Complaints against the Government of Colombia
-- the International Confederation of Free
Trade Unions (ICFTU)
-- the Latin American Central of Workers (CLAT) and
-- the World Federation of Trade Unions (WFTU)
Allegations: Murders and other acts of violence against trade
union officials and members, acts of anti-union discrimination and
refusal to reorganize the representativity of a trade union organization
248. The Committee last examined Case No. 1761 at its March 1995 meeting [see 297th Report, paras. 451-464]. The Latin American Central of Workers (CLAT) sent additional information in communications dated 2 and 8 May and 31 July 1995. The Government sent partial observations in communications dated 29 August and 9 October 1995.
249. The Committee last examined Case No. 1787 at its June 1996 meeting [see 304th Report, paras. 159-178]. The International Confederation of Free Trade Unions (ICFTU) subsequently submitted additional information in communications dated 20 and 28 May and 18 July 1996.
250. The complaint corresponding to Case No. 1896 is contained in a communication from the Latin American Central of Workers (CLAT) dated 7 May 1996.
251. At its meeting in December 1995, the Committee of Experts on the Application of Conventions and Recommendations made an observation on the application by Colombia of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and requested the Government to take measures to bring its legislation in line with the Convention. During the discussion of the case concerning the application of this Convention by Colombia at the meeting of the Conference Committee on the Application of Standards in June 1996, the Minister of Labour and Social Security, Orlando Obregón Sabogal, invited the ILO to carry out a mission in his country with a view to promoting trade union rights and social dialogue. Subsequently, the Government decided to extend the mandate of the mission to the cases pending before the Committee on Freedom of Association of the Governing Body (Cases Nos. 1761, 1787 and 1896).
252. The above-mentioned mission was carried out from 7-11 October 1996 by Santiago Pérez del Castillo, Professor of Labour Law from the University of Uruguay, accompanied by Horacio Guido, official of the Freedom of Association Branch of the International Labour Standards Department and Luis Zamudio, specialist in international labour standards of the Multidisciplinary Advisory Team based in Lima, Peru [see the report of the mission in Annex II]. The Government submitted observations on the three cases pending to the mission.
253. Colombia has ratified both 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).
Case No. 1761
Previous examination of the case
254. During the previous examination of the case, when it dealt with allegations concerning the murder of trade union officials and the judicial proceedings of trade unionists, the Committee made the following recommendations [see 297th Report, para. 464]:
Recalling that the rights of workers' and employers' organizations can be exercised only in a climate that is free from violence, pressure or threats of any kind against these organizations' leaders and members, and that it is the responsibility of governments to guarantee respect for this principle, the Committee urges the Government to take steps to ensure that judicial inquiries are carried out immediately to clarify all the alleged facts, determine responsibilities and punish the authors of the assassination of the trade union officials Rodrigo Rojas Acosta, Alberto Alvarado, Tina Soto Castellanos and Rosario Moreno, as well as the assassination of Hugo Zapata Restrepo and the serious wounds sustained by Carlos Posada during the search of the headquarters of the Single Federation of Workers of Antioquía (FUTRAN). The Committee requests the Government to keep it informed of the outcome of each of the inquiries undertaken, and of the outcome of inquiries being conducted into the assassination of trade union officials Perea Israel and Camelo Reinaldo Miguel;
The Committee requests the Government to keep it informed of the outcome of the current trials of Mr. Luna, Mr. Chaparro and Mr. Patiño and to send it the text of the judgements handed down.
255. Similarly, given the failure of the Government to reply to certain allegations submitted, the Committee made the following recommendation:
The Committee requests the Government to send complete observations on the following allegations as soon as possible: (1) the arrest of eight union officials (Ortega García Jorge Luis, Tovar Arrieta Domingo Rafael, Triviño Flavio, Orozco Nassam Luis Ferdando, Martínez César, Quiceno Evelio, Escobas Héctor and Ronancio Germán) on 12 February 1994 in Mesitas; (2) the expulsion of workers from the headquarters of the Construction Workers' Trade Union (SINDICONS) on 11 February 1994 in Cali; (3) the carrying out of visits by members of the state security to trade union meetings and headquarters, for example the Congress of the National Federation of Construction and Cement Workers, which was held in Bogotá between 9 and 12 February 1994; and (4) the activities of paramilitary groups in Medellín that are preventing the normal exercise of trade union activities.
Additional information submitted by the CLAT
256. In its communications dated 2 and 8 May 1995, the CLAT alleges the murders of two trade union officials: Guillermo Alonso Benítez Zapata, legal adviser of the Workers' Union of Olimpo Ltd. (SINTRAOLIMPO), on 26 April 1995 in front of his home in the town of Chigorobo, Antioquía, and Marco Julio Martínez Quiceno, executive of the Workers' Union of Skanska, on 3 May 1995, at his home in the municipality of Tierralta, Córdoba.
257. In its communication of 31 July 1995, the CLAT alleges that the trade union official, Fernando Alfonso Davila Girón, president of the State Enterprise Workers' Union of Tuluá, disappeared on 26 November 1994 and that his relations announced his disappearance to the First Office of the General Prosecutor of Tuluá (anti-abduction unit).
The Government's reply
258. In its communications dated 29 August and 9 October 1995, the Government states that the Office of the General Prosecutor of the Nation had carried out inquiries in connection with the disappearance of Fernando Alfonso Davila Girón, that these were at the initial stage and that it would, in due course, communicate all information it might have been able to obtain in this respect.
259. The Government handed over to the mission documentation provided by the Office of the General Prosecutor concerning the allegations on acts of violence against trade union officials and members which, in particular, contained the following information:
Case No. 1787
Previous examination of the case
260. During its previous examination of the case, when examining allegations concerning the murders and disappearances of/and other acts of violence against trade union officials and members, the Committee made the following recommendations [see 304th Report, para. 178(a)]:
... expressing its deep concern at the increasing climate of violence in the country and the large number of murders and acts of violence against trade union officials and members, the Committee urges the Government to take immediately the necessary steps for the initiation of judicial investigations to elucidate all the alleged murders, threats and other acts of violence, establish who was responsible for them and punish the guilty parties. The Committee requests the Government to keep it informed in this respect. Furthermore, the Committee urges the Government to intensify its efforts to provide effective protection for all the trade union officials and members who have received threats. The Committee requests the Government to provide information on all the cases referred to in the annex (which is reproduced here below):
Allegations pending in March 1995
Death threats and attempted murder:
Detention and raids on homes:
Raids on union headquarters, telephone tapping,
surveillance of trade union members:
Additional information presented by the complainant organization
in a communication dated 20 October 1995
Physical aggression and police repression:
261. Furthermore, when examining allegations on anti-union discrimination, the Committee made the following recommendations [see 304th Report, para. 178(b), (c) and (d)]:
... recalling that protection against anti-union discrimination must be provided, in particular against all acts to dismiss workers or prejudice them in any other way by reason of their trade union membership or activities, the Committee requests the Government to take the necessary steps to carry out an immediate investigation into the ALFAGRES S.A. enterprise and, in the event that the alleged acts of discrimination are proven, to reinstate the trade union officials who were dismissed, and to take steps to put an end to the threats or any other form of prejudice against workers belonging to the trade union. The Committee requests the Government to keep it informed in this respect;
... with regard to the Trade Union of Government and Public Administration Workers (SINTRHA), the Committee requests the Government to send, without delay, its observations on the allegations concerning the suppression of the posts of trade union officials and members, encouragement by the Government in public administration of an anti-union campaign to intimidate workers who wished to join the union, and the dismissal of members of the Executive Committee of the SINTRHA enterprise. The Committee requests the complainant organization to send its comments on the statement made by the Government concerning the refusal to register the amendments to the SINTRHA statutes; and
... recalling that the Government was previously requested to take the necessary measures to enable trade union leaders and members of the SINTRATEXTILIA trade union dismissed for their legitimate trade union activities to secure reinstatement in their posts, the Committee urges the Government to take measures to this end and to keep it informed in this respect.
Additional information from the complainant
262. In its communications dated 20 and 28 May and 18 July 1996, the ICFTU alleges various murders of trade union officials and members. In particular, the complainant organization states that:
The Government's reply
263. In its communication of September 1996, the Government once again states that inquiries are being carried out in connection with the death of the trade unionists Luis Noguera Cano and Eliecer Ojeda Cano. Furthermore, the Government points out that a person has been detained and is being tried in connection with the inquiries into the death of Luis Noguera Cano.
264. The Government handed over to the mission much information on acts of violence against trade union officials or trade union members, or against trade union premises. In particular, the Government states that judicial inquiries have begun in connection with the following murders of trade union officials or trade union members: (1) Antonio Moreno; (2) Manuel Ballesta; (3) Francisco Mosquera Córdoba; (4) Carlos Arroyo de Arco, (5) Francisco Antonio Usuga; (6) Pedro Luis Bermúdez Jaramillo; (7) Armando Umanes Petro; (8) William Gustavo Jaimes Torres; (9) Ernesto Fernandez Pezter.
265. In addition, the Government states that inquiries are being carried out in connection with the explosion at the headquarters of the National Construction Workers' Trade Union (SINDICONS) in Medellín.
266. As regards the alleged murders of the trade union members belonging to SINTRAINAGRO, Oriol Chaverra, Hernán Correra, Medardo Cuestas, Manuel Márquez, Pedro Barbosa, Omar Casarubio, Fernando Pérez and Amin Palacio, the Government states that these persons are alive and that they have not lodged any complaints that attempts have been made on their lives.
267. Concerning the allegations on the arrest of and death threats made against the trade union officials Domingo Tovar and Jorge Ortega García, the Committee analyses the Government's comments within the framework of Case No. 1761.
268. Concerning the allegations that had remained pending on acts of anti-union discrimination, the Government informed the mission of the following:
Case No. 1896
The complainant's allegations
269. In its communication dated 7 May 1996, the Latin American Central of Workers (CLAT) states that on 23 February 1996 the Ministry of Labour drew up Resolution No. 00431 referring to a census carried out in the National Telecommunications Enterprise of Colombia (TELECOM) concerning the representativity of trade union organizations operating within this enterprise. According to the complainant organization, the resolution stated that the Trade Union of Workers of the National Telecommunications Enterprise (SITTELECOM) had a total of 1,779 members as of 30 November 1995; this trade union rejected the census carried out by the Ministry of Labour, alleging that it had 4,471 active members (the enterprise upholds these figures by providing the list of check-offs for trade union contributors). The trade union organization explains that it should be borne in mind that the other organization representing TELECOM workers is the TELECOM Technicians Association (ATT), an organization which only represents technicians. SITTELECOM, on the other hand, covers various types of workers in the enterprise. In the census, the ATT is represented as being the majority organization in terms of membership (1,804) and therefore authorized by law to discuss the list of claims and sign a new collective labour agreement. Finally, the complainant organization alleges that the official figures presuppose the modernization of SITTELECOM whilst depriving it of the legitimate right to exercise its trade union prerogatives.
The Government's reply
270. The Government informs the mission that on 23 February 1996 the Ministry of Labour and Social Security issued Resolution No. 00431 through the Labour Department, which stated that the Union of Workers of the National Telecommunications Enterprise "SITTELECOM" had 1,779 members as at 30 November 1995 and that the TELECOM Technicians Association (ATT) had 1,804 members, out of a total of 8,710 workers employed by the National Telecommunications Enterprise TELECOM. The Government adds that these figures are not final but it was necessary to draw them up because of the appeal lodged by the trade union organization SITTELECOM. The Government points out that the census was carried out at the request of the TELECOM enterprise in order to establish the trade union representation with a view to collective bargaining, in accordance with the provisions contained in article 357, paragraph 2, of the Labour Code which states that when a basic trade union and an industrial trade union exist alongside each other within the same enterprise, the representation of the workers for all purposes of collective bargaining will lie with the trade union grouping the majority (half minus one) of the workers in the enterprise.
271. Furthermore, the Government points out that this trade union census was carried out whilst taking account of the following:
272. The Government stresses that the fact that the employer submits a list of workers paying trade union dues does not automatically mean that those paying the contributions are a member of the trade union because, under section 471 of the Labour Code, when a trade union is party to a collective agreement and its members account for more than a third of the workers in the enterprise, the agreement applies to all workers in the enterprise -- irrespective of whether or not they are a member of the trade union; furthermore, even those not belonging to the trade union must pay a contribution to the trade union to benefit from the agreement. The Ministry of Labour and Social Security's task was to conduct a census and determine the number of workers duly belonging to each trade union organization, without making any pronouncement on the subsequent right to bargain collectively. The Government states that the figures in the census reflect the number of members as at 30 November 1995 and that, to date, it is not able to account for any further changes in membership or withdrawal of membership in either of the trade unions.
273. The Committee notes the report of the representative of the Director-General, Professor Santiago Pérez del Castillo, of the mission carried out in Colombia from 7 to 11 October 1996, and wishes to thank him for the work he has accomplished. The Committee also thanks the Government, the authorities and the social partners for their full cooperation with the representative of the Director-General throughout the mission. Furthermore, the Committee takes note of the written information provided by the Government on the various cases and the various Bills submitted to Congress to bring the legislation in line with Conventions Nos. 87 and 98 and to ratify Conventions Nos. 151 and 144 which has been submitted to the Committee of Experts on the Application of Conventions and Recommendations.
274. First, before analysing the allegations and observations communicated by the Government in connection with each case in particular, the Committee feels bound to express its grave concern at the allegations which refer to a great extent to violent murder, disappearances and other acts of violence against trade union officials and members, as well as raids on trade union headquarters and trade union members' homes. The Committee recalls that it has for many years been examining cases on serious acts of violence against trade union officials and members in Colombia. It deeply regrets to note that the violence does not seem to have diminished but that, on the contrary, it seems to have been growing during the past few years, which once again has affected trade unionists.
275. The Committee notes from the mission report that, against the complex and serious climate of violence prevailing in Colombia, there are a series of causes for concern recognized by the majority of those interviewed by the representative of the Director-General: (i) the violence is endemic to all sectors of society (the figures given in connection with murders committed in 1995 vary between 25,000 and 30,000), but the trade union movement has been subject to serious attacks. This is a situation that has been dragging on for 45 years in Colombia and is compounded by the fact that the presence of the State authority is widely dispersed in some regions of the country; (ii) this violence may be attributed to the guerrilla movement, drug traffickers, paramilitary groups -- some of which act with the acquiescence and active participation of the state security forces -- and common criminals; (iii) a very large number of cases of acts of violence remain unsolved, which gives an added incentive to repeat them and to commit further violations of human rights (few are judged, proceedings are slow, general prosecutors cannot or dare not carry out investigations because their lives are endangered), and (iv) it is almost impossible to provide protection to trade union officials and members threatened. The Committee stresses the total ineffectiveness of the judicial system and the intervention of a separate military jurisdiction concurrently with the civil system.
