Rapport intérimaire - Rapport No. 349, Mars 2008

1. 614. The Committee last examined this case at its March 2007 meeting and presented an interim report to the Governing Body [see 344th Report, paras 725–801, approved by the Governing Body at its 298th Session].
2. 615. The General Confederation of Labour (CGT) sent new allegations in a communication dated 15 March 2007.
3. 616. The Government sent its observations in communications dated 9 April and 4 July 2007.
4. 617. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 618. On its previous examination of the case in March 2007, the Committee made the following recommendations [see 344th Report, para. 801]:
2. (a) With regard to the allegations relating to the limitation of the right of collective bargaining by virtue of the recent adoption of Legislative Act No. 1 of 22 July 2005, which amends article 48 of the Constitution on social security, the Committee:
3. (i) recognizes the right of States to regulate pension schemes but underlines the necessity to respect the principle of collective bargaining in so doing;
4. (ii) in relation to collective agreements concluded prior to the entry into force of the legislation, considering that previously negotiated agreements should continue to maintain all their effects, including those relating to pensions clauses, until their date of expiry, even if it is after 31 July 2010, the Committee requests the Government to adopt the relevant corrective measures and to keep it informed of developments in this respect;
5. (iii) with regard to agreements concluded after the entry into force of Legislative Act No. 1, taking into account the outcome of the referendum, the Committee requests the Government, in view of the particular circumstances of this case and in order to ensure harmonious industrial relations in the country, to hold new in-depth consultations on retirement and pensions with the interested parties, in order to find a negotiated solution acceptable to all the parties concerned in accordance with the Conventions on freedom of association and collective bargaining ratified by Colombia.
6. (b) In relation to the allegations concerning the refusal of the National Office of the Attorney-General to engage in collective bargaining with SINTRAPROAN, the Committee requests the Government to take the necessary measures to ensure observance of the right of collective bargaining of public servants, in accordance with the provisions of Conventions Nos 98 and 154 ratified by Colombia.
7. (c) With regard to the allegations concerning the persecution through successive disciplinary procedures of Mr Franco Cuartas, founder member and leader of SINTRAPROAN, the Committee requests the Government to take the necessary measures for an investigation to be carried out into the allegations and circumstances leading to Mr Franco Cuartas leaving his job, with the investigation being carried out by an independent person who enjoys the confidence of the parties and, if these allegations are found to be true, to take the necessary measures to reinstate Mr Franco Cuartas and to put an end to any disciplinary proceeding against him. The Committee requests the Government to keep it informed in this respect.
8. (d) In relation to the alleged dismissal of Luis Carmelo Cataño Cataño, Carlos Romero Aguilar, Francisco Molina and Silvio Elías Murillo, despite enjoying trade union immunity, and in the case of Mr Murillo, despite the Chocó Administrative Court ordering his reinstatement, the Committee notes that the Government has not provided its observations on this subject and requests it to do so without delay.
9. B. New allegations
10. 619. In its communication of 15 March 2007, the CGT alleges that Mr Jhon Jair Silva and Mr Jesse Moisés Gutiérrez Herrera, members of the National Union of Workers of the Office of the Attorney-General (SINTRAPROAN), have been dismissed.
11. C. The Government’s reply
12. 620. In its communications of 9 April and 4 July 2007, the Government sent the following observations.
13. 621. With regard to section (a) of the recommendation, the Government reiterates what it said previously in respect of Legislative Act No. 01 of 2005, amending article 48 of the Political Constitution, and in particular that this Act is a fundamental element of the package of measures adopted to address the serious problems arising in financing pensions liabilities.
14. 622. The Government considers that various aspects warrant consideration by the Committee on Freedom of Association in this case. In the first place, the regulation of conditions for the award of pensions is not strictly a matter of conditions of work, but rather it is a post-employment issue, that is to say, one relating to the sphere of pensions. Conventions Nos 98 and 154, which are alleged to have been violated, refer to negotiations of terms and conditions of employment. The scope of those instruments is not really to regulate pensions issues, as that issue is covered by other instruments also adopted by the Organization.
15. 623. Secondly, and with regard to the fact that the issue of pensions is regulated by other instruments, it should be considered that the aforementioned Conventions envisage the possibility of States regulating, that is to say legislating, on pensions-related matters, without in so doing violating the right of collective bargaining.
