union immunity, the Committee notes that:
   • – in the case of Fermín González, according to the Government’s response and the copies of the rulings attached, the Third Labour Court of the Buenaventura Circuit ordered his reinstatement on 3 October 2002. However, not being fully satisfied with the ruling, Mr González appealed but the High Court of the Judicial District of Guadalajara de Buga held that it had no competence to rule on the grounds of the case. Mr González initiated an amparo action, but to no avail. In this regard, taking into account the fact that the District High Court did not issue a ruling regarding the appeal lodged, the Committee requests the Government to ensure compliance without delay with the ruling ordering the reinstatement of Mr Fermín González should it still be in force;
   • – in the case of Mr Vinicio Eduardo Góngora Fuenmayor, according to the attached court rulings, the Labour Chamber of the High Court of Buga revoked the ruling in the first instance ordering his reinstatement. The revocation ruling was upheld by the Penal Chamber of Cassation of the Supreme Court of Justice;
   • – in the case of Mr Luis Enrique Rodallegas, according to the Government and the copies attached, the judicial authority held that the trade union immunity action was prescribed in the first and second instances, with Mr Rodallegas lodging a tutela action to no avail;
   • – in the case of Ms María Eufemia Bravo Hurtado, according to the documents provided, the Second Labour Court of the Circuit ordered her reinstatement, a ruling that was subsequently revoked by the Labour Decision Chamber of the High Court of the Judicial District. Ms Bravo Hurtado lodged a tutela action with the Labour Appeals Chamber of the Supreme Court of Justice, which was dismissed as unfounded. This ruling was in turn upheld by the Penal Chamber of Cassation of the Supreme Court of Justice.
3. 457. With regard to clause (b) of the recommendations regarding the allegations presented by the CGT and SINFUMIPROS regarding the administrative authority’s refusal to register SINFUMIPROS, the Committee notes that the Government states that, in light of the tutela ruling issued by the Supreme Court of Justice, the trade union organization cannot be registered until the judicial authority has issued a ruling, and requests the complainant organization to reveal the identity of the court with which it lodged the corresponding action. In this regard, the Committee recalls that upon last examining the case it noted a Supreme Court of Justice ruling of 2 March 2007 issued by upholding the tutela granted by the judge in the first instance who ordered that the trade union organization be registered temporarily in order to allow the trade union organization to lodge an administrative appeal against the rulings issued by the Ministry of Social Protection refusing registration. The Committee observes in this regard that in similar cases the Constitutional Court (in rulings Nos 465/08 and 695/08) considered that registration with the Ministry of Social Protection of the establishment of trade union organizations “is purely for information purposes, not authorizing the abovementioned Ministry to carry out prior checks on the contents of the founding document”. In these circumstances, the Committee requests the Government, taking into account this recent case law, to take the necessary measures to ensure the immediate registration of SINFUMIPROS. The Committee requests the Government to keep it informed in this regard.
4. 458. As to clause (c) of the recommendations regarding the transfer of Mauricio Lobo Rodríguez and Gustavo Vargas Burbano, members of the Executive Board of SINTRAOFICAJANAL, the suspension of the check-off of union dues, the offering of benefits to workers to give up union membership and the refusal on the part of CAJANAL EICE to engage in collective bargaining alleged by UTRADEC (formerly UNETE), the Committee notes that, according to the Government, in accordance with the information provided by the manager general of the enterprise, Mauricio Lobo Rodríguez and Gustavo Vargas Burbano were transferred for administrative reasons as part of a process aimed at bringing all CAJANAL’s different sections together in one office and that trade union leaders were not adversely affected by this move. The Committee notes that according to the enterprise, the check-off of union dues is being undertaken. The Committee further notes that the Government states that it will request information regarding the administrative labour investigation conducted into CAJANAL EICE for violations of the right to organize. The Committee requests the Government to keep it informed in this regard.
5. 459. With regard to the alleged refusal by the enterprise to bargain collectively, the Committee notes that the Government states that an administrative labour inquiry was initiated as a result of which resolution No. 2627 of 25 August 2008 was issued absolving the enterprise, and adds that, in accordance with the law, the enterprise signed a collective agreement which is currently in force.
6. 460. With regard to the new allegations presented by UTRADEC (formerly UNETE) regarding non-compliance with the collective agreement and accords signed by CAJANAL EICE, including the failure to pay overtime and the refusal to grant other contractual benefits referred to in the collective agreement, the seizure and removal of the trade union archive and the computer of the president of the trade union organization, along with pressuring the president to take leave, thus preventing her from representing her members, the Committee observes that the Government has not sent its observations in this regard and requests it to do so without delay.
7. 461. As to clause (d) of the recommendations regarding the allegations presented by ASEMIL on the refusal to bargain collectively with public employees, the Committee notes that the Government states that it is taking steps in this regard. Observing the recent adoption of Decree No. 535 of 24 February 2009 governing section 416 of the Substantive Labour Code (in light of Acts Nos 411 and 524 approving Conventions Nos 151 and 154 at national level) and establishing the bodies within which negotiation between trade union organizations of public employees and public sector bodies will be advanced, the Committee requests the Government to keep it informed of developments in the wake of the adoption of the abovementioned Decree and as to whether ASEMIL has been able to participate in the negotiation processes.
8. 462. With regard to clause (e) of the recommendations regarding the anti-union persecution and harassment of trade union leaders and members, the Committee notes that the Government states that it has not as yet received the information from ASEMIL on the identity of the trade union leaders and members affected by the disciplinary proceedings which would allow the Government to confirm that the proceedings in question are unrelated to anti-union grounds. In these circumstances, unless the complainant organization presents additional information in this respect, the Committee will not pursue its examination of these allegations.
9. 463. With regard to clause (f) of the recommendations regarding the refusal of the Ministry of Social Protection to register the Executive Board and the amendments to the statute of ASEMIL, the Committee notes with interest that the Government states that the Ministry of Social Protection ordered the deposit of the amendments to the statute of ASEMIL on 21 June 2007 and the registration of the new Executive Board of ASEMIL on 10 June 2008.