Rapport définitif - Rapport No. 304, Juin 1996

1. 179. The complaint is contained in a communication from the General Confederation of Democratic Workers (CGTD) dated 3 May 1995.
2. 180. The Government sent its observations in a communication dated 25 April 1996.
3. 181. Colombia 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

1. 182. In its communication dated 3 May 1995, the General Confederation of Democratic Workers (CGTD) alleges that on 16 July 1994, persons working for several foundations (Juan M. Corpas Clinic, Lavfarve Laboratory of Plant Pharmacology and the Juan M. Corpas School of Medicine) established the Trade Union of Health Institute Workers (SITRAINSA), a first-level organization for that branch of activity. According to section 1 of its by-laws it is made up of "... persons who work in hospitals, clinics, surgeries, laboratories, bodies, institutions, centres, enterprises or entities that provide health services in general, and other bodies that protect, promote or finance health and provide recuperation or rehabilitation facilities". The by-laws of the employer bodies concerned provide for the investigation, promotion, dissemination and provision of health services. However, pursuant to resolution 02889 of 11 August 1994, the Ministry of Labour refused to include SITRAINSA in the trade union register because it is not made up of "... individuals who render their services to several enterprises operating in the same branch of activity ...". The trade union appealed against the decision and pursuant to resolutions Nos. 03627 of 25 September 1994 and 00003 of January 1995, the Ministry of Labour reaffirmed its refusal to recognize the right of these workers to organize by withholding legal personality from their organization.
2. 183. The CGTD adds that on 22 February 1994, the Trade Union of Workers of the National Federation of Coffee Producers submitted a list of demands on which negotiations ended on 30 April without any agreement between the parties. Because it is a minority union, it had no choice but to request the Ministry of Labour to convene a court of arbitration to settle the dispute. The national assembly of delegates decided on this course of action, as provided for in the by-laws duly approved by the Ministry. The Ministry of Labour denies that these union members are entitled to such a right on the grounds that a decision to place a matter before the court of arbitration must be taken by all the workers at the enterprise. The geographical distribution of the union members meant that this was logistically and economically impossible for the organization.
3. 184. According to the complainant, the Ministry of Labour made the same decision with regard to workers at the Tequendama Hotel in the city of Santa Fé de Bogotá, who were members of the National Trade Union of Workers in the Hotel, Catering and Allied Industries (HOCAR, Bogotá branch) and thus violated their rights. In this case, the Ministry of Labour claims that it wanted HOCAR to hold a national assembly, this being the correct procedure for workers to submit their claims to a court of arbitration. The Ministry is overlooking the fact that, according to the trade union's by-laws, branch assemblies are fully competent to take such a decision. The Bogotá branch of HOCAR had thus acted in accordance with statutory procedures.
4. 185. With regard to the National Union of Commercial Workers (SINTRACOMERCIO), which has members in different enterprises operating in this branch of activity, the employer, the Colombian Sewing Machine Company S.A. (SINGER) failed to reach agreement with the union on its list of claims, which is why the workers' organization was obliged to ask the Ministry to convene a court of arbitration to settle the labour dispute. Once again, the Ministry fell back on the same arguments to refuse to convene the court even though according to the union's by-laws, which had been approved by the Ministry, the branch meeting was competent to submit such a request. Workers at the Planeta Colombiana Editorial S.A., who are also affiliated to SINTRACOMERCIO, found themselves in the same position.
5. 186. The CGTD also alleges that the Trade Union of Workers of the National Printing Press (SINTRAIMPRENAL) submitted a list of claims which it hoped would to lead to a collective labour agreement, and ensure the economic, social and labour rights they were entitled to as workers for a state commercial and industrial body. Irrationally, the authorities systematically refused to open negotiations on SINTRAIMPRENAL's list of claims, on the flimsy pretext that the workers were public employees and as such not entitled to submit such lists, thus blatantly disregarding current legislation that defines the National Printing Press as a state-run industrial and commercial body. The Ministry of Labour endorsed the position of the Ministry of Justice and Law and INPEC and agreement was reached only after protest action was taken by the workers.