16. 624. Thirdly, collective bargaining relating to pensions, by its very nature, contains elements which are outside the scope of collective bargaining and which depend on the powers granted by constitutions to governments and their legislative bodies. These aspects, as they do not concern a particular population group, which negotiates a particular agreement, but rather concern the entire population of a given country, cannot be regulated by agreement, but through the power of the legislator to regulate general conditions governing the lives of the citizens. This is not a violation of the right of freedom of association but one of the most legitimate expressions of a welfare State governed by the rule of law. Naturally it is for governments and parliaments to determine which of those aspects are regulated by legislative means or through the decisions of the executive power. However, it is clearly and universally accepted that matters such as age, the number of contribution weeks, differences between the sexes when establishing certain requirements, are not fixed by collective bargaining between a certain group of citizens, in this case unionized workers, and the negotiating authority, but by the legislature, since, again, they relate to general matters concerning the living conditions of the population as a whole.
17. 625. The Government indicates that the chief objective is to ensure the financial sustainability of the social security system. In addition, it aims to ensure that the Colombian pensions system is fair to all Colombians, to which end, from 2008, pension requirements and benefits will be those established by the Pensions (General System) Act.
18. 626. Initially the protection of persons against the contingencies of old age and invalidity was structured as a consequence of the employment relationship. That was how it was envisaged in the Labour Code. The 1991 Constitution adopted a different model for social security, establishing in article 48 that “all citizens are guaranteed an inalienable right to social security” and to that end indicating that “social security is a public service of a compulsory character which shall be provided under the direction, coordination and control of the State, subject to the principles of efficiency, universality and solidarity, in such terms as may be established by law”. Accordingly, article 48 of the Constitution envisages the social security system as independent from the labour system. Indeed, the 1991 Constitution excludes the right to the provision of social security from the autonomy of private will and considers it a right of the person simply through their participation in society, with goes beyond the bounds of an employment relationship and is manifested in the provision of a public service of a compulsory nature that is to be directed and coordinated by the State, subject to the principles of efficiency, universality and solidarity.
19. 627. The Government indicates that the adoption of Act No. 100 of 1993 sought to give effect to the constitutional principles and to resolve the structural financial problems that were emerging in the pensions system and which were the result of decisions such as low contributions, or none at all, the dispersion of pension schemes and exaggerated benefits. The measures adopted in Act No. 100 of 1993 were not sufficient to eliminate the large imbalances which were already occurring in the system. In addition, Act No. 100 of 1993 did not cover all sectors, since it did not include members of the police, public servants affiliated to the National Teachers’ Social Benefit Fund and ECOPETROL workers. In addition, the Act did not affect legally concluded collective agreements or accords, nor did it prevent them from continuing to be concluded. The general pensions system in Colombia, including the transitional arrangements, and the excepted schemes were therefore experiencing financial difficulties which were reflected in high operating deficits. Indeed, the operating deficit, measured as the difference between pension contributions and benefits in the pensions system, led to the need to use resources from the ISS reserves and the general national budget equivalent to 3.3 per cent of GDP in 2000 (5.1 billion pesos) and 4.6 per cent of GDP in 2004 (8.2 billion pesos). Thus, following the adoption of Act No. 100 of 1993, an unsustainable situation has arisen involving a transfer of liabilities between generations, since current and future contributors through their taxes and contributions would have to finance not only the debt relating to current pensions, but also their own social expenditure and their future pensions.
20. 628. The pensions operating deficit aggravated the difficult economic situation through which the country was passing, which had a negative impact on employment, tax revenues and contributions. To finance the social cost of pensions, in accordance with constitutional obligations, over the past ten years, the nation has used resources which otherwise would have been allocated to other essential purposes and objectives of the State. As a consequence, the nation had to resort to rising internal and external debt to finance the growing social investment in health and education.
21. 629. To make the system sustainable and to some extent reduce the size of the envisaged deficits, the Honourable Congress of the Republic approved a pensions reform through Act No. 797, which envisaged changes to the requirements and benefits of the general pension system, and succeeded in reducing the national pensions deficit to 40 per cent of GDP in 2000 over a horizon of 50 years, moving towards the sustainability of future pension payments and the macroeconomic and fiscal stability of the country. This Act also reformed the transitional arrangements.
