Rapport intérimaire - Rapport No. 350, Juin 2008

1. 450. The present complaint is contained in a communication of the National Federation of State and Public Service Workers (UNETE), the Joint Union of Workers in Decentralized Institutions of the Municipality of Buenaventura (SINTEDMUNICIPIO) and the Union of Workers of the Municipality of Buenaventura dated 10 August 2006. UNETE made new allegations in communications of 25 October 2006 and 28 February 2007.
2. 451. The General Confederation of Labour (CGT) and the Association of Public Servants of the Ministry of Defence and the Health Service Institutions of the Armed Forces and the National Police (ASEMIL) sent new allegations in communications of 22 September 2006 and 24 May 2007, respectively. The Union of Labour Inspectors and Public Employees of the Ministry of Social Protection (SINFUMIPROS) made new allegations in communications dated 4 July 2007 and 15 January 2008.
3. 452. The Government sent its observations in communications dated 23 April and 20 December 2007 and 22 April 2008.
4. 453. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 454. In their communication of 10 August 2006, UNETE, SINTEDMUNICIPIO and the Union of Workers of the Municipality of Buenaventura allege that, in the context of the process of administrative restructuring undertaken by the Municipal Council of Buenaventura under the terms of Agreement No. 12 of 2001, all the posts dependent on the Council were abolished resulting in the dismissal of the following trade union leaders: Ana Alegría Valencia and Manuel Barona Rayo (members of the complaints commission of the Union of Workers of the Municipality of Buenaventura), Fermín González, Vinicio Eduardo Góngora Fuenmayor, Luis Enrique Rodallegas, Luis Austerio Murillo and María Eufemia Bravo Hurtado (members of the National Executive Board of the SINTEDMUNICIPIO). The dismissals took effect between June and August 2001. The trade union leaders took legal action for the violation of trade union immunity and seeking reinstatement.
2. 455. According to the complainant organizations, only in the cases of Luis Austerio Murillo and Manuel Barona Rayo did the District Court of Guadalajara de Buga order their reinstatement in rulings dated 22 August 2003 and 16 December 2002, respectively, while the claims of the other trade union leaders for trade union immunity and their consequent reinstatement were set aside. Applications for injunctions were also lodged with the Labour Cassation Chamber of the Supreme Court of Justice, but were not successful.
3. 456. In its communication of 25 October 2006, UNETE alleges the transfer of Mauricio Lobo Rodríguez and Gustavo Vargas Burbano, members of the Executive Board of SINTRAOFICAJANAL, from their posts in the institution CAJANAL EICE; the unlawful suspension of the check off of union dues under the pretext that the members had left the union despite the indication by the complainant organization that they had not notified the union; pressure to give up membership of the union through the offer of benefits and gifts to certain members and their families; and the refusal to engage in collective bargaining with the union when it denounced the collective agreement that was in force on the grounds that it had not followed the correct procedure in denouncing the agreement.
4. 457. In their communications of 22 September 2006, 4 July 2007 and 15 January 2008, the CGT and SINFUMIPROS allege the refusal of the inspector of the Labour, Employment and Social Security Group of the Territorial Labour Directorate, in Decision No. 2359 of 5 September 2006, to register the union SINFUMIPROS. According to the decision of the administrative authority, the application for registration did not comply with the legal requirements as the union’s statutes failed to specify the nature of the union, did not indicate the period for which delegates were elected, did not establish rules for the creation of subdirectorates, while a complaints commission had been set up without consulting the other unions present in the institution and the statutes omitted to establish certain basic powers of the general assembly. According to the complainant organization, the arguments put forward to refuse registration are false. Firstly, the statutes clearly establish that it is a union composed of public employees and/or officials in an employment relationship with the Ministry of Social Protection. Moreover, article 11, paragraph 11, of the statutes provides that the general assembly of the union shall elect its leaders for a period of one year; article 22 sets out rules for the creation of subdirectorates; and article 35 provides that the complaints commission shall be subject to prior agreement with the unions present in the institution. These issues were the grounds on which registration was denied. With reference to the powers of the general assembly, it is true that the power to submit lists of claims and to call strikes was left out of the statutes since, in accordance with the Substantive Labour Code that is in force, unions of public employees and officials do not have these rights.