276. The Committee notes that according to the mission report, the Government states that it has taken a number of positive measures to put an end to impunity. In particular, the Committee notes with interest the following measures adopted: (i) the establishment of the victim and witness protection programme of the Office of the General Prosecutor; (ii) the setting up of a National Human Rights Unit whose competence extends to, amongst other things, murders of trade union officials who have been presumably killed on account of their trade union activities; (iii) the planning within the Ministry of the Interior of a special administrative unit of human rights which will have a special section for the protection of persons who have received threats; and (iv) the setting up of a ministerial committee to examine cases on violations of human rights to verify the allegations which, in the event of finding the allegations are well-founded and of the responsibility on the State to order the payment of compensation. Taking note of these measures, the Committee stresses that the mission report reveals that the number of victims of violence is extraordinarily high and that the failure of judicial proceedings to shed light on the facts gives rise to an extremely high degree of impunity. In addition, the Committee profoundly deplores the fact that not one of the numerous allegations before it has resulted in the guilty party being punished. Finally, the Committee notes with interest the climate of social dialogue which the Government is trying to create, emphasizing the importance of a system of ethics and a new culture which, while it does not ignore differences or conflict, gives priority to dialogue and understanding.
277. Finally, the Committee notes with extreme concern that the mission report draws attention to the present increase in the number of paramilitary or self-defense groups in many sectors of the country, whose acts of violence are added to those of drug traffickers, the guerrilla movement, common criminals and, institutionalized by members of the security forces. Similarly the Committee notes that according to the report, the action of paramilitary groups primarily affects trade unionists in many regions of the country and that many of those interviewed stressed that the security forces allowed the action of such groups. Similarly, the Committee notes that those interviewed referred to the existence of cases in which state officials had committed infringements of human rights.
278. In this context and in connection with all the alleged acts of violence, the Committee reminds the Government that "freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed"; "the killing, disappearance or serious injury of trade union leaders and trade unionists require the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events"; and that "the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights" [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, paras. 46, 51 and 55]. Similarly, the Committee asks the Government to take all the necessary measures to dismantle the paramilitary groups which are preventing the normal development of trade union activities in various areas of the country.
Case No. 1761
279. As regards the allegations concerning the murders and injuries sustained by trade union officials or members, the Committee notes that the Government is carrying out judicial inquiries in connection with the murders of the trade union officials Rodrigo Rojas Acosta, Alberto Alvarado, Tina Soto Castellanos and Rosario Moreno, Hugo Zapata Restrepo, Guillermo Alonso Benítez Zapata and Marco Julio Martínez Quiceno; it is similarly carrying out inquiries on the serious injuries sustained by Carlos Posada during the search of the trade union headquarters of the Single Federation of Workers of Antioquía (FUTRAN). The Committee expresses the hope that the judicial inquiries under way might shed light on the facts, determine where responsibilities lie and punish the guilty parties. The Committee requests the Government to keep it informed of the outcome of these inquiries. Furthermore, the Committee requests the Government to keep it informed of developments regarding the inquiries under way in connection with the murders of the trade union officials Perea Israel and Miguel Camelo Reinaldo, as well as on the development of the judicial proceedings continuing against the trade union members Mr. Luna, Mr. Chaparro and Mr. Patiño (the Government had informed the Committee at its March 1995 meeting on the beginning of these latter judicial inquiries).
280. Concerning the alleged detentions of trade union officials, the Committee notes that the Government provided the following information: Ortega García Jorge Luis has been charged with rebellion but, at the same time, judicial inquiries are being carried out to look into threats made against him; he is at present free; Tovar Arrieta Domingo Rafael is not being held and judicial inquiries are being carried out to look into charges that he was abducted and threatened; Orozco Nassan Luis Fernando is not being held and judicial inquiries are being carried out to examine whether he was a victim of extortion; and Martínez César is being charged with abduction but, at the same time, judicial inquiries are being carried out to examine whether he was a victim of extortion. The Committee requests the Government to keep it informed of the judicial inquiries in which these trade union officials are involved.
281. Concerning the other alleged detentions of the trade union officials Triviño Flavio Quiceno Evelio, Escobar Héctor and Ronancio Germán on 12 February 1994 in Mesitas, the Committee notes that the Government has failed to communicate its observations. In these circumstances, the Committee requests the Government to ascertain whether these trade union officials are in fact detained and, in the event that it finds that they were arrested on grounds of their trade union activities, that they take measures to ensure their immediate release.
282. Finally, with respect to the allegations concerning: (1) the expulsion of workers from the headquarters of the Construction Workers Trade Union (SINDICONS) on 11 February 1994 in Cali; (2) the carrying out of visits by members of the state security to trade union meetings and headquarters, for example the Congress of the National Federation of Construction and Cement Workers, which was held in Bogotá between 9 and 12 February 1994; and (3) the existence of paramilitary groups in Medellín that are preventing the normal exercise of trade union activities, the Committee notes that the Government has failed to communicate its observations. In these circumstances, the Committee requests the Government to take measures to ensure that the state security forces do not enter into trade union headquarters if they do not have the necessary judicial warrant.
Case No. 1787
283. In connection with the many murders of and acts of violence committed against trade union officials and members, the Committee notes that the Government informed the mission that judicial inquiries were being carried out in connection with the following murders of, and death threats against, trade union officials or members: (1) Antonio Moreno (12.08.1995); (2) Manuel Ballesta (13.08.1995); (3) Francisco Mosquera Córdoba (02.1996); (4) Carlos Arroyo de Arco (02.1996); (5) Francisco Antonio Usuga (22.03.1996); (6) Pedro Luis Bermúdez Jaramillo (6.06.1995); (7) Armando Umanes Petro (23.05.1996); (8) William Gustavo Jaimes Torres (28.08.1995); (9) Ernesto Fernandez Pezter; (10) Jaime Eliacer Ojeda; (11) Alfonso Noguera; (12) Alvaro Hoyos Pabõn (12.12.95); (13) Libardo Antonio Acevedo (7.7.96) and (14) Jairo Alfonso Gamboa Lõpez (was threatened with murder). The Committee requests the Government to keep it informed of the outcome of the judicial inquiries under way.
284. Furthermore, the Committee notes that the Government is carrying out a judicial inquiry in connection with the setting off of an explosive device in the headquarters of the Construction Workers Trade Union (SINDICONS) in Medellín. The Committee requests the Government to keep it informed of the outcome of this judicial inquiry.
285. Concerning the alleged murders of members of the trade union organization SINTRAINAGRO, Oriol Chaverra, Hernán Correra, Medardo Cuestas, Manuel Márquez, Pedro Barbosa, Omar Casarubio, Fernando Pérez and Amin Palacio, the Committee notes that according to the Government, these persons are alive and they have not lodged any complaints that their lives have been threatened.
286. Furthermore, the Committee notes that the Government failed to submit observations on many murders, attempted murders, death threats, disappearances and physical attacks against trade union officials and members, as well as raids on trade union headquarters and trade union members' homes (see in Annex I the full list of allegations to which the Government has failed to reply). In these circumstances, the Committee urges the Government to communicate its observations as soon as possible on all the cases mentioned in Annex I.
287. With respect to the Committee's request that the Government should carry out an inquiry in the ALFAGRES S.A. enterprise to ascertain the veracity of the alleged anti-union dismissals, the Committee notes that according to the Government, the inspection and supervisory department of the Ministry of Labour carried out an inquiry and found "that the enterprise had not violated freedom of association". Furthermore, the Committee notes that the Government states that a number of trade unionists withdrew the complaint they had lodged with the administrative authorities and that other founder members of the trade union who negotiated their termination with the enterprise, subsequently initiated judicial proceedings to be reinstated. The Committee requests the Government to keep it informed of the outcome of the judicial proceedings under way.
288. With regard to the allegations pending concerning the suppression of the posts of trade union members and officials at the Ministry of Finance, the promotion of an anti-union campaign by the authorities in this Ministry intimidating workers wishing to belong to the trade union and the dismissal of members of the Executive Committee, the Committee notes that according to the Government: (1) the jobs of trade union members and officials had not been cut with a view to destroying the trade union, but had been the result of restructuring within the Ministry affecting many workers; (2) there is no denying that an official of the Ministry did stir up an anti-union campaign but that this situation has been corrected; and (3) the three members of the union Executive Committee dismissed as a result of the restructuring have initiated judicial proceedings.
289. In this respect, concerning the restructuring by the Ministry of Finance which resulted in the dismissal of many workers, the Committee reminds the Government that it is important that "governments consult with trade union organizations to discuss the consequences of restructuring programmes on the employment and working conditions of employees" [see Digest, op. cit., para. 937]. Furthermore, as regards the campaign of anti-union intimidation -- moreover acknowledged by the Government which states that it has however been corrected -- the Committee points out to the Government that "no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or 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]. Finally, the Committee requests the Government to keep it informed of the outcome of the judicial proceedings under way in connection with the dismissals of the three members of the union Executive Committee.
290. Finally, in connection with the Committee's request to the Government that it should take the necessary measures to ensure that the trade union officials and members belonging to the SINTRATEXTILIA union who had been dismissed for their lawful trade union activities should be reinstated, the Committee notes that the Government states that a penal complaint has been launched against the TEXTILIA LTD enterprise and that a number of trade unionists have lodged judicial proceedings on fuero sindical (trade union immunity) and their reinstatement. The Committee requests the Government to keep it informed of the outcome of the judicial proceedings under way, both within the penal and labour courts.
Case No. 1896
291. The Committee notes that the allegations made in this case refer to the complainant organization's lack of agreement with a census of members carried out by the Ministry of Labour and Social Security. In particular, the complainant organization alleges that SITTELECOM has 4,471 members and that the census conceded that it had 1,779, and that as a result of this census it ceased to be the most representative organization of the National Telecommunications Enterprise of Colombia and lost the right to negotiate a new collective labour agreement, which was handed over to the ATT.
292. The Committee notes the Government's statements to the effect that: (1) the census was carried out at the request of the TELECOM enterprise at national level, with a view to establishing which of the two organizations in the enterprise -- SITTELECOM and ATT -- was the most representative for purposes of collective bargaining (the Labour Code provides that the representation of workers through collective bargaining is incumbent upon the trade union grouping the majority -- half minus one -- of the workers in the enterprise); the statutes of SITTELECOM stipulate, amongst other requirements, that anyone wishing to be a member of the trade union must submit a written request for membership to the Executive Committee which decides whether to give its approval or not; (3) when carrying out the census on the SITTELECOM organization, the administrative authorities only considered as members those workers who had complied with the above-mentioned requirement to submit a request for membership in writing; the trade union organization SITTELECOM, through its various branches, did not submit the registers of members required to carry out the census and, in cases in which they did, the administrative authorities noted that most of those registered as members by SITTELECOM had not been duly accepted as members by the Executive Committee; (4) the fact that the employer draws up a list on the basis of trade union check-offs does not provide evidence that those paying contributions are members of the trade union given that, under section 471 of the Labour Code, the collective agreement might stipulate that dues should be paid by those not belonging to the trade union as they benefit from the collective agreement; and (5) the trade union organization SITTELECOM has lodged an appeal to the judicial authorities in relation with this census.
293. In this respect, the Committee notes that, according to the Government, the administrative authorities complied strictly with the provisions contained in the statutes of the SITTELECOM trade union organization when counting the members of the trade union in question and on account of various irregularities -- the failure of workers to submit in writing their request to belong to the trade union, the failure to submit the register of members and the failure of the Executive Committee to approve requests for membership -- reached a number of 1,779 members to which the complainant organization objects. In these circumstances, while noting that it does not have at its disposal any factors which might lead to conclude that the Government had favoured one trade union organization over another in the TELECOM enterprise when carrying out the census in question, the Committee urges SITTELECOM to take measures to ensure that all its members comply with provisions laid down in the statutes and, in the event that they do so, requests the Government to carry out a new census counting all the workers who have been effectively registered as members of the trade union organization in question. Finally, the Committee requests the Government to keep it informed of any developments that might arise in this respect and to send it a copy of the ruling concerning the appeal lodged with the judicial authorities by the trade union organization SITTELECOM.
294. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
Case No. 1761
Case No. 1787
Case No. 1896
Allegations on which the Government has not yet communicated
its observations in connection with Case No. 1787
The trade unionists Edgar Riaño, Darío Lotero, Luis Hernández and Monerge Sánchez.
Detention and raids on homes:
Luis David Rodríguez Pérez (former leader of the National Trade Union of Workers of Incora -- SINTRADIN).
Raids on union headquarters, telephone tapping, surveillance of trade union members:
A raid on the headquarters of the Single Agricultural Trade Union Federation (FENSUAGRO), the tapping of telephones in the union headquarters and of members' telephones and surveillance of the President of the Federation, Luis Carlos Acero by armed persons.
Physical aggression and police repression:
Report of the mission to Colombia
carried out from 7 to 11 October 1996
by Professor Santiago Pérez del Castillo
(Parts relating to cases pending before the Committee)
1. Provisions of Colombian legislation to which the Committee of Experts objects
2. Position of the government authorities and the social partners
3. Impact of the mission on legislation
Appendices: (Appendices II, III and IV not reproduced)
II. Legislative provisions to which the Committee of Experts objects
III. Texts of draft legislation
IV. Observations on the cases pending before the Committee on Freedom of Association submitted to the Mission
At its December 1995 meeting, the Committee of Experts on the Application of Conventions and Recommendations formulated an observation on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), by Colombia and requested the Government to take steps to bring its legislation into conformity with the Convention.
During the discussion of this case in the Conference Committee on the Application of Standards in June 1996, the Minister of Labour and Social Security, Mr. Orlando Obregón Sabogal, invited the ILO to carry out a mission to his country in order to promote union rights and social dialogue. In this respect, the Committee formulated the following conclusion:
The Committee noted the written and oral information provided by the [Minister of Labour and Social Security] and the discussion which followed. The Committee recalled that the Committee of Experts insisted that the Government should take measures to remove the prohibition placed on public employees who were not employees engaged in the administration of the State to conclude collective bargaining agreements. The Committee observed with concern that many complaints of a serious nature were still outstanding and before the Committee on Freedom of Association. The Committee also noted that a draft law which was the result of a tripartite agreement would be presented to the next legislative session. It noted that the Government had invited an ILO mission in order to promote social dialogue and trade union rights. The Committee expressed the hope that, in this context, the next report from the Government would note substantial progress, in law and in practice, with regard to the application of the Convention.
Moreover, the Government decided to extend the mission's mandate to: (1) the issues raised by the Committee of Experts on the Application of Conventions and Recommendations in the context of its examination of the application of Convention No. 87 by Colombia; and (2) the complaints presented by various trade union organizations to the Committee on Freedom of Association of the Governing Body. The mission's mandate thus covered both the issues raised by the Committee of Experts with respect to the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No.87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the cases pending before the Committee on Freedom of Association (Cases Nos. 1761, 1787 and 1896).