22. 630. The Constitutional Court declared the provisions of the Act to reform the transitional arrangements unconstitutional for procedural reasons. The considerable fiscal impact of the transitional arrangements led the Government to insist on reforming the transitional arrangements, since between 2003 and 2004 there would be an increase of 21 per cent in current pension payments borne by the nation, rising from 7.1 billion pesos in 2003 to 9.9 billion pesos in 2004, as a result of the growth in the number of pensioners and, above all, the larger budget inputs required in view of the imminent exhaustion of the financial reserves of the ISS that year. For these reasons, the national Government presented and Congress approved Act No. 860 of 2003, which aimed at changing the transitional arrangements.
23. 631. Acts Nos 797 and 860 sought to reconcile the public interest involved in maintaining the social security system and satisfying the irrefutable right to social security guaranteed in the Constitution with the expectations of those with transitional arrangements.
24. 632. Although the reforms adopted helped to improve the operating balance of the system, they did not succeed in balancing it completely. The country spends more on social security than on other sectors which, in one way or another, also represent constitutional priorities.
25. 633. It emerges from the structure of the national general budget for 2004, without taking into account the public debt servicing, that the category of social protection accounted for 31.7 per cent of the total, at 15.8 billion pesos, a significant proportion of which was for current pension payments, at a total of 9.1 billion pesos, the equivalent of more than 18.2 per cent of the total budget, a figure that includes 0.7 billion pesos that have been set aside for and are required for the ISS to meet its pension obligations that year (it does not include the projected additional approximately 0.9 billion pesos for that). Current pension payments correspond to a proportion of the budget that is greater than each of the other sectors included in the budget. It should be clear that, with these resources, only around half a million pensioners are being served (see table).
26. Number of pensioners by institution in 2004
27. Institution
28. Estimated number of pensioners
29. Average pension (minimum salaries)
30. CAJANAL
31. 196 935
32. 2.9
33. National Police Retirement Fund
34. 65 346
35. 2.7
36. Teaching Social Benefit Fund
37. 63 504
38. 2.7
39. Armed Forces Retirement Fund
40. 32 588
41. 4.7
42. Ministry of Defence
43. 27 926
44. 2.1
45. National Police
46. 20 457
47. 3.0
48. National Railways Social Fund
49. 16 577
50. 2.4
51. FONCOLPUERTOS
52. 15 908
53. 6.8
54. Agricultural, Industrial and Mining Credit Fund
55. 10 649
56. 3.6
57. SENA
58. 4 203
59. 3.2
60. National University of Colombia
61. 4 182
62. 5.9
63. Ministry of Agriculture
64. 3 404
65. 3.0
66. INCORA
67. 2 079
68. 2.7
69. Congress Social Provision Fund
70. 1 755
71. 20.7
72. Other institutions
73. 6 747
74. Total
75. 472 260
76. Source: Directorate-General of the National Public Budget.
77. ISS pensioners are not included because there are currently only 0.7 billion pesos set aside in the national budget to finance ISS insurance.
78. 634. Only in the case of the police, taking into account the characteristics of this group of public servants and the risks to which their members are subjected, is it justified to maintain a special scheme, as is the case in many countries around the world.
79. 635. With regard to the relationship between collective bargaining and pension matters, Act No. 100 of 1993 organized the general pension system and clearly required respect for acquired rights “in accordance with previous legislative provisions, accords or collective agreements”, but also made it clear that this should not prejudice the right of denunciation which the parties enjoy and that the arbitration tribunal would settle differences between the parties”. The foregoing shows the clear intention to align collective agreements and accords with the provisions of Act No. 100 of 1993 and that pensions cannot simply be considered a consequence of an employment relationship, but are a benefit derived from the social security system organized by the legislator.
