Rapport intérimaire - Rapport No. 346, Juin 2007

442. This complaint is contained in a communication dated 23 May 2006 presented by the Single Confederation of Workers of Colombia (CUT).

1. 443. The Government sent its observations in a communication dated 5 October 2006.
2. 444. 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. The complainant’s allegations

1. 445. The CUT alleges that the vice-chancellor of the University of Córdoba is putting pressure on the National Trade Union of University Workers of Colombia (SINTRAUNICOL) to persuade it to renegotiate the collective agreement in force, by denouncing the collective agreement before the Ministry of Social Protection. These acts of pressure started in December 2000 and, faced with the trade union’s refusal to renegotiate, a persecution campaign was set in motion against it, involving not only the university management but also members of the paramilitary organization, the United Self-Defence Forces of Colombia (AUC). On 17 February 2003, a meeting was held during the conflict to analyse and debate the election of the new vice-chancellor. On 18 February, the members of the trade union were summoned to the camps of the paramilitary organization where they were subjected to pressure and threats to persuade them to renegotiate the collective agreement. Despite the trade union’s continuing refusal, the university began to disregard the provisions of the collective agreement. On 26 September 2003, the Ministry of Social Protection informed the trade union, pursuant to decision No. 002534, that an alleged work stoppage carried out by the workers and teaching staff on 17 and 18 February was illegal. The trade union was not informed of the proceedings. By virtue of this decision, the trade union leaders were summoned by the university authorities to attend disciplinary proceedings that could culminate in the dismissal of the executive board.
2. 446. On 14 November 2003, the national executive committee of SINTRAUNICOL received a communication from AUC, stating that 15 of the trade union’s leaders, including the president of the sectional committee at the University of Córdoba, were considered to be military targets. According to the report issued by SINTRAUNICOL, a copy of which was included by the CUT, as a result of the many complaints made by the trade union to the public authorities regarding these events, on 6 February 2004 the Public Ombudsman’s Office published a risk assessment describing the situation of the SINTRAUNICOL trade union leaders and other trade unions at the University of Córdoba as “high risk”.
3. 447. Finally, according to the allegations, in December 2005 the vice-chancellor and the Superior Council of the university approved agreements Nos 095 and 096, altering the status of the workers from public officials to public employees. This resulted in the collective agreement being invalidated.
4. B. The Government’s reply
5. 448. In its communication, dated 5 October 2006, the Government states, with regard to the pressure exerted by the administration to renegotiate the collective labour agreement, that in accordance with case law and article 479 of the Substantive Labour Code, if it is the employer alone who denounces the agreement, it remains in force, and may be extended as provided for in the law, because employers cannot present lists of demands and are therefore not able to initiate a collective dispute that results in another collective agreement or in an award being made by a mandatory arbitration tribunal. It is therefore not possible for employers to initiate a collective dispute, but they may present their point of view in denouncing the agreement when the dispute is started by the workers. According to the information supplied by the vice-chancellor, this is what happened at the University of Córdoba.
6. 449. With regard to the allegations that the former vice-chancellor of the University of Córdoba made the trade union leaders discuss the university’s policies and the question of the collective agreement with the paramilitary commanders, the Government indicates that the vice-chancellor was unaware of these events.
7. 450. With regard to the alleged persecution of the trade union, in February 2003 the new vice-chancellor of the university sent a letter to the Government stating that, on 17 and 18 February 2003, the trade unions locked the doors of the university and he therefore requested that the Ministry of Social Protection take note of this and declare the strike illegal. The work stoppage was declared illegal in decision No. 0002534 of September 2003. The Government attaches a copy of the decision confirming that the Territorial Directorate of Córdoba verified the work stoppage; that article 56 of the Constitution guarantees the right to strike; that article 450 of the Substantive Labour Code stipulates that the collective suspension of work is illegal in the public services; that education is considered by the Constitutional Court to be an essential public service and that the constitutional and legal prohibition on suspending activities in essential public services is sufficient justification to declare the work stoppage illegal.