The Director-General of the ILO appointed me as his representative to undertake this mission, which was carried out from 7 to 11 October 1996. I was accompanied on the mission by Mr. Horacio Guido, an official of the Freedom of Association Branch of the International Labour Standards Department, and Mr. Luis Zamudio, International Labour Standards Specialist with the Multidisciplinary Team based in Lima, Peru.
During the mission we met with His Excellency Mr. Orlando Obregón Sabogal, Minister of Labour and Social Security, and senior officials of the Ministry; Mr. Alfonso Valdivieso, General Prosecutor; Ms. Graciela Uribe de Lozano, Director-General for Special Affairs of the Ministry of Foreign Relations; Mr. Luis Eduardo Montoya Medina, the Attorney General; Mr. Carlos Gaviria Díaz, President of the Constitutional Court; the members of the Labour Court of Cassation of the Supreme Court; Mr. José Fernando Castro, the Ombudsman; the National Human Rights Unit; Mr. Edgar González Salas, Head of the Administrative Department for the Public Service; Mr. Carlos Medellín Becerra, Minister of Justice and Law; the Standing Committee on Concertation of Wage and Labour Policies; Mr. Carlos del Castillo, Resident Representative of the United Nations Development Programme (UNDP); and representatives of the Single Confederation of Workers of Colombia (CUT); the General Confederation of Democratic Workers (CGTD); the Confederation of Workers of Colombia (CTC); the National Federation of State Workers (FENALTRASE); the United National Federation of Salaried Employees and Professionals of the State and Public Service (FUTEC); the Single Agricultural Trade Union Federation (FENSUAGRO); the National Association of Manufacturers (ANDI); the National Federation of Merchants (FENALCO); and the Colombian Association of Small and Medium-sized Enterprises (ACOPI). A list of all the persons interviewed is appended to this report [Appendix I].
In all the interviews, the mission placed special emphasis on explaining the reason for its presence and its objectives, which were to explain and clarify the observations of the Committee of Experts and explore possible solutions to the problems that had arisen, as well as to collect as much information as possible concerning the cases pending before the Committee on Freedom of Association.
I should like to emphasize that the authorities provided us with every assistance in carrying out the mission, as well as a high degree of cooperation, for which I am most grateful. I would also like to express my appreciation to all the persons interviewed for the information they supplied.
Since his appointment in January 1996, the Minister of Labour, Mr. Orlando Obregón Sabogal, a prominent former trade union leader, has won a high degree of respect and credibility among the representatives of the various occupational organizations contacted by the mission, who, generally speaking, highlighted his serene personality, which was conducive to dialogue and understanding.
The policy pursued is characterized by efforts to bring the social partners closer together, giving priority to formal social concertation, which, the mission found, is considered in the context of the Colombian labour relations system as a most appropriate instrument for the achievement of mutual understanding between employers and organized workers.
According to the 1991 Constitution, which was the outcome of efforts to bring peace to the country by establishing a new political pact, "a permanent commission composed of the Government, the representatives of employers and of workers, will promote sound labour relations, contribute to the settlement of collective labour disputes, and coordinate wage and labour policies. The law will regulate its membership and functioning" (article 56, third paragraph).(1)
The current administration approved an Act elaborating on this provision, which itself drew its inspiration from one of the main advisors of the present Minister of Labour.
The Act on the concertation of wage and labour policies, which elaborates on this constitutional mandate, was approved this year (No. 278 of 1996). The same policy orientation is seen in the project entitled "A new culture of labour relations".(2) The above-mentioned Act is considered to be one of the main results of this project, as is the tripartite agreement reached on the Act respecting collective bargaining for the public sector. Also worth mentioning is the television programme entitled "Chóquelas", promoted by the authorities: it emphasizes the importance of a system of ethics and a new culture which, while it does not ignore differences or conflict, gives priority to dialogue and understanding. In the conditions prevailing in Colombia today, these values are essential for the development of a culture for peace.
Among the state authorities, special mention should be made of the Office of the General Prosecutor. The mission met twice with the General Prosecutor, Dr. Alfonso Valdivieso, who described the efforts being made to combat the impunity of crimes aggravating the serious situation of violence prevailing in the country, and especially those affecting fundamental human rights. He considered that the mission's visit was especially timely and appropriate and expressed his willingness to collaborate fully in achieving its objectives.
Within the Office of the General Prosecutor, the Investigations Department, comprising some 4,000 officials, carries out the functions of the judicial police.
Another body with responsibility for investigating crimes and for police functions in general is the Security Administrative Department (DAS), which reports directly to the President of the Republic.
The office of the Ombudsman, which is part of the Public Ministry, is a supervisory body mandated by article 118 of the Constitution to carry out "the safeguarding and promotion of human rights, protection of the public interest and monitoring of the official conduct of persons in public office". Under the Constitution and the legislation, the supervisory role of the Ombudsman with regard to the promotion and exercise of human rights is confined to the acts and omissions of a specific group of Colombians: public servants.(3)
As regards workers' organizations, it should be pointed out that out of a total of 11 million workers, some 7 per cent are unionized, according to information provided by one of the three main organizations; another organization placed the figure at around 10 per cent.
The confederation with the largest membership and that which has been hit hardest by acts of violence is the Single Confederation of Workers (CUT). It groups together 53 per cent of state employees (SINALTRASE), a large proportion of whom are members of the teachers' organization. A considerable share of the CUT's membership is affiliated to the International Confederation of Free Trade Unions (ICFTU).
During the mission there were press reports of the forthcoming elections of this confederation, for which 21 lists of candidates were presented. Press reports estimated the number of members entitled to vote to be as high as 287,000.(4) In their interview with the mission, the officers of the confederation placed the number of members at approximately 400,000.
Another important trade union confederation is the General Confederation of Democratic Workers (CGTD), which is affiliated to the World Confederation of Labour (WCL). It was the result of a merger between the Confederation of Democratic Workers, founded in 1988, and the CGT. This confederation did not sign the Social Pact of 1995 and maintains that it is openly opposed to the neo-liberal model of Presidents Gaviria and Samper. However, it does participate in the social concertation under article 56 of the Constitution. It is considered to be the main confederation of the private sector, with 380,000 members.
In addition to these two confederations, there is a third, the Confederation of Workers of Colombia (CTC), which is affiliated to the ICFTU.
Employers' organizations include the National Association of Manufacturers (ANDI), affiliated to the International Organization of Employers (IOE), which is the most representative organization, and the National Federation of Merchants (FENALCO). Both are members of the Social Concertation Commission. Small and medium-sized enterprises are represented by the Colombian Association of Small and Medium-sized Enterprises (ACOPI).
The FENALCO is a nationwide organization whose members range from small village shopkeepers to large supermarket chains. According to representatives of the organization, there is hardly any unionization among the workers employed by the enterprises affiliated to it, either because of their small size or because of the prevalent labour relations style.
One of the mission's objectives was to collect information on the various cases pending before the Committee on Freedom of Association dealing with extremely serious violations of human rights, such as murders, massacres, torture, forced disappearances, etc. These examples are neither recent manifestations nor isolated occurrences, as was confirmed by the mission, and can be seen from a brief glance at this supervisory body's jurisprudence.
The mission endeavoured to understand the reasons for the violence and inform itself about some of its manifestations. A large part of the country is sparsely populated. Fifty per cent of the country, the eastern region, only has one million inhabitants compared to the 35 million living in the rest of the country.
The prevailing climate of violence in this vast territory has been dragging on for 45 years and is aggravated by the fact, that according to a senior government official, the presence of state authority is widely dispersed in some regions of the country. Among the acts of violence -- sometimes marked by unusual cruelty -- are a very large number of unsolved cases and, although efforts are being made to combat this situation, understandably the fact that these crimes go unpunished is an additional incentive to repeat them and to commit further violations of human rights. Efforts have been made to strengthen machinery for the investigation and sentencing of crimes, but they do not appear to have borne fruit and, according to some authorities, it does not seem likely that the climate of violence will improve in the near future.
A report published in 1996 by the Office of the Ombudsman,(5) quotes the Colombian Commission of Jurists as saying that the country "has for over five years registered the highest homicide rate in the world: between 1988 and 1995 the number of homicides averaged 76 per 100,000 inhabitants". The situation is particularly appalling in the Urabá region, where the rate has reached 256 homicides per 100,000 persons. Some towns in the area have registered the following chilling figures: as many as 578 homicides in Carepa, 487 in Chigorodó, 385 in Apartadó and 354 in Turbo. Few cities in the world have achieved this shameful record.
The former Ombudsman, Mr. Jaime Córdoba Triviño, goes on to say that all of these alarming figures show that despite the new Constitution that entered into force in 1991, there is not yet a genuine commitment to the fundamental principles enshrined in it in Colombia. These figures also show that the State has failed, either by commission or by omission, to comply with international treaties on human rights. Colombia continues to be one of the most violent democracies in the world, with the most serious situation on the continent in terms of human rights and humanitarian law.
"No-one can honestly affirm that in Colombia the State is completely uninvolved in violence. There are still people in the armed forces and police who commit illegal and arbitrary acts in the course of their military and police activities. Today thousands of Colombians are still terrorized by paramilitary groups who enjoy complete freedom of action in areas under military control. People are still murdered, tortured and abducted in the context of repression and armed conflict."
"Many of the acts violating or threatening human rights committed in 1995 by Colombian agents of the State also constituted violations of international humanitarian law." The Ombudsman refers to acts and omissions by which those directly involved in hostilities -- the combatants -- fail to carry out their duties or violate the prohibitions imposed under article 3 of both the Geneva Conventions and additional Protocol II. "The author of an infringement of international humanitarian law may be any person fighting on either side of an armed conflict. In today's international jurisprudence and doctrine, serious violations of humanitarian law are termed war crimes."
"Moreover, serious violations of international humanitarian law continued to be committed in 1995 by members of guerrilla units. In particular, these included abductions, hostage taking, murders of persons accused of collaborating with the authorities and irresponsible use of the landmines known as 'quiebrapatas' (leg breakers) which affect the civilian population. The Ombudsman also made a statement in September 1995 against these criminal acts committed by guerrilla units."
A study commissioned by the United Nations Development Programme (UNDP) states that "the intensity and particular 'mix' of violence has varied from one region to another or from one period to another. In the last century, it was committed by rebel leaders and poorly armed farm labourers fighting in Cauca, Santander and along the Magdalena river. Partially confined to the high plateau in the thirties, violence descended into the lowlands in what was to become the guerrilla warfare-cum-criminal banditism rampant in the coffee-growing region. The FARC originally emerged as 'peasant self-defense units' in southern Tolima and spread throughout virtually all the colonized areas; the ELN spread from Santander to the oil-producing regions, the EPL settled in the lower coastal lands, the Quintín Lame took over the Cauca, the M19 positioned itself in the valley of the Cauca in an attempt at urban guerrilla warfare; the same went for a whole series of commando units and dissident groups that sprang up in the eighties. The paramilitary movement began in the areas of the large agricultural estates and spread like a cancer as quickly as land was turned over from cultivation to drugs in a sort of 'agrarian reform', in the middle reaches of the Magdalena river, the foothills or the coastal plains. Medellín suffered from Escobar's drug wars, Cali was beset by 'raids' and 'social cleansing' squads, Bogotá is legendary for its high levels of street delinquency and organized crime, Boyacá has succumbed to 'green fever' several times, César boasts of high abduction figures, while Urabá is being bled white in a multilateral conflict."
"Violence that is this persistent in time and this widespread over space must have deep and extensive roots in the society in which it prevails. But violence that is this prone to fluctuate and change over time and from one geographical area to another must also be affected by factors that vary over time and space. There is a single violence in Colombia just as there are many forms of violence. The factors or 'causes' of violence are also therefore both one and many, just as the solutions that will be needed to eliminate it are both one and many."
This text provides a perfect summary of what we have heard about the origins of violence from our various interlocutors: various attempts at classification have been made, but what distinguishes it most of all from that in other countries is the prevalence of private organized groupings, often without any underlying ideological motives or even any other motives whatsoever apart from that of acquiring money through crime. Paramilitary units are not necessarily linked to state security forces, and what we have repeatedly heard during interviews is that there are a variety of armed gangs pursuing a variety of objectives.(6)
A representative of an employers' organization stated that violence is everywhere and it is often difficult to tell where it comes from. He added that a good share of conflicts in Colombia are dealt with through violence. The justice system is powerless. Despite efforts made by the Government, it moves so slowly that people are not willing to wait and are losing their tolerance.
According to the same employers' representative, the violence of the liberal-conservative movement of the fifties gave way to a Marxist-inspired wave of violence in the sixties, which in recent years has been replaced in some cases by that committed by subversive movements involved in the drug trade, which comes into conflict with paramilitary groups, some of which are also linked to drug trafficking. In this context, employers who head large enterprises invest considerable resources in maintaining a high level of protection through security, intelligence and surveillance.
During the mission's visit, a prominent leader among agricultural employers(7) denounced the fact that guerrillas and drug traffickers rule rural Colombia, ganging up together and using terror to dominate a large part of the country. He affirmed that the production of drugs alone brings in an annual profit of 7 million dollars, more than their income from abductions, robbery and cattle rustling. He added that in 1996, 491 cattle breeders were abducted and 47 farmers who were leaders of occupational associations or cooperatives were murdered. According to the same source, in the first nine months of the year, abductors collected over 242 million dollars only through their operations targeting rural employers. He stated that 35,000 farmers paid some 2.5 million dollars a year in extortion to rural gangs (known as 'vaccinations') and in sums paid by landowners to employees to check on their property every 30 days.
As stated above, it is easy to see that violence has various origins and various targets. The list of aggressive attacks against the trade union movement is almost endless and new names are being constantly added. Some maintain that these acts are part of a premeditated plan to eradicate the trade union movement. Whatever the case, in accordance with our mission's mandate, it should be emphasized that an impressive amount of violence is targeted against persons holding trade union office or whose physical integrity and personal freedom are attacked solely on account of their trade union activity.
Moreover, in this case the problem is compounded by the fact that it is not always clear whether the victim's trade union office or activity as such was the motive for the crime. Cases of guerrilla supporters or violence for private motives were mentioned to the mission. Be that as it may, the situation amounts to a formidable obstacle to the normal exercise of trade union activity and creates a powerful deterrent added to that of discrimination which, as the mission found, this type of activity tends to attract.
A further example is the murder on 10 October 1996, during the mission's visit, in Barrancabermeja of a militant trade union leader of the USO in the petroleum industry. The workers employed in the Ecopetrol state enterprise held a 36-hour work stoppage in protest.(8)
The mission suggested to the Office of the General Prosecutor that it assign its Special Human Rights Unit the task of investigating the murder. To prevent this type of crime from going unpunished will contribute to curbing anti-union violence.
Protection of the specific principles of the normal exercise of trade union activity and promotion of participation in occupational organizations would be tangibly improved if public opinion were made aware that the Office of the General Prosecutor was taking special action on attempted murders or murders committed against trade unionists.(9) Until now anti-union violence does not appear to have been given special attention in the context of the general struggle against violence in general.