80. 636. However, given that the Constitution guarantees the right to collective bargaining, it has not been possible to fulfil the intention of Act No. 100, as set out in section 11, since there remains the possibility of continuing to establish special rules in pension matters, for which reason, and despite the fact that the Supreme Court of Justice has repeatedly stated that pension benefits should be harmonized with Act No. 100 of 1993, not only have collective agreements not been harmonized with the Act, but agreements continue to be concluded in which entities undertake to assume new pensions obligations directly, giving preference to certain workers and breaching the equality that the Constitution wished to impose on the social security system. In fact, according to the Constitutional Court, the universality of the social security system presupposes a guarantee of protection for all persons without any discrimination, at all stages of their lives, and this guarantee without discrimination can only be provided in a unified system which cannot be varied at the will of one sector of its beneficiaries.
81. 637. Therefore, and in order to achieve the aims outlined in article 48 of the Constitution, the requirements for accessing the pension system and the benefits it guarantees must be clearly established. Furthermore, this is particularly important when taking into consideration not only the principles that should govern the social security system but also the economic consequences of the current situation, and the situation in the medium and long term.
82. 638. The Government indicates that considerable resources are being used to finance special pension schemes while they could be used to increase the coverage of the general social security system and increase social investment or to promote the development of the country. These reasons clearly justify the need to establish that collective bargaining should not include the pension system.
83. 639. The Government indicates that article 55 of the Constitution provides “that the right to collective bargaining to regulate industrial relations shall be guaranteed except as otherwise provided by the law”. From this point of view, it could be argued that a law may determine the scope of the right to collective bargaining and exclude pension schemes from its scope. However, examination of the case law of the Constitutional Court does not yield clear conclusions on this point. Indeed, while the Constitutional Court initially was rather in favour of the possibility of establishing limits to the right of collective bargaining for reasons of public interest, in recent years it has been more restrictive.
84. 640. Firstly, in ruling C-112-93, the Constitutional Court allowed the possibility of establishing limits to collective bargaining, provided that such limits were reasonable and such as to prevent state entities being endangered. In particular, the Court held that agreements could not result in “the destruction, bankruptcy, deterioration or lack of productivity of enterprises, and also that state entities cannot constitutionally grant absurd wages, benefits or privileges beyond the bounds of social reality”. Later, in ruling C-408 of 1994, the Constitutional Court reiterated that the Constitution allowed reasonable exceptions to collective bargaining.
85. 641. Nevertheless, the broad approach taken by the Constitutional Court in previous cases has been restricted in later rulings. In view of the above, the constitutional rules should be clarified so as to establish that collective agreements or accords cannot be concluded in relation to pensions.
86. 642. The Government adds that, in order to be able to assess the constitutional viability of the proposed Legislative Act, and its perfect compatibility with ILO Conventions, it is necessary to analyse whether those Conventions, which were approved by Colombia and form part of its constitutional provisions, prohibit or prevent the denial of collective bargaining on the statutory compulsory pension scheme. Convention No. 87 establishes special protection which allows citizens to establish trade unions and contains a series of general provisions requiring States to protect this right to organize. None of the provisions examined impede the inclusion in the Colombian Constitution by a legislative act of a limitation on collective bargaining concerning the compulsory pension scheme. Such an act would not violate or breach the right to organize, which could be pursued in the normal ways and with the protection of the State. It should be noted that the provisions of article 39 of the Constitution and the development of constitutional jurisprudence through constitutional reinstatement, as a means to protect the right to organize, through tutela (protection of constitutional rights), are appropriate methods for a harmonious development of freedom of association in Colombia.
87. 643. Nor does Convention No. 98 on the right to organize and collective bargaining, which was integrated into ordinary Colombian legislation by Acts Nos 26 and 27 of 1976, contain any provision that might preclude limiting the scope of collective bargaining in the Constitution of the Republic of Colombia in relation to the compulsory pensions scheme established by law. Article 4, which is the Article that specifically refers to collective bargaining, states that measures appropriate to national conditions shall be taken, when necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations, on the one hand, and workers’ organizations, on the other, with a view to the regulation of terms and conditions of employment by means of collective agreements. This provision undoubtedly leaves States that have adopted the Convention free to limit the scope of collective bargaining when compulsory schemes such as pensions are affected, and they enable exceptions to be made that significantly affect the national budget and the equality of workers, in an area as important as retirement. In the same way, Convention No. 154 on collective bargaining indicates in Article 5, section 1 that: “Measures adapted to national conditions shall be taken to promote collective bargaining”.