5. 458. The complainant organization adds that the reasons given for the refusal of registration include the claim that, as labour inspectors are responsible for raising objections to the registration of unions in general, the registration of new executive boards and amendments to statutes, they do not enjoy impartiality and independence when deciding upon the registration of a union that represents them. An application was made for the decision to be reviewed and overturned, but was not successful. The judicial authorities then issued an order for protection of constitutional rights ordering the administrative authorities to provide the union with the decision listing the objections raised, which had not been communicated. In order to prevent irremediable damage, the Supreme Court of Justice confirmed the injunction, but struck down the clause ordering the authority to draw up the decision setting out the objections. A copy of the ruling is attached.
6. 459. In its communication of 24 May 2007, ASEMIL alleges that, in conformity with Conventions Nos 151 and 154 ratified by Colombia by means of Acts Nos 411 of 1997 and 524 of 1999, a list of claims was submitted to the Central Military Hospital and the Ministry of Defence in June 2002 and January 2004, to which the Ministries of Social Protection and Defence replied that collective bargaining could not be carried out with public employees on the grounds that there were no regulations governing the respective procedures.
7. 460. The complainant organization adds that, in its ruling of 29 November 2005, the Constitutional Court upheld the validity of the provision “unions of public employees may not submit lists of claims nor conclude collective agreements” contained in section 416 of the Substantive Labour Code, on the understanding that, to give effect to the right to collective bargaining set out in article 55 of the political Constitution and in accordance with ILO Conventions Nos 151 and 154, unions of public employees may have access to other modalities which guarantee consultation on labour conditions, based on the request made in this respect by other unions, while the Congress of the Republic establishes the procedure for that purpose.
8. 461. Bill No. 40 was submitted to the Congress of the Republic in September 2002 but was shelved in view of the lack of political will to allow processes of collective bargaining for public employees. The issue was also discussed in the round-table meeting on wage and benefit policies in which it was attempted to reach agreement on the fixing of the minimum wage.
9. 462. The complainant organization also alleges that trade union leave, which was agreed between the members of ASEMIL and the Ministry of Defence in the accord of 6 May 1997, is still not granted. ASEMIL recalls that these allegations were examined in the context of Case No. 2015, when the Committee requested the Government to take steps to ensure compliance with the collective agreement of 1997. Nevertheless, and without taking into account the existence of the collective agreement, Act No. 584 of 2000 establishing the right of unions of public employees to benefit from trade union leave or Decree No. 2831 of December 2000 issuing the respective regulations, the Ministry of Defence is maintaining its continuous and reiterated refusal to grant the leave that is requested, under the pretext that it is prejudicial to the provision of the service. Despite the complaints that have been made, the Ministry of Defence has not adopted any measures in this regard. On this issue, the Ministry of Labour and Social Security (now the Ministry of Social Protection) issued opinions in relation to Disputes Nos. 007 of 7 March 2001, 0396 of 6 March 2002 and 3893 of 11 October 2004 reprimanding the Military Hospital, the Naval Hospital of Cartagena and the Ministry of Defence for not granting such leave. Nevertheless, the Ministry of Defence has ignored these decisions.
10. 463. The Ministry of Defence and the Military Hospital have initiated anti-union persecution against union leaders and members, setting in motion disciplinary procedures with a view to intimidating the workers and undermining their union organization. As a result, a request was made for the urgent intervention of the Office of the Public Prosecutor and of the Public Ombudsperson, although no progress has been made in this respect.
11. 464. Finally, the complainant organization alleges that the Ministry of Social Protection has systematically refused to register the executive board of ASEMIL. It has also refused to register the amendments made to its statutes since 2003.

B. The Government’s reply

1. 465. In its communications of 23 April and 20 December 2007 and 22 April 2008, the Government provides the following observations.
2. 466. With regard to the allegations made by UNETE and SINTEDMUNICIPIO, the Government indicates that the dismissal by the municipal authorities of Buenaventura of workers benefiting from immunity without the prior lifting of their trade union immunity, in violation of the national legislation and of international Conventions, according to the explanations made by the Mayor of Buenaventura, was a result of the process of restructuring carried out in that municipality. The restructuring process was in turn a consequence of the difficult economic and financial situation faced by the municipal authorities of Buenaventura in 2001, for which reason it had to engage in a process of the restructuring of its debt through a repayment agreement with its creditors. The Mayor indicated that following intervention by the national Government, Directorate of Fiscal Support, the municipal authorities undertook to reduce expenditure with a view to paying off the debt. As a consequence, the process of restructuring the staff began at the request of the Municipal Council which, through Resolution No. 84 of 20 December 2000, granted the Mayor the power to undertake the restructuring, which was carried out in accordance with Decree No. 050 of 2001. The Mayor, at the time of the facts, dismissed staff covered by trade union immunity without prior judicial authorization, which gave rise to court cases seeking reinstatement.