8. 451. In accordance with the Ministry’s decision, the university initiated the relevant disciplinary proceedings in order to determine who participated actively in the work stoppage. The cases were sent to the Office of the Procurator General of the Nation, which had the necessary information. According to the Government, the proceedings are still under way.
9. 452. With respect to altering the workers’ legal status and consequently invalidating the collective labour agreement, the Government states that the vice-chancellor of the university reported that the Colombian Institute for the Promotion of Higher Education (ICFES) and the Ministry of National Education/Organization of Ibero-American States for Education, Science and Culture (OEI) concluded contract No. 035/01 with the company “Asesoría y Gestión Cía. Ltda” (Consultancy and Management Co. Ltd), for the purpose of conducting studies to identify and define the characteristics of the financial, academic and administrative management of the Universities of Córdoba and Cartagena and the Industrial University of Santander in order to draw up an action plan.
10. 453. The Government states that, on the basis of the aforementioned report, the administration of the University of Córdoba issued agreements Nos 095 and 096, amending the general statutes by suppressing the posts of “public officials” and altering the workers’ status from “public officials” to “public employees”.
11. 454. On this matter, the Government states that the Supreme Court of Justice decision of 9 April 2003 ruled that public official status originates in law and takes only the forms provided for by the law. It is not feasible to elude or evade this classification system by affording agreed benefits to the worker. The judicial decision on the legal nature of the labour contract binding all workers must originate exclusively in law and, if they are working for a territorial body, an effort must be made to determine whether this is devoted to the upkeep and maintenance of public works, as that is the only circumstance in which it is possible to be employed as a public official.
12. 455. The Government adds that, according to the vice-chancellor of the University of Córdoba, the employees subjected to a change of status were invited to meetings on several occasions to inform them of the situation regarding their employment relationship, taking into account that they were not performing the functions of public officials. A few workers and trade union leaders participated in these meetings and in the discussions held by the Superior Council on the projected change of status, which later became agreement No. 096 (2005), as confirmed by the Superior Council’s records Nos 025 (16 November 2005), 026 (25 November 2005), 027 (12 December 2005) and 028 (14 December 2005). The Government has attached copies of these documents.
13. 456. The Government stresses that the university has not been denied the right to freedom of association at any time, hence the change of status did not ignore the trade union. Likewise, the vice-chancellor stated that the university employees continued to perform the same functions as before the change in legal status and their monthly pay remained the same or higher. In fact, they occupy these posts provisionally, due to the fact that, according to Constitutional Court ruling No. C-030/97, the rules allow the appointment and continued employment of certain people who, because of their circumstances (filling in permanent posts), are not required to undergo a selection process to assess their merits and capacities. Hence the constitutional mandate, which requires public examinations to be held to fill permanent posts, and also the general principles implicit in the selection system, such as equality and efficiency in public administration, are disregarded. The exception laid down by the rules in question distorts the system itself, since the discretion of the recruiters overrides the system, hindering those who believe they fulfil the requirements to do the job on a national or territorial level from applying for it, simply because there is no mechanism for assessing their merits and capacities. The Court was absolutely clear: there can be no rule within our regulations that allows automatic appointment to permanent posts.
14. 457. The Government includes a copy of an agreement concluded between the University of Córdoba and SINTRAUNICOL on 17 April 2006 relating to the working conditions and benefits of workers.
15. 458. Finally, the Government reports that the Ministry of Social Protection, Territorial Directorate of Córdoba, has begun two investigations: one into the failure to pay wages and benefits, with a conciliation hearing being held between the trade union and the university to clarify the complaint registered by the trade union, and the second into the protection of the right to freedom of association, which is under way.