88. 644. In conclusion, it should be noted that none of the Conventions which protect the right to organize and collective bargaining could be an obstacle to establishing in the Constitution, through a legislative act, a restriction on collective bargaining aimed at modifying the general pensions schemes.
89. 645. The Government recalls that in 2003 it held a referendum that contained questions on various issues, such as political organization, fiscal control, budget design, etc. Only question 8 referred to pension matters, which is why it should be made clear that the result of the aforementioned referendum cannot be interpreted as a rejection of the modification of the pensions schemes.
90. 646. The Government notes with regard to section (a)(ii) that, in relation to the agreements containing pensions clauses concluded before Legislative Act No. 01 of 2005 came into force, the Act provides:
91. ...
92. With regard to pensions all acquired rights will be respected.
93. Paragraph Three. The rules governing pensions on the date of entry into force of this legislative act contained in valid accords, collective agreements, awards or agreements shall remain in force for the term originally agreed. Accords, agreements or awards signed between the entry into force of this legislative act and 31 July 2010, cannot contain more favourable pension conditions than those currently in force. In all cases they will lapse on 31 July 2010.
94. 647. Therefore it can be inferred that pension clauses agreed upon before Legislative Act No. 01 of 2005 will be respected. The Government notes that the adoption of relevant measures, suggested by the Committee on Freedom of Association, is not possible, as that is within the competence of the legislature and not of the executive, which is that of the Government (article 113 of the Constitution).
95. 648. With regard to section (a)(iii) of the recommendations relating to holding consultations, the Government notes that the issue of pensions had been included in the referendum with a view to solving the serious deficit in the pensions system, as said before. Question No. 8 of the referendum was as follows:
96. 8. Limitation of pensions and salaries relying on public resources.
97. Question: As a measure to reduce social inequalities and control public spending, do you agree with the following article?
98. Add article 187 to the Constitution to read as follows:
99. Upon the entry into force of this constitutional reform, persons becoming eligible to retire will not receive from public resources a pension above twenty-five (25) current legal monthly minimum salaries. Exceptions are those who have acquired rights and those who are protected by exempted and special pension schemes.
100. The validity of pension schemes that are exempted, special or resulting from standards or agreements between nationals, whatever their nature, will lapse on 31 December 2007, with the exception of the pension scheme for Presidents of the Republic that will be effective from the date of entry into force of this constitutional reform.
101. Transitional arrangements will be regulated by the Pensions (General System) Act.
102. Pension requirements and benefits for everyone, upon entry into force of this constitutional reform, with the above time exceptions, will be those established in the Pensions (General System) Act. No disposition can be given or agreement invoked, of any kind, between nationals, that would deviate from that established therein.
103. With the exceptions laid out in the Pensions (General System) Act, from the entry into force of this constitutional reform, old-age or retirement pensions cannot be granted to persons under the age of 55 years.
104. The Pensions (General System) Act will order the revision of pensions that do not comply with the legal requirements or that abuse the law.
105. From 1 January 2005 until December 2006, the salaries and pensions of public servants, and persons whose salaries and pensions are paid with public resources, will not be increased, in both cases when they yield more than twenty-five (25) current legal monthly minimum salaries.
106. The legal system for members of the police is excluded from this provision.
107. Yes [ ]
108. No [ ]
109. Blank paper [ ]
110. 649. According to information from the National Civil Registry Office, the results of the popular vote on that question were as follows:
111. Yes
112. votes
113. No
114. votes
115. Void
116. votes
117. Total votes
118. (yes + no + void)
119. Percentage
120. of participants
121. Yes
122. Percentage
123. of participants
124. Unanswered questions
125. 5 602 823
126. 493 563
127. 124 926
128. 6 221 312
129. 90.06
130. 24.82
131. 451 738
132. 650. As can be seen, for question No. 8, 90.06 per cent voted in favour. However, the question was not incorporated in the Constitution because a participation of 25 per cent of the voting population was necessary and participation was 24.82 per cent. Approving a referendum requires not only an affirmative majority (for yes) for the questions submitted for consideration but also a minimum total participation of at least 25 per cent of the voting population. In conclusion, question No. 8 was not incorporated because of lack of participation by the voting population rather than because it was not approved. More than 5.5 million voters is a significant number, therefore we consider that carrying out another consultation, as proposed by the Committee on Freedom of Association, is not necessary, and that pertinent explanations have been given with regard to the economic impact of not applying Legislative Act No. 01 of 2005. (The Government includes a copy of the results published by the Registry Office.)
