Rapport intérimaire - Rapport No. 322, Juin 2000

1. 94. The Committee last examined this case at its November 1999 meeting (see 319th Report, paras. 180-201).
2. 95. The Government sent its observations in communications dated 9 March and 9 May 2000.
3. 96. 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. Previous examination of the case

1. 97. In its previous examination of the case the Committee regretted that the Government had not communicated its observations on a number of allegations: non-compliance with a collective agreement, challenges to trade union statutes, assault against trade union members, dismissal of trade union officials, illegal deductions for days of strike action, and refusal to negotiate. At the time the Committee made the following recommendation (see 319th Report, para. 201):
2. Deploring that the Government has not communicated its observations on a certain number of allegations, the Committee requests the Government to send without delay its observations on all pending allegations.
3. B. The Government's reply
4. 98. In its communications dated 9 March and 9 May 2000 the Government states that:
5. -- Regarding the dismissal of trade union leaders, the Minister of Labour ruled in Decision No. 00076 of 22 January 1999 that the parties were at liberty to initiate proceedings through the ordinary labour courts. Some of the officials of ASEMIL lodged an appeal (accción de tutela) in the matter of their dismissal on the grounds that their work stoppages on 3, 7 and 14 April in an essential public service had been declared illegal. The Constitutional Court reviewed the case of three officials and, in the interests of due process, issued ruling SU036 of 22 January 1999 ordering that they be reinstated. In compliance with that ruling, the Ministry of National Defence issued Decisions Nos. 00246 and 00247 of 25 March 1999 ordering that Aníbal Andrés Mendoza Tovar and Eduardo Rodríguez Viaña, whose names were on the company payroll, be reinstated.
6. -- Regarding the refusal to negotiate, the Ministry of Labour and Social Security's regional management of Cundinamarca issued Decision No. 001323 of 15 June 1999 whereby it ruled on the various appeals that the complainant had lodged alleging the violation of freedom of association in connection with the negotiation of the list of demands presented by ASEMIL; this exhausted all government channels. (With its reply the Government enclosed the text of the decision wherein the Ministry of Labour resolves "to refrain from taking administrative action against the Ministry of National Defence".)
7. -- With regard to non-compliance with the collective agreement of 6 May 1997 which contained provisions on the payment of overtime, night work and work on Sundays and holidays, the non-equalization of wages and partial payment of amounts due in the event of redundancy, the Ministry of Labour conducted an investigation through the Monitoring and Control Division of the Technical Inspection and Monitoring Sub-Directorate and in a ruling dated 3 February 2000 decided that it was not competent to pursue the investigation any further. Given the type of employment relationship of the public officials concerned and the special regulations under which they are employed (Decree No. 1042 of 1978, Decree No. 1214 of 1990, Act No. 352 of 1999 and other relevant rules and regulations), the Ministry of Labour is not in a position to rule on the complaints submitted inasmuch as they relate to the alleged violation of individual rights; the Ministry can only rule on alleged violations of the collective rights of the officials employed. Nevertheless, the case has been transmitted to the Attorney-General of the Nation, who has asked the District Attorney-General to launch an inquiry.
8. -- Regarding the challenges to ASEMIL's statutes, the Government encloses with its reply a decision of the Ministry of Labour and Social Security of December 1999 resolving that the amendments to the statutes shall be officially registered, and a record of proceedings of the same Ministry noting that no appeal has been lodged against the said decision.

