Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 334, Juin 2004

1. 397. The Union of Public Servants of the Districts and Municipalities of Colombia (UNES) presented the complaint in a communication dated 1 September 2003. On 29 September 2003 it presented new allegations, and on 12 November and 12 December 2003, and 26 January 2004 it sent further information. The Single Confederation of Workers (CUT) presented new allegations in a communication dated 14 November 2003.
2. 398. The Government sent its observations in a communication dated 3 December 2003 and two communications dated 4 February 2004.
3. 399. 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 complainants’ allegations

1. 400. In its communications of 1 and 29 September, 12 November and 12 December 2003 and 26 January 2004, the Union of Public Servants of the Districts and Municipalities of Colombia (UNES) alleges the mass dismissal of workers at the National Railways Company (ENF) and at the National Telecommunications Company (ENT) in 1991 and 1995 respectively. The complainant organization states that, in the case of the ENT, the dismissals caused the disappearance of the trade union organizations SITTELECOM, ATT and ASSITEL. In neither case were consultations held with the trade union organizations before proceeding with the dismissals; however, the companies held conciliation hearings on an individual basis with each of the workers. In the case of the ENF, the complainant organization attaches a copy of a reply sent to the organization by the Ministry of Social Protection, which shows that the president of the Single National Trade Union of Railroad Workers and National Railways, an organization which at that time represented the employees of the ENF, was a key member of the advisory committee for procedures relating to closing down the company.
2. 401. In its communication of 14 November 2003, the Single Confederation of Workers (CUT) alleges the mass dismissal, between 1991 and 1992, of approximately 350 workers at the Ministry of Finance and Public Credit, the majority of these workers being members of the Trade Union of Employees of the Ministry of Finance and Public Credit, among whom were the members of the executive committee of the trade union. According to the complainant organization, in order to carry out the dismissals, the Ministry merged the Taxation Directorate with the Customs Directorate, giving rise to DIAN, which, in turn, established the General Directorate of Taxation Support. Subsequently, there was a transfer of DIAN employees, previously chosen by the Ministry, 80 per cent of whom belonged to a trade union and among whom were the members of the executive committee. Once the transfer of employees had been carried out, the Ministry of Finance issued Resolution No. 00101 of 1992 in which it approved a retirement plan with compensation for the recently established General Directorate of Taxation Support. The complainant organization adds that a short time after the dismissals, the Ministry employed new workers who have filled these posts up until the present time.

B. The Government’s reply

1. 402. In its communications of 3 December 2003 and 4 February 2004, the Government indicates that the restructuring of public bodies is part of its responsibilities and it emphasizes that the parties concerned had not taken advantage of the appropriate legal recourse since the restructuring began in spite of its being available and in spite of the time passing. The Government adds, moreover, that the conciliation hearings were legal acts that were held between responsible persons and that they are res judicata, provided that the agreement has been freely given. Moreover, any worker that considers that the conciliation hearing in which he or she took part was not valid had three years to appeal before the judicial authorities, after which time the statutory limitation laid down in article 150 of the Procedural Labour Code became effective. The Government emphasizes that the dismissals referred to in the allegations date from 1991, 1992 and 1995.

C. The Committee’s conclusions

1. 403. The Committee notes that the allegations in this case are similar to those examined by the Committee on a previous occasion [see 330th Report, Case No. 2151, paras. 528-543]. In a general way, the Committee recalls that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or 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 edition, 1996, para. 935].
2. 404. With regard to the restructuring being carried out at the National Telecommunications Company (ENT) and the National Railways Company (ENF), the Committee notes that the complainant organization the Union of Public Servants of the Districts and Municipalities of Colombia (UNES) alleges that consultation was not carried out before the mass dismissals took place but that there were conciliation hearings on an individual basis with the workers and that, in the case of the ENT, these mass dismissals caused the disappearance of the trade union organizations SITTELECOM, ATT and ASSITEL. The Committee notes that, according to the Government, the conciliation hearings that took place with the workers on an individual basis at both companies were legal and that, in spite of the time passing, the workers did not take advantage of the legal recourse available, which has now expired as the statutory limitation has taken effect for the events that took place in 1991 and 1995. Although the closure of the trade union organizations SITTELECOM, ATT and ASSITEL is regrettable, the Committee is not in a position to decide, from the information contained in the allegations, whether the restructuring was carried out solely for rationalization purposes or whether, underlying this, there was anti?union discrimination.
3. 405. The Committee notes that, with regard to the alleged lack of consultation in the case of the National Railways Company (ENF), the communication from the complainant organization shows that the president of the National Single Trade Union of Railroad Workers and National Railways, which was representing the workers at that time, participated as an adviser in the procedures to close down the National Railways Company. However, with regard to the restructuring of the ENT, the Committee notes that nothing in the Government’s reply shows that consultations took place or that an agreement was attempted with the trade union organizations. In this respect, the Committee has indicated on a number of occasions that it can only regret that in the rationalization and staff-reduction process, the Government did not consult or try to reach an agreement with the trade union organizations [see Digest, op. cit., para. 935]. The Committee requests the Government to ensure that the proper consultations are carried out with the relevant trade union organizations in the future when restructuring procedures are being undertaken.
4. 406. With regard to the restructuring carried out at the General Directorate of Taxation Support of the Ministry of Finance and Public Credit, the Committee notes that, according to the Single Confederation of Workers, this took place shortly after the Directorate was established and after workers from other departments of the Ministry of Finance were transferred to this body to carry out their tasks, 80 per cent of these workers being members of the Trade Union of the Ministry of Finance and Public Credit, including the executive committee. The Committee also notes that, according to the allegations, shortly after the 350 employees were dismissed, new employees were hired. The Committee notes that, according to the Government, restructuring falls within its responsibilities and that the workers had available to them internal legal channels but that those were no longer available because the statutory limitation had taken effect. The Committee regrets to note, however, that the Government makes no reference to the way in which the restructuring took place, as pointed out by the complainant. In these circumstances, the Committee requests the Government to take steps to ensure that an investigation is carried out to determine the alleged anti-union nature of this restructuring and to keep it informed in this respect.