133. 651. With regard to section (b) of the recommendations, the Government notes that the State of Colombia respects the right to collective bargaining of trade unions of public employees. As has been explained on various occasions, they cannot submit claims to resolve labour disputes which arise in their employment relations with the respective public institutions that employ them, based on the exhaustion of the procedures set out in the Labour Code – direct negotiation, collective agreement and, where appropriate, strikes and arbitration – but such unions can submit claims intended to improve their conditions of work, as long as they respect the constitutional competence of the authorities to determine unilaterally the emoluments of public servants. As stated in the Government’s various replies, the Attorney-General has dealt with claims from the trade union appropriately (the Government includes a copy of the reply sent by the Office of the Attorney-General).
134. 652. With regard to section (c) of the recommendations, the Government indicates firstly that the Office of the Attorney-General reported that Mr Franco Cuartas never presented his resignation during his contract.
135. 653. The Government requests the Committee to clarify which body or person could have jurisdiction to carry out an independent investigation, according to the criteria of the Committee on Freedom of Association. The Office of the Attorney-General, in accordance with the provisions of article 3 of Act No. 734 of 2002, is the permanent body responsible for diligently exercising disciplinary authority and as such can begin, continue or remit any investigation or judgement of competence of the internal disciplinary systems of public bodies.
136. 654. With regard to putting an end to any disciplinary proceedings against Mr Franco Cuartas, as the Attorney-General states: “this aspect is impossible to implement, bearing in mind that both the Constitution, in article 6, and Act No. 734 of 2002, oblige me to comply with their rules, that is to say to begin a disciplinary investigation when the potential perpetrator or perpetrators of the offence have been identified, without exception, either in the complaint or through preliminary enquiries”.
137. 655. As for section (d) of the recommendations, the Government indicates, with regard to the dismissal of Mr Luis Carmelo Cataño Cataño, that the Fourth Labour Court of the Bogotá, DC Circuit found in favour of Mr Cataño Cataño, and that this decision was appealed by the Office of the Attorney-General. The Supreme Court of Bogotá, Labour Tribunal, when deciding on the appeal, decided to overturn the ruling rejecting the claim and thereby absolved the Office of the Attorney-General.
138. 656. With regard to the dismissal of Mr Carlos Romero Aguilar, in accordance with ruling No. 101151 of 7 May 2007, the Chief of the Human Resources Division made the Legal Office aware that, according to information sent from the Ministry of Social Protection to the Office of the Attorney-General, Mr Romero Aguilar did not figure on the list of trade union committees or subcommittees and, as such, Mr Romero Aguilar did not have trade union immunity.
139. 657. With regard to Mr Francisco Molina Alvarado, the aforementioned official communication showed that he was registered on the Bogotá sector subcommittee by the Ministry of Social Protection; however the General Secretariat of the Office of the Attorney-General had informed them that Mr Jovanny Quiñónez Díaz had been appointed to the post that Mr Molina Alvarado had provisionally occupied, having earned it through a selection process. In accordance with article 188 of Decree-Law No. 262 of 2000, provisional appointment can be made for a term of up to six (6) months which can be extended for another six (6) during the selection process. In this case, Mr Molina Alvarado was not dismissed, but rather his post was taken on by the person who earned the job through a selection process.
140. 658. With regard to Mr Silvio Elías Murillo, the Government indicates that Mr Murillo’s claims for reinstatement were denied by the Second Labour Court in first instance and in second instance by the Supreme Court, Labour Tribunal.

D. The Committee’s conclusions

1. 659. The Committee notes the new allegations presented by the CGT and the Government’s observations on the Committee’s recommendations made at its previous examination of the case.