6. 187. The CGTD also alleges that various trade union organizations have requested approval for amendments to or the adoption of their by-laws by the Trade Union Registration Division of the Ministry of Labour. The Ministry has responded with observations in which it assumes the right to insist that issues which are the sole preserve of trade union organizations under ILO Conventions be included or excluded, failing which a request will be turned down. The complainant organization mentions the following cases in particular:
   • - Trade Union of Workers of the Department of El Meta, which adopted new by-laws and sought approval from the Ministry of Labour. On this occasion, the Ministry's observations were designed to force the trade union to change decisions that had the sovereign approval of its general assembly. The Ministry stated that: (1) there could be no recourse to the legitimate right to strike; (2) procedures were needed to accept or reject a member's apologies for not attending general meetings; and (3) the power of the union's president to delegate authority and receive donations had to be approved by the general assembly.
   • - On 6 March 1995, pursuant to resolution 000682, the head of the Trade Union Registration Division refused to register section 69 of the by-laws of the General Federation of Democratic Workers (CGTD, Valle del Cauca branch) which states that "in view of their economic situation, trade union organizations in the agricultural sector shall make monthly contributions to the Federation according to the financial situation of each organization, on the basis of agreements to be signed by the parties stating the amount and duration of such payments". He goes on to say that this situation is unfair towards other affiliated organizations, disregarding the fact that the paragraph reflects the specific situation and needs of the workers and their organizations. Secondly, with regard to the registration of the Federation's Executive Committee, the Ministry refuses to register Jaime Quintero Reyes, the President; Jorge Vásquez Nivia, the General Secretary; Alfonso Vargas Tovar, First Vice-President; Jairo Galves Rojas, Assistant General Secretary; and Javier González, Assistant General Secretary of Finances, alleging that in the Federation's constitution "trade union" of the said officials is given as the place of employment, and that in the list of the members of the Executive Committee, their occupation is given as "trade union member". According to the Ministry, the officials fail to meet the minimum requirements for membership in the Executive Committee because trade union member does not count as an occupation.

B. The Government's reply

1. 188. In its communication of 25 April 1996, the Government states that as a result of the intervention of the Ministry of Labour a solution was found to the disputes involving the Trade Union of Workers of the National Federation of Coffee Producers of Colombia and the Trade Union of Workers of the National Printing Press.
2. 189. As regards the allegation concerning the non-registration of the legal personality of the Trade Union of Health Institute Workers (SITRAINSA), the Government states that the Ministry of Labour adopted this decision in the light of section 356 of the Substantive Labour Code (section 40 of Act 50 of 1990) which states: "workers' trade unions shall be classified as follows: (a) ... ; (b) by industry or branch of economic activity, if they are made up of individuals providing their services in several enterprises of the same industry or branch of economic activity". The Standard International Classification of Occupations includes in its contents the divisions, associations and groups which identify the economic activity and the social objective of each and every occupational category. It is the groups identified by different codes which in the end determine the classification set by labour law, and to fail to accept this would be equivalent to generalizing any labour activity and disregarding in the process the different interests which exist in an industry or specific activity and thereby delegitimizing the employment and future prospects of the workers.
3. 190. As regards the allegations concerning the failure to convene a court of arbitration on the disputes to which the HOCAR National Trade Union (members employed at the Hotel Tequendama), the National Union of Commercial Workers "SINTRACOMERCIO" (members employed in the Singer enterprise) and affiliated workers at the Planeta Colombiana Editorial S.A. were parties, the Government states that as a general rule and in accordance with the provisions of legislation, the decision to submit a labour dispute to a court of arbitration should be made by at least the absolute majority of the members of the trade union body; that it is not valid to state that in the case of minority industrial trade unions (as in the cases mentioned by the complainant), such decision may be taken by a general assembly made up only of members of the respective enterprise, which as an exception is established by section 51 of Act 50 of 1990 as regards majority industrial trade unions and associations. Therefore in the case of a minority enterprise trade union, the latter may in a general assembly of members, and provided that there is a quorum, decide to submit a labour dispute to arbitration. In the case of minority industrial trade unions or associations, this decision must be taken in a general assembly of the trade union and not only by the workers of a specific enterprise, who are members of the respective trade union.