C. The Committee's conclusions

1. 99. The Committee observes that, following its examination of this case at its November 1999 meeting, the following allegations were still pending: (1) the Ministry of Defence has not implemented an agreement signed with ASEMIL on 6 May 1997, which contained provisions regarding stability of employment, non-resort to reprisals, wages, etc.; (2) the Ministry of Defence has challenged the new statutes of ASEMIL (the complainant states that the Ministry of Labour found no grounds for such a challenge); (3) the workplaces in the Naval Hospital of Cartagena and the Central Military Hospital of Bogotá were taken over by the military during the national protest movement of 20 and 21 May 1998; (4) posters alluding to the protest movement were destroyed in the Central Military Hospital of Bogotá and trade unionists were assaulted, leaving 42 of them wounded (the complainant gives the names of six of those wounded, with details as to their injuries and the resulting degree of incapacitation); (5) members of the complainant organization's executive board were dismissed (the complainant gives the names and posts of 14 union officials) after the strikes in the Central Military Hospital and the Naval Hospital of Cartagena had been declared illegal (the Constitutional Court ordered that three of the dismissed officials be reinstated); (6) more than a month's pay was docked from over 60 union members in the Naval Hospital of Cartagena and a week's wages from 200 members in the Central Military Hospital, even though the strike was only for two days; (7) the authorities of the Ministry of Defence refused to negotiate the demands of the more than 1,000 workers in the country's medical dispensaries.
2. 100. Regarding the alleged non-compliance of the Ministry of Defence with a collective agreement signed with the complainant on 6 May 1997, which contains provisions regarding stability of employment, wages, the payment of overtime, etc., the Committee notes the Government's statement that the Ministry of Labour and Social Security carried out an investigation into a complaint on the subject and decided that it was not competent to pursue its investigation any further on the grounds that the complaints referred to alleged violations of individual rights, but that the case was nevertheless transmitted to the Attorney-General of the Nation who has launched an inquiry. The Committee recalls that it has already had previous occasion to state that "agreements should be binding on the parties" (see Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 818). In these circumstances, the Committee urges the Government to take the necessary steps to ensure compliance with the May 1997 agreement between the Ministry of Defence and ASEMIL. The Committee also requests the Government to keep it informed of the results of the investigation carried out in this respect by the Attorney-General.
3. 101. Regarding the alleged dismissal of 14 trade union officials on the complainant organization's executive board, the Committee notes the Government's statement that the Constitutional Court issued a ruling in January 1999 ordering the reinstatement of three of these officials and that two of them have already been reinstated. At the same time, the Committee notes the complainant's statement that, as a result of a complaint (acción de tutela) lodged subsequently to that before the Constitutional Court, all the dismissed union officials were reinstated. The Committee nevertheless observes the complainant's allegation that the said union officials have not been paid the compensation due to them for the time they were suspended from their duties. In the circumstances, the Committee requests the Government to ensure that all the reinstated union officials are paid the wages due to them without delay.
4. 102. Regarding the alleged refusal of the Ministry of Defence to negotiate the demands of the more than 1,000 workers in the country's dispensaries, the Committee notes the Government's statement that, in connection with an appeal lodged by the complainant, the Ministry of Labour ruled that it was not in a position to take action against the Ministry of Defence. The Committee recalls in this respect that "measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements", as well as "the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations" (see Digest, op. cit., paras. 781 and 814). In these circumstances, the Committee requests the Government to endeavour to promote collective bargaining between the Ministry of Defence and the trade union organizations representing the workers in the dispensaries.
5. 103. Regarding the alleged challenge to the complainant's new statutes, the Committee observes that the Government has communicated to it a decision of the Ministry of Labour and Social Security ordering that the amendments to the statutes of ASEMIL should be officially registered and a record of proceedings of the same Ministry noting that no appeal has been lodged against the said decision. In these circumstances, the Committee does not intend to pursue its examination of this allegation any further.
6. 104. Finally, the Committee deeply regrets that, despite the dispatch of a direct contacts mission to Colombia, the Government has not communicated its observations on the following allegations that were still pending from its previous examination of the case: (1) the workplaces in the Naval Hospital of Cartagena and the Central Military Hospital of Bogotá were taken over by the military during the national protest movement of 20 and 21 May 1998; (2) posters alluding to the protest movement were destroyed in the Central Military Hospital of Bogotá and trade unionists were assaulted, leaving 42 of them wounded (the complainant gives the names of six of those wounded, with details as to their injuries and the resulting degree of incapacitation); and (3) more than a month's pay was docked from over 60 union members in the Naval Hospital of Cartagena and a week's wages from 200 members in the Central Military Hospital, even though the strike was only for two days. The Committee calls on the Government to send its observations on these allegations as a matter of urgency.
7. 105. The Committee observes that, during the direct contacts mission in Colombia in February 2000, the complainant organization has submitted new allegations in a communication dated 15 February 2000, which has been transmitted for comments to the Government. Given the recent date of these allegations, the Committee is not in a position to examine these allegations in the present report.