2. 660. With regard to section (a) of the recommendations relating to the limitation of the right to collective bargaining by virtue of the recent adoption of Legislative Act No. 01 of 22 July 2005, the Committee notes that the Government refers to the economic conditions that led to the adoption of the legislation that aims to establish an economically and financially viable universal and supportive system. The Committee notes that the Government insists that the power to regulate the pensions policy is granted to the Government by the Constitution, that pension issues do not fall within the scope of Conventions Nos 87 and 98 and that it is not contrary to these Conventions to prevent or limit those issues from being negotiated collectively.
3. 661. In that regard, the Committee recalls, firstly, as at its previous examination of the case, that it recognizes the right of States to regulate pension schemes but underlines the necessity to respect the principle of collective bargaining in so doing [see 344th Report, para. 801 (a)(i)]. As the Committee observed at its previous examination of the case, the adoption of a legal system for pensions does not generally fall within the jurisdiction of the Committee. However, it can examine to what extent the principles of freedom of association have been respected in adopting that system. Therefore, the Committee observes that until Legislative Act No. 01 was issued, it was legal to establish pensions clauses in collective agreements, in particular clauses that improved on the legal provisions, and so this was done on numerous occasions between private and public enterprises and public bodies with various trade union organizations. On those occasions, the parties regulated the mode and amount of pensions applied to workers in the enterprise or the sector through collective bargaining.
4. 662. The issuance of Legislative Act No. 01 changed the governing legal situation by establishing that “with effect from the entry into force of this Legislative Act, pension arrangements other than those set out in the Pensions (General System) Act cannot be established by accords, collective agreements, awards or legal acts of any kind”. Furthermore it establishes that “Without affecting the acquired rights, the system applied for members of the police and the President of the Republic, and what is established in the paragraphs of this article, the validity of special or exempted pension schemes, as well as any other scheme different to that permanently established in the Pensions (General System) Acts, will lapse on 31 July 2010.”
5. 663. Indeed, the Committee observes that, following the introduction of Legislative Act No. 01, no pension conditions can be negotiated that are different to those in the general pensions system. With regard to the agreements made before the Legislative Act, while the Act contains a provision to respect acquired rights, it also provides that, in all cases, pre-existing systems that are different to the general pensions system will lapse as of 2010. In some cases this may mean a unilateral modification of the contents of signed collective agreements. In that regard, the Committee has considered on previous occasions that it goes against the principles of collective bargaining and the principle of acquired rights of the parties. Therefore, the Committee once again requests the Government to adopt the necessary measures to ensure that collective agreements containing pensions clauses, which are valid beyond 31 July 2010, remain in effect until their expiry date.
6. 664. With regard to agreements concluded after the entry into force of Legislative Act No. 01, specifically in relation to the general prohibition of establishing a pension scheme different to that established in the general pensions system, the Committee recalls that, on its previous examination of the case, it had noted that, according to the allegations, the Legislative Act had been adopted despite the opposition of the social partners, expressed in a referendum, about which neither the Government nor the complainants had provided greater detail. In this regard, the Committee had requested the Government to hold new consultations with the interested parties in order to find a negotiated solution acceptable to all the parties concerned. The Committee notes the information provided by the Government about the referendum, that the legislative authority had decided upon the referendum in order to make some amendments to the Constitution; the referendum was about various issues; question No. 8 was about pensions; during the vote, 90.06 per cent of voters accepted the new scheme; however the provision could not be included in the Constitution because the Constitution stipulated that participation greater than 25 per cent was needed in the referendum, which was not achieved. The Committee notes that the Government emphasizes that in any case more than 5.5 million people participated in the referendum and indicates that independently of the result, the State has jurisdiction to regulate pension issues by legislative means.
7. 665. In this regard, the Committee has considered on previous occasions that the process of tripartite consultation on legislation helps to give laws, programmes and measures adopted or applied by public authorities a firmer justification and helps to ensure that they are well respected and successfully applied. The Government should seek general consensus as much as possible, given that employers’ and workers’ organizations should be able to share in the responsibility of securing the well-being and prosperity of the community as a whole. This is particularly important given the growing complexity of the problems faced by societies. No public authority can claim to have all the answers, nor assume that its proposals will naturally achieve all of their objectives [see Digest of Decisions and Principles of the Freedom of Association Committee, fifth edition, 2006, para. 1076]. Therefore, the Committee again requests the Government, in view of the particular circumstances of this case and in order to ensure harmonious industrial relations in the country, to hold new in-depth consultations on retirement and pensions with the interested parties, in order to find a solution acceptable to all the parties concerned, in accordance with the Conventions on freedom of association and collective bargaining ratified by Colombia, in particular ensuring that the parties involved in collective bargaining can improve the legal provisions on retirement and pension schemes by mutual agreement.