3. 467. The Mayor adds that the various courts found in favour of the municipal authorities and against the workers, for which reason the latter brought actions for amparo (protection of constitutional rights) in the Supreme Court of Justice seeking to overturn the rulings of the lower courts. The outcome was that their reinstatement was ordered, together with the payment of the social benefits that they had not received.
4. 468. In the specific case of Ana Alegría Valencia, according to the municipal administration, the amparo process was not used, for which reason she was not included in the ruling handed down by the Labour Cassation Chamber of the Supreme Court. It adds that the administration complies with legal requirements and institutions as the country is bound by the rule of law, and it therefore abides by court rulings and, in the present case, until a position is adopted by the competent authority, it is refraining from taking a decision.
5. 469. The Government provides copies of Resolution No. 84 of December 2000, Decree No. 050 of 2001 and the technical and financial study of the situation of the municipal authorities of Buenaventura.
6. 470. The Government observes that workers affected by administrative decisions have to make use of the recourse procedures offered by the law for the defence of their rights, as has occurred in the present case with certain workers obtaining reinstatement through the use of the amparo procedure. In the case of workers who make due use of the recourse procedures available, the Government cannot be held responsible, as it is necessary to take into account the fact that justice in Colombia has to be sought and that the worker affected has to initiate the action, provided that it is in accordance with the law.
7. 471. With regard to the registration of SINFUNIPROS, the Government indicates that the union applied for an injunction, which was issued by the Labour Chamber of the High Court of Bogotá, which ordered the Ministry of Social Protection to draw up in writing the formal objections raised to the registration of the union. In compliance with the ruling, the Ministry of Social Protection drew up an official list of observations in which it requested the amendment of certain articles of the statutes. The Ministry of Social Protection also appealed against the injunction to the Supreme Court of Justice. On 2 March 2007, the Labour Cassation Chamber of the Supreme Court confirmed the ruling of the High Court in respect of the right to organize, struck down the second clause ordering the Ministry to draw up an official list of observations and informed the complainants that they could refer the matter to the administrative disputes mechanism, as the legality of administrative acts, in the present case those of the Ministry of Social Protection, is subject to oversight by the administrative disputes mechanism. The Government indicates that, in compliance with the ruling of the Supreme Court of 14 March 2007, the official list of observations was set aside. The Government adds that it is necessary to comply with the decision of the administrative disputes mechanism, which is the competent body to review the legality of the decision adopted by the Ministry of Social Protection.
8. 472. With regard to the allegations made by ASEMIL on the refusal to bargain collectively with public employees, the Government indicates that collective bargaining in the public service cannot relate to conditions of work under the national Constitution, since this question should be decided by the administrative rules concerning discipline and career advancement. As to the refusal to grant trade union leave, the Government indicates that according to the information provided by the military hospital, leave is granted upon request and 521 days of trade union leave were granted from January to October 2007. The cases in which such leave was refused, were due to reasons relative to the viability of the enterprise following consultations with the head of service.
9. 473. With regard to the allegations of the persecution and harassment of the trade union and its members, the Government indicates that the allegations do not specify those affected by trade union harassment and adds that the disciplinary unit of the Ministry of National Defence had to institute proceedings against certain employees who worked four or less hours despite the fact that the terms of their recruitment and salary corresponded to eight hours. The Government indicates that this was not a case of harassment of the trade union and its members but rather the application of the law and regulations in force on hours of work. As for the allegations relative to the refusal of the Ministry of Social Protection to register the executive board and the amendments to the statute of ASEMIL, the Government indicates that the administrative authority acted in conformity with the national labour legislation.

C. The Committee’s conclusions

1. 474. The Committee notes that the present case refers to: (a) the dismissal of trade union leaders by the municipal council of Buenaventura without lifting their trade union immunity in the context of an administrative restructuring process, as alleged by UNETE and SINTEDMUNICIPIO; (b) the transfer of Mauricio Lobo Rodríguez and Gustavo Vargas Burbano, members of the Executive Board of SINTRAOFICAJANAL, from their posts in the institution CAJANAL EICE, the unlawful suspension of the check off of union dues, pressure to give up membership of the union through the offer of benefits and gifts to certain members and their families, and the refusal to engage in collective bargaining with the union; (c) the allegations of ASEMIL that public employees cannot engage in collective bargaining, trade union leave is not granted and that persecution has commenced against union leaders and members, with disciplinary procedures being initiated; furthermore, the Ministry of Social Protection has systematically refused to register the Executive Board and the amendments to the statutes of ASEMIL; and (d) the CGT and SINFUMIPROS allege that the administrative authorities have refused to register SINFUMIPROS.
