Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 349, Mars 2008

1. 672. The Committee last examined this case at its May–June 2007 meeting and submitted an interim report to the Governing Body [see 346th Report, paras 442–467, approved by the Governing Body at its 299th Session].
2. 673. The Government sent new observations in a communication dated 4 September 2007.
3. 674. 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. 675. In its previous examination of the case in May–June 2007, the Committee made the following recommendations [see 346th Report, para. 467]:
   • (a) With regard to the alleged pressure and threats suffered by SINTRAUNICOL at the hands of the Vice-Chancellor of the University of Córdoba and the paramilitary commanders of the AUC to persuade them to renegotiate the collective agreement, the Committee strongly urges the Government to take measures immediately to guarantee the safety of the threatened trade union officials without delay. The Committee further 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.
   • (b) 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 and gave rise to disciplinary proceedings which are still pending against the trade union officials, the Committee requests the Government:
   • (i) to take the necessary measures to amend article 451 of the Substantive Labour Code so that illegality rulings are made by an independent authority which enjoys the confidence of both parties; and
   • (ii) taking into account the fact that decision No. 0002534 of September 2003, issued by the Ministry of Social Protection, 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, 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.
   • (c) With regard to the allegations stating that agreements Nos 095 and 096, approved in December 2005 despite the opposition of the trade union, led to the invalidation of the collective agreement, the Committee, noting the previous agreement on working conditions, pay, benefits and incentives signed on 29 March 2006 by representatives of the University of Córdoba and SINTRAUNICOL, 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.

B. The Government’s reply

1. 676. In its communication dated 4 September 2007, the Government sent the following observations.
2. 677. With regard to paragraph (a) of the recommendations, the Government states, with regard to the issue of safety, that this issue is being dealt with under Case No. 1787, and that it is important that the trade union provides the names of those under threat so that the appropriate measures can be taken. The Government includes a copy of a letter sent by the office of the Vice-Chancellor of the University of Córdoba stating that, since the current Vice-Chancellor of the University took office, there have been no killings, abductions, exiles or displacements and that, in the isolated cases of reported threats, the authorities were informed immediately, and responded by providing the necessary protection, ensuring life, freedom of expression and labour rights. The Vice-Chancellor in turn includes a copy of a communication dated 24 April 2004, stating, at the Vice-Chancellor’s request, that “an examination of the archives and card index system kept in this Unit from 2002 to the present time has revealed that no information has been recorded about threats made by terrorists outside the law (FARC, ELN, ERP, AUC) against teaching staff, students or administrative staff at the University of Córdoba”.
3. 678. With regard to paragraph (b)(i) of the recommendations, the Government indicates that the Ministry of Social Protection takes decisions in accordance with the national legislation and in the spirit of transparency and impartiality.
4. 679. With regard to paragraph (b)(ii) concerning decision No. 0002534 of September 2003, the Government states that the administrative disputes authority checks the legality of the decisions taken by the Ministry of Social Protection. In the communication mentioned above, the Vice-Chancellor of the University refers to the disciplinary proceedings conducted by the National Office of the Attorney-General and states that the latter upheld the lower court ruling which had acquitted the members of SINTRAUNICOL for the actions carried out on 17 and 18 February 2003. Copies of the acquittal decisions of the National Office of the Attorney-General of 29 November 2005 and 9 December 2005 are also enclosed.
5. 680. With regard to paragraph (c) of the recommendations, the Vice-Chancellor of the University states in his letter, sent by the Government, that following the signing of the agreement with SINTRAUNICOL, the Vice-Chancellor was reported to the Office of the Comptroller General of the Republic by the Association of University Teachers (ASPU), another trade union, which considered that the University administration had awarded exorbitant benefits to public employees.