The ILO mission found a considerable presence of other agencies of the United Nations system and other international bodies in the joint efforts to combat the serious problem of violence in Colombia. In this context, and with a view to making an appropriate contribution that is consistent with the ILO's international mandate, emphasis was laid on the question as it related to labour relations and the international labour standards on freedom of association, with the Office working alongside the other specialized agencies.
2. Aspects of the problem of violence (causes, impunity, paramilitary groups, drug trafficking, sluggishness of the justice system, protection measures in the event of death threats against trade union members)
Before giving an account of the specific information received concerning the various allegations in the complaints pending before the Committee, I felt it appropriate to provide a summary of the numerous observations made by the mission's interlocutors concerning the most serious allegations, which give an idea of the background against which the complaints were presented. These observations, which include important information concerning the general situation in the country, and in particular the situation of workers' and employers' organizations in the current context of violence, entirely reflect the opinions of the persons interviewed, and I have endeavoured to relay them as accurately as possible. In addition, Ministry of Labour authorities highlighted the guerrillas' recent threat to hold an armed strike in Bogotá which would take advantage of a planned education workers' strike, with demonstrations. It should also be pointed out that while the different interlocutors gave figures on the acts of violence committed in the country over the year 1995, they do not always coincide but place the number of murders at between 25,000 and 30,000, not counting other kinds of attack.
According to the Minister of Labour and Social Security, there is an acute climate of violence. Some circles consider that it should be eliminated by force, while others seek a solution through dialogue and understanding. The guerrilla war in Colombia is one of the most virulent and persistent in the world, having lasted for over 40 years. There are groups which support the guerrilla movement ideologically, while others assist it in various ways. Paramilitary groups emerged in response to guerrilla violence; they are private organizations fighting not only against the guerrilla movement but also against those suspected of assisting it. According to the Minister, over 30,000 persons are murdered in Colombia every year. When there are allegations of detentions of trade union leaders, letters are sent to the Office of the General Prosecutor, requesting priority attention, and the Attorney General and the Ombudsman may be present in order to guarantee due process of law. If the inquiry finds that the trade union leaders are members of the guerrilla movement, this is determined by the judiciary, without interference on the part of the Ministry of Labour. The Ministry of Labour and the Ministry of Defense hold joint meetings to raise awareness of the fact that someone involved in the social struggle is not to be compared with a guerrilla fighter. The army has a human rights commission which invites trade union leaders to express their views on the violence. When the headquarters of a trade union were searched by the army in Tolima, the Ministry requested information and was informed that the search was carried out on account of subversive activities. Every effort is made to take into account the fact that a trade unionist is involved in a social struggle. There are cases of trade union leaders being detained, not for their trade union activity, but because they are suspected of being involved in illicit activities. There has not been a decrease in the unionization rate as a result of the violence. The Ministry strives for recognition of the importance of trade union officers and to raise the status of the trade union movement.
According to the General Prosecutor the causes of the widespread violence in the country are the guerrilla war which has lasted for over 40 years, drug trafficking, paramilitary groups and common crime. Trade unionists with right-wing tendencies are murdered by guerrilla fighters, while left-wing ones are killed by paramilitary groups. In reply to the question whether acts of violence are committed against trade unionists because of their trade union activities or membership, he replied that violence of this kind did exist and that it was a very plausible hypothesis, since trade union associations had become politicized. In Urabá political forces are mixed up with trade union organizations. In reply to the question whether trade union officers had been detained on account of their office, he said that they had been detained not specifically for this reason, but for militant subversive activities. He stated that, for example, trade unionists of the USO had been detained for being involved in abductions and other crimes. In reply to the question whether protection could be provided for threatened trade unionists, he stated that this was almost impossible, but that there was a victim and witness protection programme. He admitted that the justice system was sluggish as a result of an excessive case-load and outdated machinery and procedures. He stated further that crime was on the increase, as well as total impunity, which encourages criminals. Lastly, the General Prosecutor stated that improved links would be established with the Ministry of Labour in order to provide more direct follow-up of all cases of murder or attacks against trade union officers and members.
The mission visited the National Human Rights Unit (set up in 1996). There they met with a Regional Prosecutor (one of the "faceless" prosecutors, i.e. one who is not known to be a prosecutor), who stated that the main objective of this unit is to do away with impunity. This Prosecutor stated that his office dealt with all of the cases that are hard to handle in the field, specifically because of acts of violence committed against prosecutors. The unit's mandate covers, inter alia, cases involving agents of the State (members of the security forces), or cases of action carried out by paramilitary groups and condoned by the security forces, or those in which violent acts are committed by subversive groups. As regards violence committed against trade unionists, there has been a proliferation of violent acts, with different kinds of violence occurring in each region, with its own peculiar features. In some regions there are agents of the State (members of the security forces) who, in collaboration with landowners, pursue an policy of eliminating subversion. The competence of the "faceless" prosecutors extends to crimes linked to terrorism, large-scale drug trafficking, rebellion, or abductions. Their involvement also depends on whether the victim of the crime is a trade union officer: for example, homicides fall within the competence of sectional prosecutors, but if the evidence shows that the victim is a trade union officer and the presumed motive for his death was his trade union activity, the case is handled by the Regional Prosecutor (the "faceless" prosecutor). According to the "faceless" Prosecutor interviewed by the mission, there are two theories explaining acts of violence against trade unionists: (1) violence against trade unionists is committed on account of their union activity, by paramilitary groups, in line with a general tendency to destroy trade union organizations; and (2) acts of violence against trade unionists are isolated cases, and not part of a systematic repression. The unit is also aware of the existence of acts committed by agents of the State (members of the security forces) in violation of human rights. In a number of situations there is also a problem of conflicting areas of competence between the ordinary justice system and the military penal system.
According to the authorities of the Ministry of Foreign Relations and an Advisor of the President's Office for Human Rights, it is very difficult to identify the causes of violence in Colombia and to determine its origins because it is committed by so many different authors (paramilitary groups, common criminals, drug traffickers, guerrillas). They stated that there is the will to make progress and solve human rights problems, but that there are difficulties in the way of eliminating impunity and that no solution has been found to the problem of the guerrilla war and drug trafficking. Specifically, as regards trade unionists who are victims of acts of violence, they stated that the Office receives complaints within its area of competence, but that problems arise from the lack of information given by the authors of such complaints and when more information is required any delay may result in the evidence being lost. In cases of detained trade unionists, the Office endeavours to ensure that procedural guarantees are provided. Many of those concerning whom complaints are made are accused of rebellion or of terrorist acts. They informed the mission that the Office carries out a number of measures to help solve cases in which the victims were members of the trade union movement. Specifically, they refer to the following: (1) including cases affecting unionized workers in the planned nationwide information network on human rights. The main objective of this planned communication network is to develop a nationwide information system that would provide a comprehensive overview of patterns of violence in the country, as well as trends, sectors affected, etc. They added that there was the problem of determining whether a victim was a trade unionist, as well as whether this fact was related to the crime, since in many cases the information available from the sources was minimal, which means that a lengthy process of sifting through other similar cases must be gone through in order to determine whether or not an inquiry has already been undertaken; (2) the machinery for expediting cases, which consists of two types of activity: (a) requests to the authorities carrying out the relevant inquiries to update the case, or requests to initiate inquiries in cases in which complaints have not yet been brought before the competent authority; and (b) the selection of a minimum number of cases, after concertation with the workers' confederations, to be brought before the National Human Rights Unit. The mission was also informed that on 5 July 1996, Act No. 288 was approved, which provides that compensation shall be paid for violations of human rights, as stipulated by the Inter-American Commission on Human Rights and the Human Rights Committee of the International Covenant on Civil and Political Rights. Moreover, the President's Office for Human Rights stated that, as regards threats and protection to be provided to persons who have been threatened, this is a key issue for all the groups affected by violence in the country and the need exceeded the State's capacity to meet it. Support is given to requests for urgent humanitarian action, such as enabling persons threatened with imminent danger to their physical integrity to travel to different areas of the country or abroad. Requests are also made to expedite complaints concerning threats brought before the competent bodies, and the Security Administration Department and National Police are requested to assess the degree to which the person is in danger and the possibility of offering personal security services, but the demand for protection in this country is so high that alternative methods are being envisaged to increase the availability of such services. In the case of victims and witnesses of crimes, the protection programme is the responsibility of the Office of the General Prosecutor, and one of the alternatives now being developed is the establishment within the Ministry of the Interior of a special administrative unit for human rights which will have a special section dealing with the protection of persons who have received threats. It is hoped that this section will be operational at the beginning of the coming year.
The Attorney General pointed out that there are still vestiges of an era of armed repression of labour disputes. He informed the mission that the Attorney General's Office takes measures against acts of violence in which the security forces are involved, and that it is possible that the security forces are involved in action targeting trade unionists, since historically a trade unionist was seen as a subversive. He repeated that this attitude is now changing.
According to the Ombudsman, the causes of violence in general are as follows: social injustice, marginality (10 million persons are living at income level 1), failure of the Government to meet its promises in terms of health care, education or employment; a guerrilla war that has lasted over 40 years, during which guerrillas have taken over whole municipalities even if they cannot win the war; drug trafficking in its various manifestations (security armies to protect drug lords; some guerrilla groups join the drug trade in order to finance themselves); the paramilitary groups, which have been meting out private justice for years; and the security forces, which sometimes exceed their authority. As regards violence against trade union officers and members, he did not believe that they were the targets of organized violence, nor that there was a state policy against trade unionists; the murders of trade unionists were isolated cases. Violence was on the increase and the guerrilla movement was gaining in strength and taking over municipalities. Common crime had also increased in the cities. In some sectors there was talk of links between the trade union movement and the guerrilla movement on the one hand, and with the military and paramilitary groups on the other. A certain amount of progress had been achieved in the trade union movement and there was some tolerance with regard to trade unions.
The Minister of Justice and Law stated that major efforts were being made to disseminate information on the work being done by international organizations and the importance of respect for human rights. He added that a ministerial committee had been set up to examine earlier cases of violations of human rights in order to verify the allegations, and if the State was found guilty, it would have to pay compensation. This Committee has already met, and out of 17 cases examined, the Government had ordered the payment of compensation in 15. He also emphasized the fact that this Committee would not solve the problem of violation of human rights, but that it does imply recognition of the fact that human rights were violated in some cases by the state security forces, respect for international organizations and the emergence of a shift in behaviour and awareness. As regards violence against trade unionists and the fact that crimes go unpunished because they are not solved, the Minister stated that a large part of the problem depends on finding a solution to the conflict of competence between the civil justice system and the military system. According to the Minister, the "current tendency is that if the inquiry is carried out by the military justice system, the decision handed down is normally in favour of the military", which contributes to impunity. In this respect he stated that plans were under way to amend the Code of Penal Procedure, in order to lay down clear rules for conducting trials. He pointed out that the problem lay in determining when human rights had been violated by a member of the security forces and when they had acted on or off duty. He affirmed that his Ministry had given a considerable impetus to the struggle against impunity. He stated that as regards the crime rate, hidden crime had much to do with impunity, since there were many crimes which were not reported. He explained that there was talk of an impunity rate of 97 per cent in the years 1993-94 but that the figures given by the various institutes differ according to the methodology used. Work was currently under way on creating an information system in the justice sector. As regards acts of violence committed against trade union officers and members, he stated that following the process of reconciliation, during which some guerrilla groups had decided to give up the armed struggle, the FARC and the ELN decided to continue fighting. According to the Minister, these guerrilla groups have clear links with the drug trade. Again according to the Minister, the guerrilla group ELN has a direct influence on some trade union organizations, as does the FARC. He added that it was not a total involvement but that much depended on the area of the country. There were some areas in which there were violent clashes between the army and the ELN (for example, in Santander, where the oil refineries were located). When political action is taken by a trade union and FARC or ELN sympathizers or activists are identified, the situation becomes very difficult, since the parties to the conflict target the trade unionists because this is easiest. This situation has led to the creation of paramilitary groups or self-defence groups that are waging a dirty war that goes beyond the traditional army-guerrilla conflict. There have been many cases of abduction by the ELN, which foments hatred, and since the State is unable to resolve these situations, landowners or cattle breeders resort to the use of paramilitary groups. Lastly, the Minister stated that when a trade unionist is persecuted for suspected guerrilla activity, the State attempts to protect him, but it cannot prevent murders or acts of violence from being committed sometimes because a trade union is suspected of having links with the guerrilla movement.
The representatives of the Single Confederation of Workers of Colombia (CUT) stated with regard to violence that they wished to emphasize the subject of impunity. Specifically, they pointed out that: (1) some acts of violence were investigated, but not when trade union leaders were involved; and (2) they were suffering from the tendency to penalize the social struggle, since any social action was seen as guerrilla activity. According to these representatives, it was the paramilitary groups which attacked the CUT most often, and these groups acted on the orders of the army, drug traffickers or employers. The regions in which the highest number of acts of violence are committed against CUT officers and members are Urabá, South of Cesar, Barrancabermeja, Sucre and the Magdalena regions, where acts of violence arise out of land ownership issues or social activism by the workers. They stated that in El Valle attempts had been made to eradicate the trade unions since 1989. The army was arresting trade unionists and accusing them of guerrilla activity and of having committed subversive acts. Trade union officers were being threatened into leaving their jobs. In many cases the threats are made by the army.
According to the representatives of the General Confederation of Democratic Workers (CGTD), it was CUT members and officers who had been hit the hardest by acts of violence against the trade union movement; they considered that this was due to their political affiliation or sympathies or was merely on account of their trade union activities. According to these representatives, acts of violence affecting the trade union movement were committed mainly by the guerrilla movement or paramilitary groups. They stated that the latter were backed in the various regions by the military, the police or employers.
The representatives of the Confederation of Workers of Colombia (CTC) stated that violence was widespread, and that the labour and trade union movements were targeted by acts of violence because they had taken up the workers' defence. They stated that CTC officers and members had also been victims of violence, but that it was not possible to determine who the perpetrators were, because of the impunity that reigned in the country. They stated that in Urabá some 15 years before, the CTC had been the only organized confederation, but that as a result of the violence, its presence had been considerably reduced. They informed the mission that trade union officers and members were still being murdered and that in the coffee-growing region of Caldas in particular few trade unions had been set up for fear of violence, since people were afraid of being branded as guerrillas if they carried out trade union activities.
According to the representative of the Single Agricultural Trade Union Federation (FENSUAGRO) (one of the organizations, along with SINTRAINAGRO, which has been hit hardest by violence in Colombia), what they want from the Government is a clear stand on dismantling paramilitary groups. He felt that there was not the political will to dismantle the paramilitary groups operating in regions such as Urabá, Córdoba, Chocó, Meta or Magdalena Medio. The representative stated that attempts were being made to legalize the paramilitary groups through proposals to set up security cooperatives. He stated that in Urabá the paramilitary groups were formed of persons without links to the military, but that they were trained by the army. Lastly, he pointed out that the violence targeted the trade union movement, that workers wishing to set up a trade union had to do so secretly and that all human rights organizations were accused of being subversive, not only trade unionists. (The representative of the organization handed the mission extensive documents giving an account of acts of violence perpetrated on trade unionists and workers in various areas of the country, but mainly in the banana-growing area of Urabá).
