Observación (CEACR) - Adopción: 1991, Publicación: 78ª reunión CIT (1991)

The Committee refers to its previous comments and takes note of the Government's report received in January and November 1990.

1. Application of the Convention in the Public Service

In previous comments, the Committee has noted that by virtue of the provisions of the national legislation (Decrees Nos. 2400 of 1968 and No. 1950 of 1973) the power of free appointment and dismissal may be exercised by a large number of public servants and applies to many posts, and that this could lead to the adoption of decisions that are arbitrary and contrary to the Convention. The Committee takes note of Act No. 61 of 1987 transmitted by the Government, which, inter alia, issues rules on careers in the administration. Section 1 of this Act amending and supplementing Decree No. 2400, specifies the posts subject to free appointment and dismissal. The Committee notes that free appointment and dismissal still apply to a large number of posts and have been extended to those of rectors, vice-rectors and deans of universities and their secretariat staff, and to employees of the General Directorate of Customs and Taxes.

With regard to public employees in industrial and commercial state enterprises (section 1(i) of Act No. 61 of 1987) which are included in the category subject to free appointment and dismissal, the Committee duly notes that section 3 of Decree No. 1950 of 24 September 1973 defines public employees as persons holding the management posts or positions of trust specified in the statutes of such enterprises. The Committee wishes to point out that, even in the case of management posts or positions of trust, the appointment and dismissal of their holders should not automatically be freed from the protection against discrimination laid down in the Convention, particularly discrimination on grounds of political opinion.

The Committee notes in this connection that according to Report No. 259 of the Committee on Freedom of Association (Case No. 1465) (Executive Decrees No. 1044 of 1987 and No. 510 of 1988), 478 "official workers" were reclassified as public employees at Colombian National Railways and are therefore subject to free appointment and dismissal and consequently to possible discrimination contrary to the Convention. In this connection, the Committee refers to its General Survey of 1988 on Equality in Employment and Occupation, and particularly to the indications concerning the manner in which the terms of Article 1, paragraph 2, of the Convention should be applied, according to which any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. As regards the public service in particular, it is admissible to take account of the political opinions of those concerned only in the case of certain higher posts which are directly concerned with implementing government policy.

In its previous observation, the Committee referred to the allegations of the United Central Workers' Organisation (CUT) that dismissals for political reasons are still occurring in the public sector owing to the absence of a true administrative career structure and that the relevant provisions in force are only applied at national level. The Committee notes the Government's statement in its report, that the administration is alert to the matter and has exercised strict control to avoid further dismissals of this nature which occur particularly at regional level. The Committee notes with interest the Circular of 28 June 1989 sent for this purpose by the Ministers of Government and Labour and Social Security to the heads of all provincial and local administrations.

The Committee also notes with interest Act No. 10 of 1990 to reorganise the National Health System and establish rules governing the administrative careers of personnel in the National Health system, including the provincial and local public health sectors. Section 27 of the Act provides that municipalities must apply the administrative career rules by 30 July 1991 at the latest, and the other levels of administration before 30 December 1990. The Committee notes the Government's statement that, pending the issuance of rules governing careers in local and provincial administrations for public employees in all other departments, municipalities and mayors shall apply to their employees the disciplinary system established for public employees in the national administration in Act No. 13 of 1984 and Regulatory Decree No. 482 of 1985.

The Committee requests the Government to report on measures taken or envisaged to limit the jobs subject to free appointment and dismissal at both national level and local levels of administration so as to prevent dismissals of a discriminatory nature and particularly dismissals on grounds of political opinion or affiliation. The Committee hopes that the Bill to establish an administrative career structure at levels other than the national level, to which the Government referred previously, will be adopted shortly and that the Government will continue to report on measures taken to eliminate discrimination in employment for political reasons, in conformity with the Convention.

2. Discrimination on grounds of sex

The Committee recalls the allegations of the CUT concerning practices which are discriminatory on grounds of sex: negative pregnancy test before employing a woman, lower wages of women in percentage terms and absence of protection against sexual harassment.

The Committee again requests the Government to provide information on the allegations submitted by the United Central Workers' Organisation and on any measures taken or envisaged to implement the Convention in respect of the matters raised, in particular on the practical effect given to the provisions of Decree No. 1398 of 1990 which aims, inter alia, at eliminating discrimination in employment and provides for measures for inspection and supervision in this field.