2. 475. In relation to the allegations made by SINTEDMUNICIPIO and UNETE concerning the process of restructuring in the municipality of Buenaventura, the Committee notes that according to their allegations, in the context of the restructuring process, all the posts dependent on the council were abolished under Agreement No. 12 of 2001, resulting in the dismissal without lifting their trade union immunity of the following union leaders: Ana Alegría Valencia and Manuel Barona Rayo (members of the complaints commission of SINTEDMUNICIPIO), Fermín González, Vinicio Eduardo Góngora Fuenmayor, Luis Enrique Rodallegas, Luis Austerio Murillo and María Eufemia Bravo Hurtado (members of the National Executive Board of the SINTEDMUNICIPIO). The Committee notes that, according to the allegations, the union leaders took legal action against the violation of their trade union immunity and seeking reinstatement, but that the District Court of Guadalajara only ordered the reinstatement of Luis Austerio Murillo and Manuel Barona Rayo, and refused to do so in the other cases. The Committee notes that the applications for injunctions were also turned down by the Labour Cassation Chamber of the Supreme Court of Justice.
3. 476. The Committee notes the Government’s reference to the economic situation of the municipal authorities of Buenaventura as justification for the restructuring process and its indication that, according to information provided by the current Mayor of Buenaventura, the Mayor, at the time of the facts, did in practice dismiss staff benefiting from trade union immunity without prior judicial authorization. It adds that those concerned took action in the courts, in some cases obtaining reinstatement orders. Those whose claims were set aside appealed against the rulings or made use of the amparo procedure for protection of constitutional rights to assert their claims. In the specific case of Ana Alegría Valencia, the amparo process was not used, for which reason, in view of the need to take legal action to obtain a reinstatement order, she was not reinstated. In this respect the Committee observes that, while the complainant organizations indicate that the claims for reinstatement were refused, the Government reports, according to the information provided by the Mayor of Buenaventura, that the dismissed workers who benefited from trade union immunity and who took legal action were reinstated. In this regard, observing that the Government does not specifically indicate whether Fermín González, Vinicio Eduardo Góngora Fuenmayor, Luis Enrique Rodallegas and María Eufemia Bravo Hurtado took the corresponding legal action and have been reinstated, the Committee requests the Government to provide information in this regard, and particularly to provide copies of the rulings ordering or refusing reinstatement.
4. 477. With reference to the allegations made by the CGT and SINFUMIPROS, the Committee notes that, according to the allegations, the Inspector of the Labour, Employment and Social Security Group of the Territorial Labour Directorate, in Decision No. 2359 of 5 September 2006, refused to register SINFUMIPROS. The Committee notes that, according to the decision, the refusal was based on non-compliance with the legal requirements as the union’s statutes failed to specify the nature of the union, the period for which delegates are elected or rules for the creation of subdirectorates, while a complaints commission had been set up without consulting the other unions present, and the statutes omitted to include certain basic powers of the general assembly. The Committee notes that, according to the complainant organization, the arguments put forward to refuse registration are false, as the statutes clearly establish that it is a union composed of public employees and/or officials in an employment relationship with the Ministry of Social Protection; article 11, paragraph 11, of the statutes provides that the general assembly of the union shall elect its leaders for a period of one year; article 22 sets out rules for the creation of subdirectorates; and article 35 provides that the complaints commission shall be subject to prior agreement with the unions present in the institution. The Committee also notes that, with regard to the powers of the general assembly, the powers to submit lists of claims and to call strikes were indeed omitted since, in accordance with the Substantive Labour Code that is in force, unions of public employees and officials do not enjoy these rights.
5. 478. The Committee further notes that one of the reasons indicated in the refusal, according to the union, is that it is composed of labour inspectors, who are responsible for monitoring the conformity of the statutes and new executive boards of other unions, as a result of which, when establishing a union themselves, they lack impartiality and independence if they have to make decisions relating to a union that represents them. The Committee notes that an application was made for the decision to be reviewed and overturned, but was not successful and that the judicial authorities subsequently issued an injunction upholding the right to organize and ordering the administrative authorities to provide the union with the decision listing the objections raised, which had not been communicated. The Committee also notes that the Ministry of Social Protection appealed to the Supreme Court of Justice against this decision. The Committee notes that a reading of the ruling by the Supreme Court of Justice shows that it confirmed the injunction issued by the Labour Chamber of the High Court of the District of Bogotá protecting the right to organize.
