Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 363, Mars 2012

Effect given to the recommendations of the Committee and the Governing Body

1. 38. The Committee last examined this case, which concerns allegations of anti-union dismissals in the Cali Municipal Enterprises (EMCALI) (with regard to which the Committee requested the Government to consider taking the necessary measures to ensure the reinstatement of the 45 trade union members and six union leaders dismissed by EMCALI) at its meeting in November 2010 [see 358th Report, paras 47–49]. The Committee recalls that on that occasion it noted with interest that, thanks to a preliminary contacts mission, the parties have reached an agreement whereby: (1) in the light of the Committee’s recommendation in its 357th Report, which SINTRAEMCALI welcomes, the parties agree to establish a round table to explore methods of consultation and negotiation on Case No. 2356, for which EMCALI undertakes to present a proposal; (2) the parties agree to hold a first meeting on 14 July 2010 and to hold as many meetings as necessary to reach an agreed solution; and (3) in witness of their desire to establish a permanent dialogue, the parties undertake to discuss all relevant labour and trade union issues together. Noting that the trade union organization SINTRAEMCALI had informed that during the last meeting with the enterprise EMCALI, a proposal was made which did not correspond to the claims of the trade union since it did not include the reinstatement of the dismissed workers, and that it was willing to continue to participate in the mediation process, with the assistance of the ILO, until a final agreement was reached, the Committee requested the Government to consider appointing a mediator with the aim of finding a workable solution to this long outstanding case in line with the Committee’s previous recommendations and to keep it informed of the progress made in this regard.
2. 39. In a communication dated 25 October 2011, the Government states that: (1) the enterprise expresses its willingness to continue to engage in dialogue; (2) it should be noted that the case of the 51 dismissals is currently being processed by the ordinary courts and that it is these courts that must order any reinstatements since administrative officials are not legally entitled to do this; (3) the trade union brought an action for the protection of constitutional rights (tutela proceedings) before the Eleventh Criminal District Court of Cali against EMCALI for violating the fundamental rights to work, to organize and to freedom of association by failing to comply with the recommendations issued by the Committee on Freedom of Association and supported by the Governing Body; (4) EMCALI filed an appeal and the court rejected the trade union’s tutela proceedings (the trade union appealed against the ruling which is currently being examined by the second criminal circuit court); and (5) it respects the judiciary’s decisions under the separation of powers and reiterates its commitment to continue to engage in dialogue with a view to settling the current disagreements between EMCALI and SINTRAEMCALI.
3. 40. In its communication of 15 December 2011, the complainant organization indicates that: (1) the Eleventh Criminal Circuit Court issued a second instance ruling on 13 October 2011 overturning the first instance ruling and thereby issuing a tutela ruling ordering the enterprise to reinstate the union leaders and affiliated workers to the positions that they had held previously or to other positions of equivalent characteristics and pay; (2) it should be noted that this is a second instance ruling and that tutela proceedings only have two instances, consequently compliance with the court order must be immediate; (3) after the 48 hours established by the judge had passed and the enterprise had not complied with the second instance ruling, the complainant organization filed proceedings for contempt of court before the Eleventh District Criminal Court of Cali to guarantee the protection of the fundamental rights established under that ruling; (4) the enterprise is insisting on a review of the tutela ruling before the Constitutional Court that decided to allow the ruling and this appeal process can take up to six months; and (5) as a result of the enterprise’s failure to comply with the tutela ruling (the enterprise manager has been found in contempt of court by an interlocutory judgment of 27 December 2011), some of the 51 dismissed workers went on a hunger strike. The complainant also indicates that in June 2011, prior to this second instance tutela ruling, the administrative authority, represented by the Deputy Minister of Labour, indicated that it could not find any valid reason why at least the workers that had won the ordinary labour proceedings on appeal had not been reinstated, and it did not understand why the EMCALI management had chosen to lodge an application for judicial review, which was unlikely to receive a favourable ruling in view of the rulings handed down by the first and second instance judges. Lastly, the complainant organization requests the Committee and the competent ILO bodies to send a direct contacts mission to the country to meet the parties concerned and to emphasize and insist on the importance of compliance with the Committee’s recommendations and, in this case, with the decisions of the Colombian courts.
4. 41. The Committee notes this information and, in particular, notes with interest the second instance tutela ruling ordering the reinstatement at the EMCALI enterprise of the SINTRAEMCALI union leaders and members, in compliance with the Committee’s recommendations. The Committee observes that the enterprise has filed further judicial proceedings against the second instance court order. Given these circumstances, and underlining that these workers were dismissed in 2004, the Committee recalls that “justice delayed is justice denied” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 105] and firmly expects that the Constitutional Court will hand down a decision without delay on the second instance tutela ruling. The Committee recalls its previous recommendations concerning the reinstatement of these trade unionists and requests the Government to ensure their implementation. The Committee requests the Government to keep it informed in this respect.