The representatives of the National Association of Manufacturers (ANDI) stated that violence permeated all areas of society and that disputes were usually settled through violence, since the State was unable to meet the security needs of the population. They pointed out that the sluggishness of judicial procedures meant that people were unwilling to wait for a solution to come from the authorities, or to tolerate the situation of violence. They pointed our that the violence was perpetrated by subversive left-wing movements that had subsequently converted into drug traffickers/guerrilla fighters with a change in orientation, which came into conflict with paramilitary forces (they also referred to organized gangs of common criminals). Lastly, as regards the impact of violence on the employers' sector, they stated that although they had better means of personal protection, they had to spend large amounts of resources on defending themselves. Employers were also targeted by many threats and attacks, but it was very difficult to determine their origin.
As regards the allegations of acts of violence committed against trade union officers and members (Cases Nos. 1761 and 1787), the Office of the General Prosecutor and the National Human Rights Unit provided extensive documentation. They stated that it was extremely difficult to obtain information, since all of the national prosecutors had to be contacted individually to elicit information on the cases in which complaints had been made. They pointed out that in many regions the prosecutors were unable to carry out inquiries as a result of acts of violence targeted against them, or because of the situation of conflict between the national army and the guerrilla movement. It should be emphasized that the authorities committed themselves to pursuing the inquiries, in order to be able to provide as much information as possible to the Committee on Freedom of Association.
As regards the allegations of anti-union discrimination which had remained pending in Cases Nos. 1787 and 1896, the authorities of the Ministry of Labour have provided information (see Appendix IV).
Although it is not unusual to find different forms of concertation in South America, this issue is more important in the Republic of Colombia because of the special circumstances prevailing there. Social concertation is an element which has perhaps not been sufficiently emphasized. Closer cooperation between capital and labour would bring tangible improvements to the climate of peaceful coexistence and would make an important contribution to establishing a culture of peace to replace the culture of war. With this in mind, it would seem logical to point out the need for tangible results if this valuable instrument is not to be discredited, especially in view of the fact that in its interviews with some of the social partners the mission heard that some initiatives to achieve consensus on proposed regulations involved months of negotiations and did not produce results.
Another institutional element which seems to need strengthening is the judiciary. As is the case in other countries of South America, it is extremely important to have a justice system that is autonomous, flexible and accessible as an instrument which the population is able to trust not only because of its independence but also because of its efficiency and technical capacity. If the population becomes disenchanted with the justice system, it can be assumed that this will be an additional incentive to resort to violence as a means of settling disputes, even individual ones. In the labour field, the mission did not fail to notice the fact that according to the information obtained there are few labour tribunals, at least in the city of Bogotá. In a city with over 7 million inhabitants there are only 16 labour courts of the first instance.
As part of the solution to the problem, emphasis should also be laid on the need to stop identifying the trade union movement with communism or left-wing extremism, especially in a context in which different sources assert that left-wing guerrilla groups are involved in drug trafficking, although one cannot talk of drug traffickers as a single category, but only of certain fronts or sections of the drug trade.(10)
Despite the crisis caused by violence and the political situation, institutions are being maintained. This is probably due to the stable equilibrium of checks and balances between the different powers of the State. While the executive power has the backing of the parliamentary majority, there are other power centres, many of which are jurisdictional, such as the Constitutional Court, the Office of the General Prosecutor, the Supreme Court of Justice, the Attorney General's Office, etc., which form an institutional framework of bodies that are independent of one another, and which seems to contribute effectively to maintaining political stability. In this respect, this can be said to be a country in which there is democratic rule of law, and one which has not had a military government in decades -- the last coup d'état occurred in 1953 -- making it an exception in the Latin American context.(11)
Although it can be said that for a country at war Colombia is a country in which democracy prevails, the General Prosecutor was also right in saying that the encouraging climate of democracy cannot conceal the weaknesses of democratic institutions and the difficulties in the way of strengthening them. He added that: There are deficiencies in the institutional and normative framework which limit the effectiveness of state institutions, restrict citizens' involvement and undermine the credibility of democratic institutions. This is why in recent years the country has moved increasingly towards a consensus concerning the importance of governability to support the consistent practice of sustained and equitable development. At the same time a reciprocal phenomenon has occurred, which is the process of strengthening civil society in terms of autonomy, directly linked to greater responsibility and activism of both social and political organizations and of citizens acting individually or in associations in the social, economic and political fields. The main challenge facing democracy if it is to remain in place as a standard of conduct and action of our States is to ensure that economic growth goes hand in hand with equity and that democracy in practice means the full exercise of citizenship.
Specifically with regard to the relationship between economic well-being and democratic co-existence, the former Ombudsman pointed out that "the growth achieved by the Colombian economy compared to most Latin American economies has not been translated into benefits for the population; the 'social debt' of the Colombian State towards its citizens has increased; there has been a deterioration in the situation with regard to human rights, in terms of economic, social and cultural rights". He points out that there is a poor distribution of income and that in addition to the failure of growth to help mitigate poverty, it has been accompanied by an increased concentration of wealth.
In his acceptance speech on being awarded an Honorary Ph.D from the University of Boston on 2 October 1996, General Prosecutor Valdivieso stated that: The relationship between justice and development is one of the most important emergencies of the moment in Latin America. Another is the sound exercise of the judiciary system, which has proven invaluable in consolidating the cause of democracy. The emergence of criminal organizations with unlimited economic resources has been more that a match for a state apparatus which is unable to cope with the magnitude of the problem. Add to this obsolete methods of dealing with public problems, inadequate means of state administration, errors in the design of public policies, an outworn legal framework and a weak judiciary, and this is enough to make one overwhelmed with scepticism. But what is worse, the absence of an institutional approach in the exercise of the State's function has opened the way to unlawful practices sponsored by organized crime, which have eroded the credibility of the political leadership. We in Colombia are now regretting our failure to deal decisively with the first manifestations of this phenomenon. Excessive tolerance, permissiveness and irresponsible ignorance of our role in rejecting it has led to this tragic situation which we are now beginning to overcome.
What we should like to emphasize in the above is the importance of functioning of the judiciary. A consensus emerged from several interviews to the effect that peaceful conflict resolution, dialogue between persons with conflicting interests, and in general terms, everything that contributes to building a culture of peace, are all based on a jurisdictional system that is flexible and efficient, and one on which the parties to the dispute feel they can rely.
As was pointed our by various state authorities, it is obviously urgently necessary to find civilized ways of managing conflict, which will also serve the general interest. If it cannot be overcome, at least it should be feasible to create conditions to prevent it so as to avert de facto situations that constitute formidable obstacles in the way of peaceful coexistence in the conditions currently prevailing in Colombia. "Dialogue is first and foremost a permanent learning process which not only contributes to overcoming conflict, but also leads to a better management of the enterprise and society as a whole."(12)
* * *
I should like to conclude this report by extending special thanks for the assistance provided to me in the mission by Mr. Horacio Guido, who prepared the mission and possesses an exhaustive knowledge of the Colombian cases before the Committee on Freedom of Association, as well as the legislative aspects. I should also like to express my gratitude for the presence of Mr. Luis Zamudio, whose assistance was invaluable in helping me find my way in the country and conducting the various interviews more effectively.
I should also like to highlight the very high level of cooperation on the part of the authorities interviewed and the social partners, and to thank them for all the assistance provided.
There can be no doubt as to the interest and willingness of the Minister of Labour and Social Security with regard to solving all the problems raised by the Committee of Experts on the Application of Conventions and Recommendations in the context of the application of Conventions Nos. 87 and 98. Specifically, in connection with the mission (before, during or immediately following the mission) two important Bills emerged (one of them, on collective bargaining in the public sector, has already been submitted to Congress), together with a commitment to discuss them in depth in Congress; if they are adopted as they stand, these Bills will overcome the problems raised by the Committee of Experts, except for those relating to strikes in essential services, which are being dealt with in a draft Bill concerning which discussions and consultations are currently being held.
Moreover, the desire to promote trade union rights prompted ministry authorities, during the mission, to submit to Congress Bills providing for the ratification of Conventions Nos. 144 and 151, together with a commitment to submit to Congress a Bill concerning ratification of Convention No. 135.
As regards the cases still pending before the Committee on Freedom of Association, there is considerable reason for concern at the climate of violence prevailing in the country and affecting all population groups, but with especially severe repercussions for trade union officers and members. The causes underlying this violence, which also affects employers, officials of the judiciary, journalists, politicians and citizens in general, are extremely complex, and although the Government and Congress have adopted and continue to adopt measures to limit the extent of violence (protection programmes for witnesses or persons who have been threatened, put in place by the Office of the General Prosecutor, the setting up of a National Human Rights Unit, etc.) the number of victims is extraordinarily high and judicial inquiries are marked by an extremely high degree of impunity. Another cause for concern is the spread in many areas of the country of paramilitary groups or self-defence units whose acts of violence are added to those committed by drug traffickers, the guerrilla movement, common criminals, and institutionalized violence committed by members of the security forces.
The authorities and the social partners are aware of these serious problems, but it is obvious that the problem of violence, apart from new measures and financing, can only be effectively dealt within a wider context: that of achieving social peace, which can only be based on social justice and a gradual elimination of the social conditions leading to injustice, poverty and deprivation. The ideas expressed in the Constitution of the ILO are just as relevant today as they were in 1919.
November 1996. Santiago Pérez del Castillo
Ministry of Labour and Social Security
His Excellency Mr. Orlando Obregón Sabogal, Minister of Labour and Social Security
Mr. Angelino Garzón, Adviser to the Minister of Labour and Social Security
Mr. Orlando Rodríguez, Technical Director of Labour
Mr. Gabriel Mesa Cárdenas, Director of the Office of International Affairs
Mr. Jorge Quiroz Aleman, Head of the Legal Office
Mr. Rafael Ángel Celis, Regional Director/Cundinamarca
Mr. Oscar Moreno López, Head of the Labour Division/Cundinamarca
Ms. María Teresa Lozada, Assistant Head of the Office of International Affairs
Office of the General Prosecutor
Mr. Alfonso Valdivieso, General Prosecutor
Mr. Gonzalo Gómez, Adviser of the Office of International Affairs
National Human Rights Unit
The mission met with a Regional Prosecutor (one of the "faceless" prosecutor's) whose name cannot be revealed because of the nature of his duties (if his identity were revealed it could make him a target of reprisals).
Ministry of Foreign Relations
Ms. Gloria Elsa León, Human Rights Office
Mr. Germán Grisales, Section dealing with specific issues
President's Office for Human Rights
Mr. Gustavo Fernández, Adviser on cases
Mr. Carlos Gaviria Díaz, President
Mr. Alejandro Martínez Caballero, Vice-President
Supreme Court of Justice-Labour Court of Cassation
Messrs. Iván Palacio, Escobar Enríquez, Méndez and Vásquez Valdez
Office of the Ombudsman
Mr. José Fernando Castro, Ombudsman
Ministry of Justice and Law
H.E. Mr. Carlos Medellín Becerra, Minister of Justice and Law
Ms. Sandra Alzate, Director-General of International Affairs
Ms. Alicia María Londoño, Adviser of the Assistance Office
Standing Committee on Concertation of Wage and Social Policies, United Nations Development Programme (UNDP)
Mr. Carlos del Castillo, Resident Representative
Single Confederation of Workers (CUT)
Mr. Luis Garzón, Secretary General
Ms. Bertina Calderón, Vice-President
Mr. Héctor José López, Treasurer
Mr. William Arlez Escobar, President of SINTRASIDELPA
Ms. Castro, Treasurer of the National Federation of State Workers (FENALTRASE)
General Confederation of Democratic Workers of Colombia (CGTD)
Mr. Mario Valderrama, President
Mr. Carlos Bedoya Tavarez, Vice-President
Mr. Julio Roberto Gómez Esguerra, Secretary General
Mr. José Trujillo, Political Affairs
Mr. Mario Fernández, Deputy Secretary General
Mr. Bautista, Treasurer
Mr. Nelson Caballero Herrera, Secretary of Affairs relating to Social Security and Family Benefit Funds
Confederation of Workers of Colombia (CTC)
Mr. Apecides Alviz, President
Mr. Miguel Morantes, Secretary General
Ms. Luz Mary González, Secretary for Women's Affairs
Single Agricultural Trade Union Federation (FENSUAGRO)
Mr. Víctor Julio Garzón, Secretary General
Single Federation of State and Public Service Salaried Employees and Professionals (FUTEC)
Mr. Ricardo Díaz, President
Mr. Fernando Dávila Villamizar, National Treasurer
National Association of Manufacturers (ANDI)
Mr. Alberto Echevarría Saldarriaga, Vice-President for Legal and Social Affairs
Ms. Carmen Ramírez Vanegas, Head of Labour Law Department
National Federation of Merchants (FENALCO)
Ms. Jimena Peñafort, Officer and Legal Adviser
Colombian Association of Small and Medium-sized Enterprises (ACOPI)
Mr. José Miguel Carrillo Méndez, National Vice-President
(Appendices II, III and IV not reproduced.)
Complaints against the Government of the Republic of Korea
-- the Korean Confederation of Trade Unions (KCTU)
-- the Korea Automobile Workers' Federation (KAWF) and
-- the International Confederation of Free
Trade Unions (ICFTU)
Allegations: Arrest and detention of a trade union leader;
overnment refusal to register newly established organizations;
adoption of labour law amendments contrary to freedom of association
295. The Committee already examined the substance of this case at its May 1996 meeting, when it presented an interim report to the Governing Body [see 304th Report, paras. 221 to 254, approved by the Governing Body at its 266th Session (June 1996)].
296. In communications dated 28 December 1996 and 28 January 1997, the International Confederation of Free Trade Unions presented new allegations concerning further violations of trade union rights by the Government. The Government supplied further observations on the case in communications dated 4 November 1996 and 31 January 1997.
297. The Republic of Korea has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. Previous examination of the case
298. The Korean Confederation of Trade Unions (KCTU) presented allegations to the effect that Korean labour law allowed the Government to infringe drastically the right of workers to establish and join organizations of their own choosing without previous authorization. This had been amply demonstrated by the fact that although the KCTU had sought registration on 23 November 1995 further to the holding of its Inaugural Congress, the Ministry of Labour had returned the KCTU's establishment report the next day. The KCTU further contended that it was no coincidence that its President, Mr. Young-kil Kwon, had been arrested by the police on the same day as that in which it had sought to be registered. Mr. Kwon had been charged with violating the "third party intervention" provisions of the TUA (section 12(2)) and the Labour Disputes Adjustment Act (LDAA) (sections 13(2) and 45(2)), for statements he had made during the railway and subway workers' strike in June 1994. In the KCTU's view, the legislative prohibition on "third party intervention" constituted a flagrant violation of freedom of association. The KCTU asserted that Mr. Kwon was still under detention. The Korea Automobile Workers' Federation (KAWF) made similar allegations against the Government in that it too had been refused registration by the Government.