4. 191. Furthermore, the Government adds that the Ministry of Labour has legal powers to issue objection orders during the procedure for registration of trade union organizations and for the amendment of by-laws under the provisions of section 366(2) of the Labour Code (amended by section 46 of Act 50 of 1990), which states: "2. In the event that the application does not fulfil the requirements set forth in the previous section, the Ministry of Labour and Social Security shall formulate in writing to the parties concerned the respective objections with a view to ensuring the necessary corrections." Section 12 of the Code of Administrative Proceedings stipulates: "... if the information or documents provided by the party concerned in requesting administrative proceedings are not sufficient for a decision to be made, the party shall be requested, on just one occasion, and very explicitly (to provide such information) ... ." As a result of the above, the observation orders to which mention is made in the complaint were issued, and which were based, inter alia, on the following objections:
   • - Trade Union of Official Workers of the Department of El Meta. The order requested the cancellation of the strike declaration which infringed section 430 of the Substantive Labour Code, which prohibits strikes in public services and indicates amongst other activities: "(a) those which are provided in any of the branches of the public authority", which is the case of official workers providing services in the Department of El Meta. As regards the "procedure for accepting or not apologies from members for their failure to attend general meetings", a request was made to amend this provision since anyone who failed to attend a general assembly for reasons of force majeure would be sanctioned and apologies presented subsequently would not be accepted, contrary to section 42(9) of Act 50 of 1990, which prescribes that the by-laws should include disciplinary sanctions, ... with a hearing, at any event, of the persons concerned and logically this would occur at a later time. As regards the matter concerning the submission for approval by the general assembly of the power granted to the president of the trade union to delegate authority and receive donations, etc., the order requested clarification to the effect that transactions of receipt, exchange or sale should require the prior approval of the general assembly since any transaction involved expenditure and according to the amount should be approved by the general assembly in accordance with section 19 of Act No. 11 of 1984, since for example an exchange transaction is a contract whereby the parties mutually undertake to exchange something for something else, although a case might also arise in which a fixed asset is exchanged for another with a lower value and the remainder paid in cash, with this payment in cash resulting in expenditure which must be subject to the above-mentioned provisions of section 19 of the above-mentioned Act.
   • - General Federation of Democratic Workers (CGTD), Valle del Cauca. Under resolution No. 000682 of 6 March 1995, it was decided to enter this trade union into the trade union register but on registering the by-laws exception was made of the first paragraph of section 69, which infringed section 42(7) of the Act of 1990, since this provision establishes for all affiliates a single amount of ordinary contributions and does not make any distinctions and even less leaves such distinctions to the discretion of trade union officials, since the above-mentioned section 42(7) stipulates as one of the minimum requirements that the by-laws of any trade union organization must stipulate the amount and periodicity of the ordinary contributions and their form of payment. In the same way, the above-mentioned resolution No. 000682 did not register Messrs. Jaime Quintero Reyes, Jorge Vásquez Nivia, Alfonso Vargas Tovar, Jairo Galvez Rojas and Javier González as officials of the Federation, since section 422 of the Substantive Labour Code establishes the following requirements for a member of the management committee: "... (b) that he is an active member of the association; (c) that he has been regularly engaged for more than one year; ... ." Section 419 of the Substantive Labour Code stipulates: "for the establishment of any federation or confederation of trade unions, the representatives of the same who sign the act of establishment must be specifically empowered by the respective general assemblies." The above-mentioned persons were not members of any of the founding organizations of the Federation and have not been elected representatives of any of the founding trade unions, a sine qua non requirement for attendance at the constituent assembly of the Federation.

C. The Committee's conclusions

1. 192. The Committee notes that in this case, the complainant organization has alleged violations of the right to establish trade union organizations the right to draw up trade union by-laws, the right to the free election of trade union representatives, and the refusal of the authorities to begin arbitration within the framework of collective bargaining.