8. 666. With regard to section (b) of the recommendations relating to the refusal of the Office of the Attorney-General to engage in collective bargaining with SINTRAPROAN, the Committee notes that the Government reiterates what it said at the previous examination of the case, that article 416 of the Labour Code establishes that trade unions of public employees cannot submit claims but only respectful petitions. In that regard, the Committee again reiterates that, although certain categories of public servants should already enjoy the right to collective bargaining, in accordance with Convention No. 98, the promotion of that right was generally recognized for all public servants with the ratification of Convention No. 154 on 8 December 2000 and, in consequence, workers in the public sector and the central public administration should enjoy the right to collective bargaining. In these circumstances, recalling that special modalities of application may be fixed for collective bargaining in the public service, but at the same time maintaining that the mere possibility of submitting respectful petitions is not sufficient to consider that there is a true right to free and voluntary collective bargaining, the Committee again requests the Government to take the necessary measures to amend article 416 of the Labour Code so as to ensure observance of the right of public servants to bargain collectively in accordance with the provisions of Conventions Nos 98 and 154, ratified by Colombia.
9. 667. With regard to section (c) of the recommendations relating to the alleged persecution through successive disciplinary procedures of Mr Franco Cuartas, founder member and leader of SINTRAPROAN, the Committee recalls that it had requested the Government to carry out an independent investigation that would have the confidence of the parties and, if the allegations were found to be true, to take the necessary measures to reinstate him and put an end to any disciplinary proceeding against him. In this regard, the Committee notes that the Government indicates that the Office of the Attorney-General reports that Mr Franco Cuartas has not resigned from his post. In addition, it indicates that the Office of the Attorney-General is the authority responsible for disciplinary authority and therefore can begin, continue or remit any investigation or judgement of competence of the internal disciplinary systems of public bodies.
10. 668. In that regard, the Committee notes that the Office of the Attorney-General is responsible for disciplinary authority and investigation but observes that the recommendations of the Committee have not been followed up with regard to the investigating body in order to ensure complete impartiality. The Committee believes that the independent authority should be the judicial authority or an independent person who enjoys the confidence of the parties. Therefore, the Committee requests the Government to take the necessary measures to carry out without delay an independent investigation into these allegations and, if they are found to be true, to take the necessary measures to cancel the disciplinary measures taken against Mr Franco Cuartas.
11. 669. With regard to section (d) of the recommendations relating to the alleged dismissal of Luis Carmelo Cataño Cataño, Carlos Romero Aguilar, Francisco Molina and Silvio Elías Murillo, despite enjoying trade union immunity, and in the case of Mr Murillo, despite the Chocó Administrative Court ordering his reinstatement, the Committee notes the information from the Government that: in the case of Mr Cataño Cataño, the Supreme Court of Bogotá refused his reinstatement by overturning the ruling of the Fourth Labour Court of the Bogotá Circuit; with regard to Mr Carlos Romero Aguilar, he did not have trade union immunity; with regard to Mr Francisco Molina, he was not dismissed but, as he had been appointed provisionally, his post was subject to a selection process and was obtained by another person; and with regard to Mr Murillo, the Government clarifies that the claim for reinstatement was denied in courts of first and second instance. The Committee observes that the Government has not provided additional information relating to the reason for the dismissals, and does not refer to having respected the trade union immunity of the officials, nor does it include copies of the legal rulings showing that there was no anti-union discrimination in the dismissal of the union officials. The Committee recalls the principle that a worker or trade union official should not suffer prejudice because of their trade union activities. In order to be able to formulate conclusions based on all the information, the Committee requests the Government to send a copy of the judicial decisions denying the reinstatement of the dismissed union officials.
12. 670. With regard to the new allegations presented by the CGT relating to the dismissal of SINTRAPROAN members Jhon Jair Silva and Jesse Moisés Gutiérrez Herrera, the Committee requests the Government to send its observations without delay on the matter.