299. In its reply, the Government indicated that the refusal to register the KCTU had been based on various provisions of the Trade Union Act (TUA). With regard to the arrest of Mr. Young-kil Kwon, the Government pointed out that Mr. Young-kil Kwon had been sought by the police since 28 June 1994 when the court had issued an arrest warrant for him on charges of violating the provisions prohibiting third party intervention (sections 13(2) and 45(2) of the LDAA). Furthermore, he had violated other laws by committing acts such as the obstruction of the general traffic flow (section 185 of the Criminal Law), intrusion on to private premises (section 319(1) of the Criminal Law) and the illegal collection of contributions (sections 3 and 11 of the Law on Prohibiting Collection of Contributions in Cash or in Kind). He had been arrested on these charges by the police on 23 November 1995 and indicted on 15 December 1995. However, on 13 March 1996, Mr. Kwon had been released on bail immediately after a decision to this effect had been handed down by the Court. Finally, the Government recognized the need for amendment of labour-related laws. To this end, "the Presidential Commission on Industrial Relations Reform (PCIR)" had been established on 9 May 1996. The PCIR was composed of 30 members representing labour, management, academia, the press and other civil societies. The PCIR would remain active until February 1998, (even after the revision of labour laws had been completed), in order to cultivate and nurture new practices and attitudes toward industrial relations among the general public. The PCIR would continue to further its efforts for this new labour-management culture to deeply ingrain itself within Korean society.
300. At its June 1996 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
(a) The Committee urges the Government to do everything in its power to have the charges brought against Mr. Kwon dropped. It further urges the Government to ensure in future that trade union leaders are not arrested and detained for activities in connection with the exercise of their right to organize.
(b) The Committee requests the Government to take appropriate steps to ensure that the KCTU is granted registration as a trade union confederation so as to enable it to exercise legitimate trade union activities, including the right of collective bargaining and participation in national tripartite consultation. The Committee additionally requests the Government to take appropriate steps to ensure that the Korean Automobile Workers' Federation, the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union are granted registration so as to enable them to exercise legitimate trade union activities. The Committee requests the Government to provide information on any progress made in this regard.
(c) Reiterating that the setting up of the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) is a legitimate exercise of teachers' right to organize, the Committee calls upon the Government to take the necessary measures to enable private and public schoolteachers, including those belonging to CHUNKYOJO, to exercise freely the right to organize.
(d) As regards the legislative aspects of this case, the Committee draws the Government's attention to the following:
-- Reminding the Government once again that the prohibition of third party intervention in the settlement of disputes constitutes a serious restriction on the free functioning of trade unions, the Committee calls on the Government to take the necessary measures to have the provisions containing this prohibition (namely sections 13(2) and 45(2) of the Labour Dispute Adjustment Act (LDAA)) repealed.
-- Recalling the principle that provisions governing the financial operations of workers' organizations should not be such as to give the public authorities discretionary powers over them, the Committee requests the Government to take appropriate measures to have section 3 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind repealed in order to ensure that unions enjoy financial independence.
-- The Committee requests the Government to take the necessary steps to ensure that section 3(5) of the Trade Union Act (TUA) is amended so as to enable workers to establish and join the organization of their own choosing without any restrictions.
-- The Committee requests the Government to take steps to amend section 23(1) of the TUA so as to enable workers' organizations to elect their representatives, including former employees in full freedom.
(e) The Committee urges the Government to ensure that proposed amendments to labour-related legislation are no longer delayed. It trusts that these amendments will be in line with freedom of association principles, including those that are enunciated in its conclusions. It reminds the Government that the technical assistance of the Office is at its disposal in giving effect to this recommendation.
B. The Government's reply
301. In its communication of 4 November 1996, the Government refers to the Committee's above-mentioned recommendations which, in the Government's view, are directly related to the revision of Korea's labour-related laws. While acknowledging once again the need for amendment of labour-related laws, the Government reiterates that it can only abide by the current labour laws until this revision takes place.
302. In this context, the Government refers to the Presidential Commission on Industrial Relations Reform (PCIR) which was set up on 9 May 1996 and whose composition and mandate had been described in detail by the Government during the Committee's previous examination of this case. In essence, the PCIR had been set up to forge the reform of industrial relations and to issue a report to the Government on how to improve current labour laws. The Government indicates that since its establishment the PCIR, which is composed of representatives from labour, management and public interest groups, has undertaken intensive consultations on industrial relations reform. Moreover, it has exerted continuous efforts to develop a reform package. A two-month period was dedicated to the gathering of public opinions on this matter. Various discussions, including three public hearings, four workshops, two visits to worksites, and seven rounds of open discussion were conducted in a subsequent three-month period. In addition, the PCIR held ten general meetings, 30 sub-group meetings, 13 steering committee meetings, and 21 small group meetings on law revision.
303. The Government states that of the 148 issues which were under examination, the PCIR decided at its 12th general meeting on 25 October 1996 to revise or formulate 107 provisions, including the abolishment of the prohibition of political activities by trade unions. However, the PCIR failed to reach an agreement on 41 provisions, which include controversial issues such as recognizing multiple trade unions and the right to organize of public servants and teachers. Accordingly, in line with its decision reached at the 12th general meeting, the Commission is currently in the process of reviewing its final reform draft in order to have it submitted to the Government by no later than 9 November 1996.
304. The Government concludes by stating that it plans to push for the revision of the labour laws as soon as the complete reform package is submitted by the PCIR. It will report the related details of further progress on industrial relations reform to the Committee. Finally, the Government adds with regard to the Committee's previous recommendation on the detention of Mr. Young-Kil Kwon [304th Report, para. 254(a)] that Mr. Kwon was released on bail on 13 March 1996.
C. The complainant's further information
305. In its communication of 28 December 1996, the ICFTU contends that amendments to the labour laws, instead of bringing former labour legislation into compliance with international labour standards, further undermine freedom of association. The ICFTU states that earlier it had been following with great interest the work of the Presidential Commission on Industrial Relations Reform (PCIR), which had been established in early May 1996 with a mandate to produce recommendations for legal reform in the areas of both freedom of association and labour market flexibility. During its five months of existence, the PCIR achieved some progress in the area of labour market flexibility, but in the area of freedom of association key demands of the ICFTU-affiliated Federation of Korean Trade Unions (FKTU) and the Korean Confederation of Trade Unions (KCTU) were routinely opposed by representatives of the employers and the "public interests" sector, representing academics, legal experts, etc. On 11 October 1996, at the time of the Republic of Korea's accession to the OECD, the Government again undertook, as a "solemn commitment", to reform the existing laws and regulations and to bring them in line with universally accepted labour standards. However, after weeks of protracted negotiations, the PCIR announced its dissolution on 9 November 1996. In a number of messages to the Government and the Chairman of the National Assembly, the ICFTU states that it expressed its extreme concern at this development, in particular at the failure of the PCIR to agree over the changes necessary to amend Korean labour legislation in order to bring it into line with internationally agreed standards. In a letter to the Government, the ICFTU indicated that key elements of any acceptable reform, namely ILO Conventions Nos. 87 and 98, had not even been seriously considered. The ICFTU also recalled that it was on the basis of this pledge that the country had recently been granted access to the OECD. However, in spite of all previous assurances, including solemn commitments to both the ILO and the OECD, the ICFTU asserts that the Government then unexpectedly rushed its repressive labour law amendments through the National Assembly on 26 December 1996.
306. The ICFTU states that the main restrictions of the new "Trade Union and Industrial Relations Adjustment Act", which brings into a single law the former "Trade Union Act" and "Labour Dispute Adjustment Act", are the following: (a) restrictions on union pluralism shall remain in force at the industrial, federations and national centre level until the year 2000, and at the enterprise level until the year 2002. This, in essence, upholds the legal ban on the KCTU and places it leadership in grave jeopardy; (b) the prohibition on "third party intervention" has been considerably weakened and unions may receive assistance from federations or confederations to which they are affiliated. But the law places a new requirement for unions and employers to register additional persons from whom they seek assistance with the Labour Ministry; (c) striking workers can henceforth be replaced by workers from outside the enterprise and subcontracting by enterprises affected by industrial disputes is now allowed; (d) the list of essential services, in which arbitration is compulsory and industrial action thus forbidden, remains far beyond those generally accepted by the Committee on Freedom of Association. Petroleum supply and the Mint have been added to a list which includes trains, buses, water, electricity and gas supply, oil refineries, public hygiene and medical facilities, banking, broadcasting and communications; (e) dismissed workers shall lose their right to union membership, although, if a dismissal is under review of the Central Labour Relations Commission, the measure shall remain suspended until the dismissal is upheld by the Commission; (f) during industrial disputes, occupation of production lines will be forbidden; (g) it will be forbidden to pay workers while they are on strike; (h) it will be forbidden for enterprises to pay full-time union officers or award them any compensation; (i) the ban on unionization in the public sector and the teaching profession remains in place.
307. The ICFTU points out that in reaction to these measures, on 26 December 1996, and following repeated earlier warnings that a unilateral imposition by the Government of restrictive labour law provisions would be opposed by their respective organizations, the FKTU and KCTU immediately declared general strikes. The KCTU called for an indefinite general strike, while on 27 December, the FKTU extended its call for a general strike from an initial one-day action, on 26 December, to last until the end of the year. By 27 December, the KCTU indicated that over 200,000 workers belonging to 163 affiliated unions had gone on strike, while the FKTU stated that the 1.2 million members of its 5,500 affiliated unions had been called to go on strike. News reports indicated that major car-making and shipbuilding plants were paralysed, as was the Seoul subway system and numerous other enterprises throughout the land. By midday, over 350,000 workers were reported to have downed tools. Later, on 27 December, 12,000 demonstrators gathered nearby the parliament building in Seoul. They were immediately surrounded by thousands of riot police.
308. In conclusion, the ICFTU considers that the Government, by rushing through Parliament amendments to the labour legislation which violate the specific recommendations of the Committee, has deliberately reneged on its repeated promises to bring labour laws into conformity with internationally guaranteed standards.
309. In its communication of 28 January 1997, the ICFTU once again presents allegations about the following aspects of the legislation:
310. Furthermore, according to the ICFTU, other measures taken after the adoption of the new legislation constitute further violations of trade union rights. Following the issuing of summons for questioning of more than 200 trade union leaders and activists, arrest warrants were issued on 10 January 1997 against some KCTU leaders (see Annex I). In 17 of these cases, the charges brought was interference in business (section 314 of the Criminal Code). The general strike action undertaken by the FKTU and the KCTU for the withdrawal of the legislation of 26 December 1996 has been declared illegal, as legal strike action in the Republic of Korea is restricted to action taken against the direct employer over terms and conditions of employment. Thus, trade union leaders risk being sentenced to seven and a half years' imprisonment.
311. The ICFTU adds that leaders of the Halla Heavy Industry Union were arrested in the harbour city of Mokpo. Their president, Kim Byung-Soo, who was on the list of arrest warrants, had already been arrested on 14 January, while Oh Hyung-Kun, Choo In-Sang and Joo Ki-Seung, who were not on the list, were arrested on 16 January as they were leaving the office of the union, for "obstruction to business" and "violence". Convictions can lead up to five years' imprisonment, increased by 50 per cent if the offence is collective in nature. A unionist at the Manda Machinery automobile plant in Taejun was arrested on 11 January. In the city of Ulsan, police were looking for six unionists at the Hyundai plant. A financial reward was offered for information leading to their capture. Dozens of unionists, fearing arrest went underground throughout the country.
312. Subsequently, around 23 January, the unionists who had been arrested during the time of the strikes were all released. The Government then indicated that it had suspended the effect of the arrest warrants and it was later reported that the warrants had finally been withdrawn as invalid following several applications from district courts for rulings on their constitutionality. However, according to the ICFTU, no repeal of the arrest warrants had been formally issued by 28 January. The ICFTU also points out that some 30 other trade unionists who had been arrested before the strikes are still detained, and are either serving prison sentences or appear on a wanted list (see Annex II).
313. The ICFTU alleges moreover that on several occasions, including in Seoul on 11 and 15 January, riot police intervened to disperse peaceful and authorized trade union marches.
314. The ICFTU adds that it sent two delegations to the Republic of Korea. The first, which was in Seoul from 11 to 16 January, was subject to constant harassment by the authorities. In particular, the mission was openly followed by security personnel although it proceeded normally with its scheduled programme of activities. The members of the mission were threatened with deportation for violating provisions of the Immigration Law. On departure, they were informed in writing that prudent consideration would be given to permitting them to enter the country in the future. The multiple-entry visa of one of the members of the mission, Mr. Takeshi Izumi, was cancelled.
315. Finally, the ICFTU points out that on 28 January the KCTU announced that it was suspending its call on members to go on strike each Wednesday up to 18 February 1997, partly in response to a major economic and political crisis sparked off by the bankruptcy of the Republic of Korea's second-largest steel producer, which was linked to high-level corruption.
D. The Government's further reply
316. In its communication of 31 January 1997, the Government confirms that the Presidential Commission on Industrial Relations Reform reached agreement on a substantial number of issues, based on a consensus that it was essential to reform the existing system and practices of industrial relations in order to enhance workers' living standards as well as labour market flexibility. Nevertheless, representatives of labour and management failed to come to an agreement on key conflicting issues. As a consequence, the Commission wound up discussions with those key issues unresolved. It reported the outcome to the President on 12 November 1996.
317. The Government determined that a swift resolution of this important issue of national interest was imperative. It thus decided to formulate its own proposal based on the report made by the said Presidential Commission and to submit it to the National Assembly without delay. The Industrial Relations Reform Promotion Commission of the Government headed by the Prime Minister with the participation of 14 concerned Ministers, including the Minister of Labour, was established, and prepared a government proposal. Following a notification period of the enactment of legislation from 3 December to 9 December, the Government submitted the revised Bill of labour-related laws to the National Assembly on 10 December 1996.
318. After partial modification, the revised Bill was adopted on 26 December 1996 and the new legislation was promulgated on 31 December 1996. The Government believes that the revised labour-related laws are a considerable step forward towards respecting ILO standards, at the same time reflecting the Republic of Korea's economic needs and its socio-political particularities. The main objectives of the new laws are to bring the existing laws more in line with international standards, as well as to enhance the flexibility of the labour market. To that end, a number of measures have been incorporated, most notably:
319. However, as strong demands to reconsider certain aspects of the new laws arose from labour organizations and some other circles of society, the heads of the ruling and opposition parties met at the Presidential Palace on 21 January 1997 and agreed to reopen debates over the labour laws at the National Assembly. Accordingly, discussions on key elements of the new laws, including freedom of association, are scheduled to resume soon at the National Assembly. Under these circumstances, the Government hopes that the examination of the case directly linked to such deliberations on the revision of labour-related laws will be adjourned until the next session of the Governing Body. The Government assures the Committee that it will be kept informed of progress in the revision process.