C. The Committee’s conclusions

1. 459. The Committee observes that according to the allegations presented by the CUT: (1) SINTRAUNICOL were put under pressure and threatened by the vice-chancellor of the University of Córdoba and paramilitary commanders of AUC to persuade them to renegotiate the collective agreement; (2) on 17 February 2003 a meeting was held at the university following the appointment of the new vice-chancellor, which was deemed by the authorities to be an illegal work stoppage resulting in disciplinary proceedings against the SINTRAUNICOL trade union leaders; and (3) in December 2005, despite the opposition of the trade union, agreements Nos 095 and 096 were approved, altering the status of university workers from public officials to public employees, which invalidated the collective agreement.
2. 460. With regard to the alleged pressure and threats suffered by SINTRAUNICOL at the hands of the vice-chancellor of the University of Córdoba and, subsequently, the paramilitary commanders of the AUC to persuade them to renegotiate the collective agreement, the Committee notes that faced with the trade union’s persistent refusal to cede to the pressure, many of its officials, including the president of the trade union committee at the University of Córdoba, were declared military targets by the AUC and the trade union’s situation was classified as “high risk”. The Committee notes that, according to the Government, under article 479 of the Substantive Labour Code, if it is the employer alone who denounces the collective agreement and the workers do not accept the denunciation, they cannot be forced to renegotiate it. With regard to the pressure and threats on the part of the vice-chancellor and the AUC, the Committee notes that, according to the communication sent to the Government by the vice-chancellor of the university, he was unaware of these events.
3. 461. The Committee expresses its most serious concern at these allegations. The Committee recalls as it has on numerous occasions when faced with various complaints against the Government of Colombia, that “freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 43]. Furthermore, the Committee underlines that the voluntary nature of collective bargaining and the autonomy of the bargaining partners in the absence of any recourse to measures of compulsion are fundamental to the principles of freedom of association. In view of the seriousness of these allegations, the Committee strongly urges the Government to take measures immediately to guarantee the safety of the threatened trade union officials. The Committee also strongly urges the Government to take immediately the necessary measures to have a truly independent investigation carried out without delay by a person who enjoys the confidence of both parties and, if these allegations are found to be true, to take the necessary measures to punish those responsible. The Committee condemns the existence and actions of paramilitary organizations, which, in violation of human rights and of freedom of association principles, regard trade unionists as targets. The Committee recalls that the responsibility to stop such organizations rests with the Government. The Committee requests the Government to keep it informed on this matter.
4. 462. With regard to the meeting held by SINTRAUNICOL on 17 February 2003 following the appointment of the new vice-chancellor, which was deemed by the administrative authorities to be an illegal work stoppage giving rise to disciplinary proceedings pending against the trade union officials, the Committee notes that the illegality ruling was based on article 450 of the Substantive Labour Code, under which exercise of the right to strike is prohibited in essential public services.
5. 463. In this respect, the Committee observes, first, that the trade union denies that there was a work stoppage, stating that a meeting was held. Secondly, the Committee recalls that, in any event, strikes or work stoppages can be prohibited only in cases where essential services, in the strict sense of the term, will be affected, i.e., those whose interruption would endanger the life, personal safety or health of the whole or part of the population. In this respect, the Committee has stated, on many occasions that the education sector does not constitute an essential service in the strict sense of the term [see Digest, op. cit., para. 587].
6. 464. The Committee observes, however, that the Ministry of Social Protection’s declaration that the meeting was illegal was made pursuant to article 451 of the Substantive Labour Code, which stipulates that the Ministry is the competent body to decide upon the legality of any collective work stoppage or strike. In this respect, the Committee recalls that it has stated on many occasions that “responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved” [see Digest, op. cit., para. 628]. In these circumstances, the Committee requests the Government to take the necessary measures to amend article 451 of the Substantive Labour Code in line with the aforementioned principle. Furthermore, taking into account that decision No. 0002534 of September 2003, which declared the work stoppage illegal (while the trade union denies it took place), was based on legislation that is not in accordance with the principles of freedom of association, it requests the Government to annul the Minister’s declaration and the disciplinary proceedings initiated pursuant to it. The Committee requests the Government to keep it informed on the matter.
7. 465. With regard to the allegations stating that agreements Nos 095 and 096, issued in December 2005 despite the opposition of the trade union, alter the status of the university workers by changing them from public officials to provisional public employees and consequently invalidating the collective agreement, the Committee notes that, according to the Government, the aforementioned agreements resulted from the report prepared by the company “Asesoría y Gestión Cía. Ltda”. The report contains a study into the characteristics of the financial, academic and administrative management of several universities, including the University of Córdoba, for the purpose of formulating an action plan. The Committee notes that prior consultations on the agreements were held between the university authorities and SINTRAUNICOL and the trade union opposed the amendments proposed.
8. 466. The Committee reminds the Government that by virtue of Convention No. 98 and Convention No. 154, ratified by Colombia, public authority employees, whether they are public officials or public employees, must be able to bargain collectively. The Committee notes, however, that among the documents sent by the Government there is an agreement concluded between representatives of the University of Córdoba and SINTRAUNICOL on 29 March 2006, and valid until 31 December 2007, on working conditions, pay, benefits and incentives, subsequent to the approval of agreements Nos. 095 and 096. The Committee observes that the agreement was signed before the CUT presented this complaint to the Committee. The Committee therefore requests the complainant organization to report on the circumstances in which this agreement was signed, if it was the result of free and voluntary negotiations and if it replaces the collective agreement that was in force when agreements Nos 095 and 096 were approved.