Rapport définitif - Rapport No. 357, Juin 2010

1. 363. The present complaint is contained in a communication of the National Union of State Public Servants (SINTRAESTATALES) dated 21 May 2009.
2. 364. The Government sent its observations in a communication dated 7 January 2010.
3. 365. 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 complainant’s allegations

1. 366. In its communication of 21 May 2009, SINTRAESTATALES alleges that the trade union organization was established on 20 June 2001 with the collaboration of workers from other State bodies and that the enterprise Metro de Medellín Ltda was notified on 21 June 2001. According to the complainant organization, nine days later, the enterprise began to give notice of dismissal to the workers, regardless of their trade union immunity as union founders. The workers concerned initiated legal proceedings on the grounds of violation of trade union immunity and called for reinstatement and the payment of outstanding wages. The complainant organization indicates that the judicial authority ruled in the enterprise’s favour and that this decision was upheld by the Medellín High Court. The workers then filed tutela proceedings for amparo protection of constitutional rights against the High Court decision. The Supreme Court of Justice rejected the petition for amparo. The workers also filed a petition with the Antioquia Administrative Court on the grounds that the dismissals were unlawful because they did not take place within the time frame allowed for restructuring and because no technical survey was conducted, as is required by law. However, the Administrative Court rejected the petition and the appeal lodged with the State Council against that decision was dismissed. The trade union has sent copies of the relevant administrative and judicial decisions.

B. The Government’s reply

1. 367. In its communication of 7 January 2010, the Government indicates that the enterprise Empresa de Transporte Masivo del Valle de Aburrá Ltda – Metro de Medellín carried out administrative restructuring with a view to ensuring the efficient delivery of public services. With this objective, the changes to the organizational structure began in October 1999 and were formalized on 13 July 2000. The Government adds that the actual restructuring process was initiated by Resolution No. 2449 of September 2000 and emphasizes that the trade union organization was registered on 5 October 2001. The Government emphasizes that this demonstrates that there was no causal link between the notification of the termination of employment of the public employees (notification by the administrative authority that the workers’ services were no longer needed) and the right to freedom of association, especially taking into account that the workers were involved in the process. The Government points out that, on 28 September 2000, the general manager of Metro de Medellín Ltda invited the workers by way of written communication to develop a participatory process of organizational change. This process affected 720 workers, who were divided into 25 groups to receive information and training on the organizational changes.
2. 368. The Government adds that the public employees initiated legal proceedings, which were dismissed, and points out that the Constitutional Court found that the modernization of the public body was in line with constitutional and legal provisions and therefore there was no need to seek judicial authorization before eliminating the posts. The Government notes that the decisions handed down by the different courts confirm that the notification of the termination of employment of the public employees was a result of the restructuring of the enterprise and was in no way to undermine a trade union organization that did not exist when the restructuring process began and when steps were first taken to dismiss the workers, who formed links with SINTRAESTATALES after the restructuring in question. The Government has sent a significant amount of documentation on the allegations.

C. The Committee’s conclusions

1. 369. The Committee notes that, in the present case, the allegations of SINTRAESTATALES concern the dismissal, in the context of the restructuring of the enterprise Metro de Medellín Ltda, of a large number of workers who enjoyed trade union immunity as the founders of the trade union. The Committee notes that the union was established on 20 June 2001 and that the enterprise was notified accordingly on 21 June 2001 and, that, according to the allegations, nine days later the enterprise began to dismiss the workers. The Committee notes that legal proceedings were initiated against this measure and that these were dismissed in the first and second instances, as were the tutela proceedings that were brought before the Supreme Court of Justice. The Committee notes that the proceedings brought before the Administrative Court and the State Council were also dismissed. The Committee also notes the evidence enclosed by the complainant.
2. 370. The Committee notes that, according to the Government: (1) the restructuring process was initiated by Resolution No. 2449 of September 2000, which in its section 3 provides for an “analysis of the relocation, transfer, elimination and/or conversion of posts”; (2) the trade union organization was registered on 5 October 2001, and it therefore follows that there was no causal link between the notification of the termination of employment of the public employees (notification by the administrative authority that the workers’ services were no longer needed) and the right to freedom of association; (3) the workers were involved in the process as they were invited to develop a participatory process of organizational change, which affected 720 workers who were divided into 25 groups to receive information and training on the organizational changes; and (4) the public employees initiated legal proceedings, which were dismissed, and the Constitutional Court found that the modernization of the public body was in line with constitutional and legal provisions and therefore there was no need to seek judicial authorization before eliminating the posts.
3. 371. In this respect, the Committee has considered that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions. Furthermore, the Committee has emphasized that it is important that governments consult with trade union organizations to discuss the consequences of restructuring programmes on the employment and working conditions of employees [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1079 and 1081]. In these circumstances, observing that the establishment of the union (notified to the enterprise on 21 June 2001 and registered on 5 October the same year) took place after the issuance of Resolution No. 2449 of September 2000 ordering the restructuring of the body and providing in its Section 3 for the elimination of posts, that the workers were involved in the process and that the judicial authorities in several instances rejected the claims of the trade union organization, the Committee will not pursue its examination of these allegations.