6. 479. The Committee notes the Government’s confirmation of the information provided by the complainant organizations and its indication that the ruling of the Supreme Court upheld the High Court ruling of 2 March 2007 on the order for protection of constitutional rights which confirmed the right to organize, but that it struck down the second clause ordering the Ministry to draw up an official list of observations and informed the complainants that they could refer the matter to the administrative disputes mechanism. The Committee notes that, according to the Government, the lawfulness of administrative acts, in the present case those of the Ministry of Social Protection, is overseen by the administrative disputes mechanism. In this respect, the Committee notes the Government’s indication that effect will be given to the decision of the administrative disputes mechanism, which is the competent body to review the legality of the decision adopted by the Ministry of Social Protection.
7. 480. The Committee observes that, under the terms of the ruling, the order has been confirmed on a provisional basis so as to avoid irreparable damage and while the parties appeal to the administrative disputes mechanism against the decision of the administrative authority to refuse registration. The Committee considers that there is no justification for restricting the right to organize of labour inspectors. Under these circumstances, the Committee, recalling that in accordance with Article 2 of Convention No. 87 all workers without distinction whatsoever shall have the right to establish organizations of their own choosing, invites the union to appeal to the administrative disputes mechanism against the decision to refuse registration and requests the Government, taking into account the amparo ruling protecting the right to organize and until the judicial authorities rule on the matter, to take the necessary measures for the immediate registration of the union. The Committee requests the Government to keep it informed in this respect.
8. 481. Finally, the Committee observes that the Government has not furnished its observations in relation to the allegations made by: (a) UNETE regarding the transfer of Mauricio Lobo Rodríguez and Gustavo Vargas Burbano, members of the Executive Board of SINTRAOFICAJANAL, the suspension of the check off of union dues, the offering of benefits to workers to give up union membership and the refusal to engage in collective bargaining; and (b) ASEMIL regarding the refusal of the Ministry of Defence and the Central Military Hospital to engage in collective bargaining on the grounds that there are no regulations allowing unions of public employees to submit lists of claims, the refusal to grant trade union leave, the initiation of disciplinary proceedings against union leaders and members with a view to their intimidation and the systematic refusal by the Ministry of Social Protection to register the executive board and the amendments to ASEMIL’s statutes. The Committee requests the Government to furnish its observations in this respect without delay.
9. 482. With regard to the allegations of ASEMIL on the refusal to bargain collectively with public employees, the Government indicates that collective bargaining in the public service cannot relate to conditions of work under the national Constitution, since this question should be decided by the administrative rules concerning discipline and career advancement. In this respect, the Committee recalls that it has examined this question with regard to Colombia on numerous occasions and has indicated that although certain categories of public servants should enjoy the right to collective bargaining under Convention No. 98, the recognition of this right has been extended to all public servants as a result of the ratification of Convention No. 154 on 8 December 2000. In these conditions, recalling that collective bargaining in the public sector allows for special modalities of application, the Committee requests the Government to take the necessary measures to ensure respect for the right of public servants to collective bargaining in conformity with the provisions of the ratified Convention. The Committee requests the Government to keep it informed of any development in this respect.
10. 483. With regard to the allegations relative to the refusal of trade union leave, the Committee notes that according to the information provided by the Government, 521 days of trade union leave were granted from January to October 2007 and the cases in which such leave was refused were due to the needs of the service.
11. 484. With regard to the allegations relative to the anti-union persecution and harassment of trade union leaders and members, the Committee notes that according to the Government, the disciplinary procedures instituted were due to the failure of some employees to respect the hours of work and indicates that the allegations do not specify the identity of the employees affected by the harassment. In this respect, the Committee requests the complainant organization to specify the identity of the trade union leaders and members affected by the disciplinary proceedings so that the Government can confirm whether the proceedings in question were unrelated to anti-union grounds.
12. 485. With regard to the allegations relative to the refusal of the Ministry of Social Protection to register the executive board and the amendments to the statute of ASEMIL, the Government indicates that the administrative authority acted in conformity with the national labour legislation. In this respect, the Committee recalls that in conformity with Articles 2 and 3 of Convention No. 87, all workers, with the only possible exception of the members of the armed forces and the police, should enjoy the right to establish the organizations of their own choosing without previous authorization and to freely elect their representatives. The Committee requests the Government to indicate the reasons given by the administrative authority in order to refuse the registration of the executive board and the amendments to the statute of ASEMIL in the trade union registry. The Committee requests that the legislation be amended so as to bring it into conformity with Conventions Nos 87 and 98.