C. The Committee’s conclusions

1. 681. The Committee notes the Government’s observations.
2. 682. With regard to paragraph (a) of the recommendations concerning the alleged pressure and threats suffered by SINTRAUNICOL at the hands of the Vice-Chancellor of the University of Córdoba and the paramilitary commanders of the AUC to persuade them to renegotiate the collective agreement, the Committee observes that the Government refers to the issue of safety and states merely that this issue is being examined under Case No. 1787 pending before the Committee, and that it is important that the trade union provides the names of those under threat so that the appropriate measures can be taken. The Committee notes the letter from the Vice-Chancellor of the University sent by the Government in which he states that since he took up office there have been no killings and only isolated cases of threats.
3. 683. The Committee observes, however, that it emerges from the rulings of the National Office of the Attorney-General, also sent by the Government, that, as contained in the allegations, the members of the executive board of SINTRAUNICOL were obliged to hold a meeting in Santafé de Ralito with members of the AUC and that, on 6 February 2004, the Public Ombudsman’s Office had already published a risk assessment report concerning the SINTRAUNICOL trade union leaders. In that report, quoted in the ruling of the National Office of the Attorney-General, the Public Ombudsman’s Office states that “the University of Córdoba, the Department’s main university, has been affected by the political and military operations of this counterinsurgent group. The teachers, workers and retired staff who … have reported the influence of these self-defence groups in the different processes which define and guide the life of this educational centre today have been regarded by the AUC as allies of the insurgence and as an obstacle to their aim of consolidating their supreme control”. In this regard, the Committee must emphasize once again the extremely serious nature of these allegations and is bound to condemn once again the existence and actions of paramilitary organizations, which, in violation of human rights and of freedom of association principles, regard trade unionists as targets.
4. 684. In this regard, the Committee is bound to deeply regret that, despite the particular risk faced by SINTRAUNICOL trade union leaders and members under these circumstances, the Government has not yet taken measures to provide protection to the leaders of SINTRAUNICOL and an investigation into the events reported, as requested by the Committee, has not been carried out. In these circumstances, the Committee once again urges the Government to take measures to guarantee the safety of the threatened trade union leaders and requests it to consult the trade union without delay to determine who should be afforded such protection. Furthermore, the Committee once again urges the Government to have a truly independent investigation into these allegations carried out without delay by a person who enjoys the confidence of the parties involved, and, if these allegations are found to be true, to take the necessary measures to punish those responsible. The Committee requests the Government to keep it informed on this matter.
5. 685. With regard to paragraph (b) of the recommendations concerning the meeting held by SINTRAUNICOL on 17 February 2003, the Committee recalls that the meeting was deemed by the administrative authorities to be an illegal work stoppage under decision No. 0002534 on the grounds that the right to strike is prohibited in the case of essential public services. In this regard, the Committee notes the information provided by the Government that the decisions were taken in accordance with the national legislation and that the disciplinary proceedings initiated under the decision mentioned led to a decision by the National Office of the Attorney-General acquitting the trade union leaders of SINTRAUNICOL.
6. 686. With regard to the legislative provisions relating to the declaration that the strikes were illegal (articles 450 and 451 of the Substantive Labour Code), the Committee recalls that, like the Committee of Experts, it has been pointing out for many years that this legislation is not in conformity with the principles of freedom of association for two reasons: firstly, because the Committee has considered on numerous occasions that the education sector does not constitute an essential service in the strict sense of the term, in which the exercise of the right to strike may be prohibited, and secondly, because, as the Committee has also stated, the 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. In these circumstances, the Committee once again requests the Government to take the necessary measures to amend articles 450 and 451 of the Substantive Labour Code in accordance with these principles.
7. 687. With regard to decision No. 0002534 itself, which declared the work stoppages illegal, taking into account that it is based on legislation which is not in conformity with the principles of freedom of association, the Committee requests the Government to invalidate this decision. Furthermore, the Committee notes that in the disciplinary proceedings initiated against the trade union leaders of SINTRAUNICOL as a result of this decision, the National Office of the Attorney-General cleared the leaders concerned of responsibility in a decision dated 9 December 2005, which was before this complaint was presented and before the Government sent its observations. In these circumstances, the Committee requests the Government to invalidate any other disciplinary proceedings which may have been initiated against the trade union officials of SINTRAUNICOL under decision No. 0002534.
8. 688. With regard to paragraph (c) of the recommendations concerning the allegations stating that agreements Nos 095 and 096, approved in December 2005 despite the opposition of the trade union, led to the invalidation of the collective agreement, the Committee noted previously the earlier agreement on working conditions, pay, benefits and incentives signed on 29 March 2006 by representatives of the University of Córdoba and SINTRAUNICOL and requested the complainant organization to report on the circumstances in which this agreement was signed and whether it was the result of free and voluntary negotiations. The Committee observes with regret that the complainant organization has not sent its comments on this matter. However, the Committee observes that in the letter from the Vice-Chancellor of the University, sent by the Government, the Vice-Chancellor refers to the conclusion of this agreement. Taking into account this communication and the copy of the agreement of which note was taken in the previous examination of the case, the Committee understands that SINTRAUNICOL and the University authorities actually signed a new collective agreement following agreements Nos 095 and 096, which would confirm the possibility for public employees of the University to bargain collectively. Unless the complainant organization presents new information, the Committee will therefore not continue to examine these allegations.