320. Before examining the merits of the case, the Committee takes note of the Government's request to adjourn the case. The Committee also notes the advice from the Government that agreement has been reached on the reopening of the debate in the National Assembly on the labour legislation. The Committee regards this as an important development and trusts that it will lead to further change in accordance with the recommendations it has already made.
321. The Committee further notes that the Government has not yet fully responded to the complaints lodged on 28 December 1996 and 28 January 1997 and requests the Government to do so without delay. In this respect the Committee urges the Government to provide a detailed explanation of the changes made to the legislation on 26 December and of the reasons for those changes. The Committee intends to proceed to examine the changes made to the previous legislation and the new legislation, while taking due account of the latest developments and, where necessary, of the absence of detailed information from the Government.
Allegations of a legislative nature
322. After the completion of the work of the Presidential Commission on Industrial Relations Reform, the Government submitted draft bills to the National Assembly which adopted them. However, the Committee observes that the main legislative issues which it had raised, first, in Case No. 1629 [see 286th Report, paras. 558-575; 291st Report, paras. 416-426; and 294th Report, paras. 259-274] and then in Case No. 1865 [see 304th Report, paras. 242-254] have not been fully resolved.
323. In this respect, the Committee would recall that the following issues have been the subject of its comments in the above-mentioned reports: the prohibition of trade union pluralism; the non-recognition of the right to organize of private and public schoolteachers and of public servants; violations of the right of workers' organizations to draw up their constitutions; the right of organizations to elect their representatives in full freedom; the prohibition of third-party intervention in the settlement of disputes; interference in the financial independence of unions; the intervention of the administrative authority in collective bargaining; recourse to emergency powers to end strikes; and a very broad list of essential services where the right to strike is prohibited.
324. The Committee notes with regret that a number of provisions which are contrary to freedom of association principles do not appear to have been amended by the new legislation. In the present case, some of these provisions have been the subject of allegations by the complainants, namely the prohibition of the right to organize of private and public schoolteachers and of public servants and interference in the financial independence of trade union organizations.
325. As regards the first point, the Committee underlines the importance that it attaches to the recognition of the right to organize of workers without distinction whatsoever, including public servants and teachers. It therefore again strongly urges the Government to take the necessary measures without delay so that these categories of workers have the right to establish and join organizations of their own choosing. The application of this principle in practice implies that the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) should be registered without delay so that it can legally defend and promote the interests of its members.
326. As regards interference in the financial independence of unions, the Committee recalls that section 3 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind requires prior authorization from the public authorities when an organization wants to collect contributions in cash or in kind from non-members. In the absence of any information on the amendment of this provision, the Committee stresses once again that provisions governing the financial operations of workers' organizations should not be such as to give the public authorities discretionary powers over them [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 430]. The Committee therefore requests the Government to take appropriate measures to repeal this provision in order to ensure that unions enjoy financial independence.
327. The Committee had commented on other provisions which have been modified. These include the prohibition on multiple trade unions, the prohibition on trade unions' political activities, the prohibition of third-party intervention in the settlement of disputes, the list of essential services in which disputes are submitted to compulsory arbitration and the impossibility of keeping trade union membership in case of dismissal.
328. As regards the prohibition on multiple trade unions, the Committee notes that this prohibition will only be lifted from the year 2000 at the industrial and national levels, and 2002 at the enterprise level. The direct consequence of upholding these prohibitions until these dates is that the KCTU cannot be registered before a period of three years. The KCTU will therefore continue to be considered as illegal, which carries the risk of sanctions being imposed on its leaders who would continue to carry out legitimate trade union activities on the organization's behalf. It is the Committee's view that such a situation is manifestly incompatible with the fundamental principle of freedom of association that workers should have the right to establish and join organizations of their own choosing. The Committee notes, moreover, that this impossibility of obtaining registration would also apply to the organizations which were mentioned in the KCTU's initial complaint, namely the Korean Automobile Workers' Federation, the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union.
329. While, by adopting the provision in question, the Government undertakes to establish trade union pluralism in the future, the Committee cannot consider the terms of this provision to be satisfactory. In effect, the free choice of workers to establish and join organizations is so fundamental to freedom of association as a whole that it cannot be compromised by delays. The Committee therefore urges the Government to take the necessary measures to render trade union pluralism legal without delay. The application of this principle should result in the registration of the KCTU and the other trade union organizations mentioned in the preceding paragraph.
330. The Committee notes that the new provisions remove the general prohibition on trade unions' political activities. According to the texts of the main provisions transmitted by the Government, it would appear, however, that a trade union will be disqualified if its main objective lies in political or social activities. The Committee considers that the lifting of the general prohibition on political activities constitutes, without any doubt, an improvement in the application of freedom of association principles. The Committee nevertheless would need additional information on the scope of "social activities" which are mentioned in the new provision in order to be able to make an informed decision thereon. The Committee considers in effect that if this term is meant to cover all activities by organizations which are aimed at improving the general welfare of workers, then the provision in question would be in violation of the right of trade unions freely to organize their activities. The Committee requests the Government to provide information on this provision.
331. As regards the prohibition of third-party intervention in the settlement of disputes, the Committee notes that the prohibition in question has been removed. It appears, however, that employers' and workers' organizations have to notify the names of persons who could intervene as third parties with the Labour Ministry. The Committee believes that this provision would be contrary to freedom of association principles if the Minister of Labour had discretionary powers to refuse the names notified to him. The Committee considers in effect that organizations of employers and workers should have the right to choose, without any hindrance, the persons from whom they wish to seek assistance during collective bargaining and dispute settlement procedures. The Committee therefore requests the Government to confirm that such is the case within the framework of the new provisions.
332. Regarding the list of essential services enumerated in the new legislation, the Committee notes that the complainants refer to several sectors, some of which would appear to have been added to the list which had already been the subject of the Committee's previous comments. The Committee had considered previously that the law stipulated quite a broad category of public utility services which did not all constitute essential services in the strict sense of the term [see 294th Report, para. 264]. The Committee notes that the Government has not dealt with the complainants' allegations on this point. In this respect, the Committee recalls that the prohibition of the right to strike should be limited to services the interruption of which would endanger the life, personal safety or health of all or part of the population [see Digest, para. 516]. On the basis of this definition, the Committee considers that the Mint, transport, petroleum installations, banking, broadcasting and communications do not constitute essential services in the strict sense of the term. It therefore requests the Government to provide further information and take the necessary measures to ensure that the list of essential services is modified accordingly.
333. Concerning the right of dismissed workers to union membership, the Committee observes that any worker in this situation who appeals to the Central Labour Relations Commission will not be deprived of his union membership until the Commission hands down a final decision. The Committee must emphasize that a provision of this nature is incompatible with freedom of association principles since it deprives the person concerned of joining the organization of his choice. Moreover, the Committee considers that this provision entails the risk of acts of anti-union discrimination being carried out to the extent that the dismissal of a trade union activist would prevent him from continuing his trade union activities within his organization. The Committee therefore urges the Government to review the provision in question so that the principle of free affiliation will be respected.
334. Finally, the ICFTU mentions new provisions which, in its view, constitute serious restrictions on freedom of association. It refers in this regard to the replacement of strikers with other workers, to the prohibition on workplace occupations during strikes, to the prohibition on remuneration of workers for periods when they have been on strike and to the prohibition on employers from remunerating full-time union officers.
335. Regarding the replacement of strikers, the Committee observes that under the terms of the new legislation, employers are allowed to replace strikers with other workers from within the business concerned during industrial action. In cases where a union shop agreement exists and substitute workers cannot be found inside the business and significant business loss is expected to be incurred by industrial action, employers will be allowed to hire workers from outside the business concerned during a specified period with the permission of the Labour Relations Commission.
336. The Committee has already examined on several occasions cases relating to the hiring of workers during strike action. It has considered in this respect that the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association [see Digest, op. cit., para. 570]. The Committee has also considered that if a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights [see Digest, op. cit., para. 571]. Moreover, national legislation pertaining to trade union rights, and in this case the right to strike, should be in conformity with freedom of association principles. The Committee notes that the legislation contains a certain number of guarantees since the hiring takes place during a specified period, with the permission of the Labour Relations Commission. The Committee stresses, nevertheless, that this provision is only acceptable from the standpoint of freedom of association if it applies to essential services in the strict sense of the term.
337. As regards the complaint concerning the prohibition on workplace occupations during strikes, the Committee requests the Government to provide detailed information in response. However, the Committee draws the attention of the Government to the view it has adopted in several cases that "Regarding various types of strike action denied to workers (tools-down, go-slow, work-to-rule and sit-down strikes), the Committee considers that these restrictions may be justified only if the strike ceases to be peaceful" [see Digest, op. cit., para. 496]. The Committee has also decided that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries [see Digest, op. cit., para. 586].
338. The Committee notes that under the terms of the new legislation, the remuneration of workers for the strike period is prohibited. In this respect, the Committee requests the Government to provide information in response to this allegation so that it may be examined in full knowledge of all the facts.
339. As regards the prohibition on employers from remunerating full-time union officers, the Committee notes that this new provision will be applied from the year 2002. The Committee requests the Government to provide information in this respect so that it may examine this allegation in full knowledge of all the facts.
340. Having thus examined the provisions adopted by the National Assembly in December 1996, the Committee is bound to note that much remains to be done in order for the legislation to be brought into full conformity with freedom of association principles. In this respect, the Committee takes note of the Government's statement to the effect that after an agreement that was reached between the ruling and opposition parties, debates over the labour laws are to be reopened soon at the National Assembly. In these conditions, the Committee expresses the firm hope that a new examination of the legislation by the National Assembly will lead to the full application of freedom of association principles. It requests the Government to inform it of developments in this regard.
Allegations of a factual nature
341. In its previous report on this case, the Committee had urged the Government to do everything in its power to have the charges brought against Mr. Kwon Young-Kil, still president of the KCTU, dropped. In its reply of November 1996, the Government merely reiterates the information that it supplied earlier, namely that Mr. Kwon was released on bail. Furthermore, far from dropping the charges brought against Mr. Kwon (namely the violation of the prohibition of third-party intervention), the authorities issued a new warrant for his arrest for "interference in business", following the general strike action taken against the adoption of the new legislation. They also issued warrants for the arrest of 19 other trade union leaders. Five trade union leaders were finally arrested.
342. The Government has not yet furnished any observations on these allegations, but even according to the ICFTU's own statements the trade union leaders who were arrested during the most recent strikes are now released. It further appears that these warrants were withdrawn although no repeal has been formally issued. The ICFTU nevertheless provides a list of trade unionists who are still detained or wanted for events that took place prior to the most recent strikes.
343. The Committee must express its serious concern at this situation. It considers that, if the Government wishes to build a new industrial relations system founded on principles of freedom of association, it must first of all, in order to establish a climate of confidence, drop the charges brought against trade unionists for pursuing their legitimate trade union activities, including strike action, and release those who are still detained. The Committee therefore urges the Government to take the necessary measures to this end without delay and to keep it informed of any progress made in this respect. It requests the Government in particular to provide detailed information on the persons mentioned in Annexes I and II of the present report.
344. The Committee notes the latest allegations presented by the ICFTU concerning police intervention in trade union marches and the harassment that an international trade union mission sent to the country was subjected to. It requests the Government to provide its observations in this regard.
345. In view of the importance of the principles which are at stake as regards the allegations both of a legislative as well as of a factual nature, the Committee considers that it would certainly be very useful for a high-level mission to be undertaken to the country as soon as possible so that the Government can take its views into account with a view to fully implementing freedom of association principles. In the particular circumstances of this case, the Committee considers that there would be advantages if this mission were tripartite. The Committee expresses the hope that the Government will respond positively to this suggestion, which has been made in a constructive spirit with a view to assisting the Government to find appropriate solutions to the existing problems.
346. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
Arrest warrants have been issued for the
following trade union leaders
|Dan, Byung-hoe||Vice-President||KCTU (President, Korean Federation of Metalworkers' Unions -- KFMU)|
|Park, Moon-jin||Vice-President||KCTU (President, Korean Federation of Hospital Work Unions)|
|Bae, Bum-sik||Vice-President||KCTU (President, Korean Federation of Automobile Workers)|
|Lee, Young-hee||Vice-President||KCTU (President, Hyundai Trade Union Federation)|
|Kwak, Dae-cheun||President||Hyundai Mipo Shipyard Union -- KFMU|
|Kim, Im-shik||President||Hyundai Heavy Industry Union -- KFMU|
|Oh, Hyung-keun||Research Director||Halla Heavy Industry Union -- KFMU|
|Yoon, Bok-jung||General Secretary||KFMU -- South Kyunggi-do Province|
|Lee, Seung-kwan||President||Deakbn Jinheung Union -- KFMU|
|Jeun, Jae-hwan||President||Daewoo Heavy Industry Union -- KFMU|
|Joo, Ki-seung||Director for organizing||Halla Heavy Industry Union -- KFMU|
|Cheun, Suhk-bok||Dismissed worker from||Hyundai Heavy Industry|
|Choo, In-sang||Director for organizing||Halla Heavy Industry Union -- KFMU|
|Sohn, Bong-hyun||President||Hyundai Precision Industry Union|
|Heung, Kahp-deuk||President||Hyundai Motors Union|
Situation of imprisoned and wanted workers
in the Republic of Korea
(as of 28 November 1996)
|Name||Position/organization||Date of arrest||Charge||Sentence/current trial status|
|Oh, Jong-ryul||Former President, Kwangju District Teachers' Union||1995||Violation of National Security Law|
|Lee, Seung-pil*||Vice-President, Korean Federation of Metalworkers' Union||4.5.1996||Third-party intervention; strike at Hyundai Motors in 1994||10 months; pending appellate court|
|Hwang, Young-ho||President, Korea Textile Co. Trade Union||22.5.1996||Interference with business||2 years; pending appellate court|
|Im, Je-young||Welfare Secretary, Korea Textile Co. Trade Union||22.5.1996||Interference with business||Pending appellate court|
|Lee, Jeung-hoon||Publicity Secretary, Korea Textile Co. Trade Union||22.5.1996||Interference with business||Pending appellate court|
|Moon, Soon-deuk||President, SureProducture Co. Trade Union||8.6.1995||Violation of National Security Law|
|Cho, Myung-lae||General Secretary, Kumi Regional Council, Korea, Federation of Metalworkers' Unions||19.6.1996||Third-party intervention||1 1/2 years; appellate court|
|Lee, Jeung-young||Shop steward,
Shin-il Metal Trade Union
|2.7.1995||Labor Disputes Adjustment Act; interference with business;
strike in 1994
|Hong, Yuh-po||President, Masan-Changwon Regional Council of Trade Unions||5.7.1996||Interference with business; violence; interference with law and order implementation||10 months; appellate court|
|Park, Seung-ho||Dismissed worker from Hanjin Heavy Industry Co. Trade Union||8.1996||Interference with business; Labour Disputes Adjustment Act||First trial|
|Lee, Kyung-su||President, Daerim Automobile Co. Trade Union||8.8.1996||Interference with business (wanted for arrest)||First trial|
|Kim, Pyong-ki||Disputes Secretary, Daerim Automobile Co. Trade Union||8.8.1996||Interference with business (wanted for arrest)||First trial|
|Ahn, Seung-oh||Shop steward, Daerim Automobile Co. Trade Union||8.8.1996||Interference with business (wanted for arrest)||First trial|
|Kim, Ki-young||General Secretary, Changwon Branch, Doosan Machinery Trade Union||19.9.1996||Interference with business; violence; CBA process||Changwon Pol.|
|Kim, Ki-deuk||Ex-company member, Changwon Branch, Doosan Machinery, Trade Union||19.9.1996||Interference with business; violence; CBA process||Changwon Pol.|
|Im, Young-tae||President, Expiaworld Trade Union||23.9.1996||Interference with business;
|Kim, Sang-bum||Shop steward, Expiaworld Trade Union||23.9.1996||Interference with business;
|Lee, Seung-hwan||Editor-in-chief, Korea Fukoku Trade Union||10.1996||Violence|
|Lee, Jae-hyung||Director, Education and Publicity Dept., Korea Fukoku Trade Union||10.1996||Violence|
|Im, Jin-yong||Dismissed worker, LG Chemical Trade Union||8.10.1996||Protest against dismissal|
|Lee, Kang-chil*||Dismissed worker, LG Chemical Co.||8.10.1996||Interference with business;
protest against dismissal
|(warrant for arrest issued)
(wanted for arrest)
|Oh, Hyun-shik*||Dismissed worker, LG Chemical Co.||8.10.1996||Interference with business;
protest against dismissal
|(warrant for arrest issued)
(wanted for arrest)
|Lee, Chul-eui||Chair, Committee for Democratisation of Railway Workers' Trade Union||9.10.1996||Violation of National Security Law|
|Song, Ho-jun||Member, Committee for Democratisation of Railway Workers' Trade Union||9.10.1996||Violation of National Security Law|
|Kim, Woon-chul||Chairperson, Pusan Committee for Democratisation of Railway Workers' Trade Union||9.10.1996||Violation of National Security Law|
|Shim, Jong-seup||Vice-President, Halla Heavy Industry Trade Union||9.10.1996||Violation of National Security Law|
|Ahn, Ki-ho||President, Hyoseung Metal Industry Trade Union||9.10.1996||Violation of National Security Law|
|Won, Dae-seup||Shop steward, Hyundai Heavy Industry Trade Union||9.10.1996||Violation of National Security Law|
Note: The imprisoned workers documented here refer only to those who are members of the KCTU affiliated unions.
* Released on completion of the prison sentence.
Allegations: Anti-union discrimination
in the context of a restructuring process
347. The Committee examined this case at its November 1996 meeting and presented an interim report to the Governing Body [see 305th Report of the Committee, paras. 165-182, approved by the Governing Body at its 267th Session (November 1996)]. The Government sent new observations in a communication dated 6 January 1997. The Agrarian Development Institute Employees' Union (UNEIDA) (the organization concerned in the allegations of this case) sent information in a communication dated 24 January 1997 and the Latin American Central of Workers (CLAT) transmitted information in a communication dated 13 February 1997.
348. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. Previous examination of the case
349. In this case the complainant organization alleged that officers and members of the Agrarian Development Institute Employees' Union (UNEIDA) were dismissed or transferred with the aim of undermining this trade union and preventing it from participating in the restructuring process of the Agrarian Development Institute (IDA).
350. At its November 1996 meeting the Committee formulated the following conclusions and recommendations [see 305th Report, paras. 179-181]:
The Committee observes that the Government emphasizes that (1) the terminations did not take account of the trade union membership of the persons concerned, but were part of a process of restructuring and structural and operational modernization of the IDA and were based on technical grounds which had been duly approved by the Ministry of National Planning and Economic Policy; (2) mediation by the Ministry of Labour and Social Security did not result in the IDA authorities' annulling the dismissals; (3) the highest jurisdictional body, the Constitutional Chamber, rejected on their merits the appeals lodged by the officials concerned, who had alleged anti-union persecution, and ruled that the action taken by the administration had been in conformity with the law.
On previous occasions, the Committee has considered that it "can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies on the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions" [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 935]. In this respect, although the Committee observes that the Constitutional Chamber rejected the allegations of anti-union persecution put forward by the officers and members of the trade union, it cannot but note that, according to the allegations of the complainant organization -- which were not denied by the Government -- the restructuring process resulted in the dismissal of nine officers on the executive committee of UNEIDA and several other representatives. The Committee notes that the complainant and the Government do not agree as to the anti-union nature of the dismissals. The Committee also emphasizes the advisability of giving priority to workers' representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection [Digest, op. cit., para. 961].
In these circumstances, prior to reaching definitive conclusions, the Committee requests the Government and the complainant organization to indicate the total number of workers at the Agrarian Development Institute before and after the restructuring process, the number of trade union officers and representatives dismissed and the number of trade union officers and representatives prior to the restructuring process. In any event, the Committee requests the Government to respect the principles mentioned above and to investigate whether the dismissal of the UNEIDA officers and representatives in the context of the restructuring process was due to their trade union activities, in which case, they should be reinstated in their posts. Furthermore, the Committee requests the Government to review the transfers of Mr. Mario Moya Benavides and Ms. Iriabel Zumbado. The Committee requests the Government to provide information on the measures taken in this respect.
B. The Government's reply
351. In its communication dated 6 January 1997 the Government states, in response to the Committee's request for information, that before the restructuring process there were 976 officials at the Agrarian Development Institute (IDA); after the restructuring process there were 476 officials at the Institute. Before the restructuring process there were 31 trade union officers (who, according to the documentation sent by the Government, were executive committee members of UNEIDA and two other unions) and eight officers were dismissed in the context of the restructuring process (Alexis Cyrman Sanchez, Marcos Aguilar Vargas, Walter Quesada Fernández, Lorena Chacón Tellini, Walter Porras Campos, Francisco Molina Rojas, Elieth Rodríguez Cardos and Jeanette McQuiddy Artavia).
352. The Government adds that, in compliance with the Committee's recommendations, notably in relation to the investigation into the dismissal of trade union officers and representatives, the Ministry of Labour, in a ministerial directive dated 6 January 1997, stressed the need for the National Labour Inspectorate to ensure the observation and respect of laws pertaining to working conditions. Nevertheless, the Government repeats that the termination of the officials mentioned in the complaint had resulted from the modernization project, based on technical grounds, which had been duly approved by the Ministry of Planning and Economic Policy and the Civil Service Court in accordance with prevailing regulations and guaranteeing at all times the right to due process and legitimate defence. The decisions made by the administration of the accused institution were not only duly approved at the top administrative level by the Ministry of Planning and Economic Policy but their legitimacy was also confirmed by the Constitutional Chamber of the Republic, which rejected the allegations of anti-union persecution made by the Union of the IDA. Hence, no doubt can remain about the action taken by the administration being in conformity with the law.
353. The Government stressed that the termination of employment of the trade union officers in the IDA had been carried out on technical grounds owing to unavoidable staff reductions and was unrelated to their status as trade union officers, entirely in accordance with the provisions of section 192 of the Political Constitution which "authorizes the dismissal of public officials in the event of an unavoidable reduction of services, whether due to lack of funds or in order better to utilize available funds". The Government repeats the observations it made for the first examination of the case and requests that the complaint be retracted in its entirety given that it has been amply shown that no acts of anti-union discrimination occurred in this case.
354. As regards the transfer of the trade union officers Mr. Mario Moya Benavides and Ms. Iriabel Zumbado, the Government explains that in response to the recommendations of the Committee on Freedom of Association, the Ministry of Labour requested the chairman of the IDA to examine the content of the Committee's recommendation. As a result of the Ministry of Labour's involvement and in keeping with the request made by the Committee on Freedom of Association, the executive president of the IDA, seeking to create the best possible industrial relations climate, requested that its board of directors approve the decision not to transfer either Ms. Iriabel Zumbado or Mr. Mario Moya. This request was favourably received and the transfers of these officials were annulled, thus complying with the Committee's recommendation.
C. Information provided by UNEIDA and CLAT
355. The Agricultural Development Institute Employees' Union (UNEIDA) and the Latin American Central of Workers (CLAT) indicated in their communications of 24 January and 13 February 1997 that, during the restructuring process, out of a total of 21 trade union officers and representatives, 14 were dismissed (nine of these were officers of the UNEIDA executive committee; UNEIDA and CLAT provided a list of the 13 members of the UNEIDA executive board). According to UNEIDA's and CLAT's statistics, the number of workers before and after the restructuring is 809 and 413 respectively and its members represented and represent over 50 per cent of the workers at IDA.
356. With respect to the dismissal of trade union officers and representatives of the Agrarian Development Institute Employees' Union, the Committee notes the Government's reaffirmation that: (1) the terminations of employment were not carried out on the basis of the trade union status of the persons concerned but were instead due to the process of restructuring and structural and operative modernization of the IDA, and were in keeping with technical criteria duly approved by the Ministry of National Planning and Economic Policy; (2) the highest judicial body, the Constitutional Chamber, rejected on their merits the appeals lodged by the officials involved who alleged anti-union persecution, and ruled that the action taken by the administration was in conformity with the law. The Committee also observes that according to the information supplied by the Government 500 officials were dismissed (eight of whom were trade union officers) of a total of 976 (of which 31 were trade union officers belonging to the executive committees of UNEIDA and two other unions).
357. On the other hand, the Committee notes that, according to UNEIDA and CLAT, the number of workers before and after the restructuring (without taking into account -- as the Government did -- the officials classified as "day workers" and those in "special services") were 809 and 413 respectively. According to UNEIDA and CLAT (which refer only to UNEIDA and not to the other two unions at IDA), 14 trade union officers and representatives were dismissed out of a total of 21; of these 14, nine were on the executive committee which had a total of 13 members.
358. On the basis of all the information, the Committee considers that the overall proportion of trade union officers of executive committees dismissed does not seem disproportionate from a numerical point of view taking into account the total number of workers affected by the restructuring process. Nevertheless, comparing the list of members (13) of the executive board furnished by UNEIDA with the names of the eight trade union officers who, according to the Government, were dismissed, it appears that seven out of the eight officers dismissed were members of the UNEIDA executive board. In the opinion of the Committee, an analysis of the facts tends to demonstrate that the UNEIDA leaders did not benefit from sufficient protection as trade union leaders.
359. Consequently, the Committee requests the Government to take measures to facilitate the reinstatement in their jobs of the largest possible number of dismissed UNEIDA executive board members.
360. As concerns the transfer of trade union officers Mr. Mario Moya Benavides and Ms. Iriabel Zumbado, the Committee notes the Government's comments with interest, and also notes that, in accordance with the Committee's request and in order to improve the industrial relations climate, the transfers of the officers mentioned have been annulled.
361. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
The Committee requests the Government to take measures to facilitate the reinstatement in their jobs of the largest possible number of dismissed UNEIDA executive board members.
Allegations: Attempt to revoke the union authorization
of a trade union leader
362. The complaint is presented in a communication from the National Medical Union (UMN) dated 2 September 1996. The Government sent its observations in a communication dated 7 January 1997.
363. Costa Rica 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 complainant's allegations
364. In its communication dated 2 September 1996, the National Medical Union (UMN) alleges that Dr. Rafael Rojas Rímolo, a member of the UMN board, has been subjected to retaliatory measures and anti-union persecution. More specifically, the complainant organization alleges that the Executive Committee of the Costa Rican Social Security Fund ordered an investigation so that the union authorization enjoyed by Dr. Rojas Rímolo since 1993 by virtue of section 32 of the "conciliation arrangement" between the National Medical Union and the Costa Rican Social Security Fund be revoked. Dr. Rojas Rímolo is expected to return the salary he was paid during the period that the Fund granted him the authorization.
B. The Government's reply
365. In its communication dated 7 January 1997 the Government categorically denies any retaliatory action having been taken against Dr. Rafael Rojas Rímolo. The Government explains that the Internal Audit of the Costa Rican Social Security Fund, a body accountable to the office of the General Treasury Inspector of the Republic, had discovered that an authorization including wage entitlements had been irregularly granted to Dr. Rojas Rímolo (this point came out during the interpretation of a Constitutional Chamber judgement relating to arbitral awards in the public sector) and had made the corresponding recommendations to rectify the situation. The administrative investigation resulted in a favourable decision for Dr. Rojas Rímolo which demonstrates, once again, the absolute transparency of the procedure and utmost respect for national procedures and legislation. A resolution dated 24 October 1996, issued by the Executive Committee of the Costa Rican Social Security Fund, ordered that the administrative record of Dr. Rojas Rímolo's case be filed, since it was concluded that he had not acted in bad faith. As clearly proven, there is not and has not been any anti-union persecution against Dr. Rojas Rímolo, nor was the authorization granted revoked, nor were proceedings instituted for him to return the monies received during the validity of the authorization.
366. The Government regrets that the complainant organization lodged an appeal with the Committee on Freedom of Association, prior even to the administrative procedure being concluded and its result known.
367. The Committee notes that the administrative record relating to the trade union leader Mr. Rafael Rojas Rímolo has been filed, and that his union authorization was not revoked and proceedings were not instituted for him to return the monies received during the validity of said authorization.
368. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.
1 Article 55: "The right of collective bargaining to regulate labour relations, with the exceptions provided by the law, is guaranteed. It is the duty of the State to promote concertation and other measures necessary for the resolution of collective labour conflicts."
Article 56: "The right to strike is guaranteed, except in the case of essential public services defined by legislature. The law will regulate this right."
This provision is followed by the third paragraph mentioned above.
3 In carrying out the functions assigned to it by the Constitution and legislation, the Ombudsman has the obligation of carrying out investigations and reporting on violations of human rights presumed to have been committed by workers employed by the State and its decentralized bodies, members of the police and individuals in public office or who have been assigned or awarded the performance of a public service.
6 General Farouk Yanine has been charged with conspiracy to form paramilitary groups. During the mission's visit, the Prosecutors' Special Human Rights Unit sentenced him to preventive detention without bail. Cf. El Espectador, 12 Oct. 1996, p. 1.
9 The public credibility enjoyed by the General Prosecutor is clear from a survey published on 12 October on the front page of the El Espectador newspaper, in which 51 per cent of respondents stated that they intended to vote for him if he were to stand for election as president.