2. 193. With regard to the refusal to register the Trade Union of Health Institute Workers because it is not made up of individuals who render their services to several enterprises operating the same branch of activity, the Committee notes that the Government bases its refusal to register on the basis of the classifications of types of unions contained in the Labour Code, the interest of the workers and on the criteria of an ILO publication (Standard International Classification of Occupations). The Committee notes that this publication is not intended to regulate the kind of workers who may establish trade unions but to provide guidelines, in particular for the purposes of preparing statistics. The Committee notes that the foundations covered by the union operate in the hospital, pharmacological and medical teaching sectors. In this respect, the Committee wishes to emphasize that pursuant to Article 2 of Convention No. 87, "workers ..., without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization" and that the right of association and to establish trade union organizations should be permitted at the grass-roots level for workers in generic sectors such as the health sector. The Committee thus requests the Government to take steps to register the Trade Union of Health Institute Workers so that it can obtain legal personality.
3. 194. With regard to the alleged refusal by Ministry of Labour officials to convene a court of arbitration at the request of several trade unions within the framework of collective bargaining, on the grounds that no agreements had been reached with the Tequendama Hotel, certain enterprises whose workers are affiliated to the HOCAR trade union, the Colombia Sewing Machine Company S.A. and the Planeta Colombiana Editorial S.A. enterprise, the Committee notes that according to the Government the decision to submit a labour dispute to a court of arbitration should be taken by the absolute majority of the members of the trade union organization, including in the case of minority industrial trade unions. The Committee calls on the Government to promote voluntary negotiation between the parties with a view to settling the disputes in the enterprises in question. Furthermore, the Committee emphasizes that it is for the trade unions themselves to establish criteria to have recourse to arbitration.
4. 195. The Committee notes that, according to the Government, the disputes in which the Trade Union of Workers of the National Federation of Coffee Producers of Colombia and the Trade Union of Workers of the National Printing Press were involved, were resolved due to the intervention of the Ministry of Labour.
5. 196. In respect of the alleged administrative obstacles preventing unions from drawing up and adopting by-laws as they choose, and freely electing workers' representatives, the Committee notes that the Government states that legislation allows objections to be made in these matters if legislation is disregarded. The Committee believes that in the case of the amendments to the by-laws of the Trade Union of Workers of the Department of El Meta, the denial of the right to strike to public officials exercising authority in the name of the State is not a violation of the principles of freedom of association. However, the requirements that the union's by-laws be amended to include procedures on the acceptance of apologies from members who do not attend general meetings and that the general meeting must approve the power given to the union's president to delegate authority and receive donations contravene the principle of non-intervention of authorities in trade union affairs and of trade union autonomy. The Committee believes that these issues should be dealt with in the union's by-laws as it chooses, without interference by the authorities which should not overprotect members regarding matters which have been adopted and dealt with by the general assembly. The same goes for the financing of trade union organizations, and thus the Committee regrets that the Ministry of Labour rejected section 69 of the by-laws of the General Federation of Democratic Workers (CGTD, Valle del Cauca branch) which provides for the payment of contributions by grass-roots agricultural organizations to the Federation according to the financial situation of each organization. In these circumstances, the Committee requests the Government to guarantee the right of the Trade Union of Workers of the Department of El Meta and the General Federation of Democratic Workers (CGTD, Valle del Cauca branch) to draw up their union by-laws in full freedom, it being understood that the public servants exercising authority in the name of the State may be denied the right to strike.
6. 197. Finally, with regard to the authorities' alleged refusal to register the Executive Committee of the General Federation of Democratic Workers (CGTD, Valle del Cauca branch) the Committee notes that according to the Government, legislation requires the founders of a federation to be members or representatives of one of the founder organizations or the Federation. The Committee believes that it is for the unions themselves to fix the conditions and modalities to elect their leaders. The Committee requests the Government to register the Executive Committee of the General Federation of Democratic Workers (CGTD, Valle del Cauca branch).