Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 372, Juin 2014

1. 80. The complaints are contained in a communication dated 28 May 2012, submitted by the Colombian Federation of Correctional and Prison System Workers (FECOSPEC), and in a communication dated 20 June 2013, from the Union of Guards of the National Correctional and Prison Institute (SIGGINPEC).
2. 81. The Government sent its observations in a communication dated 22 August 2013.
3. 82. 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. 83. Firstly, FECOSPEC alleges that a bill submitted on 11 April 2011 to grant prison guards civil authority status has anti-union motives given that section 12.1 of Act No. 584 of 2000 excludes persons holding positions of civil authority from trade union benefiting from immunity. The complainant indicates that the aforementioned bill was not sent to the International Labour Standards Department of the ILO in violation of the agreement reached in March 2010 during the preliminary contacts mission carried out by the ILO, when FECOSPEC agreed to withdraw its complaint under Case No. 2617 before the Committee on Freedom of Association.
2. 84. FECOSPEC also alleges that the Trade Union Association of Employees of the National Correctional and Prison Institute (ASEINPEC) interfered in the affairs of the other trade unions of the National Correctional and Prison Institute (INPEC) by convening, on 18 October 2011, a national assembly of INPEC union presidents, with the support of the Ministry of Social Security and INPEC, to reach a trade union agreement, in the absence of which, according to the President of the executive board of ASEINPEC, the President of the Republic would close INPEC and establish a new body. In view of the above, FECOSPEC filed criminal proceedings against the President of the executive committee of ASEINPEC.
3. 85. In addition, FECOSPEC indicates that, with the active participation and the interference of the Colombian Government in trade union affairs, the President of the executive committee of ASEINPEC created the Union of Prison Workers (UTP). This trade union succeeded in taking hold of large sectors of other INPEC trade unions, including FECOSPEC officials and activists. It was, however, rejected by FECOSPEC and other independent organizations. In an official letter of 3 May 2012, the Director-General of INPEC, Brigadier-General Gustavo Adolfo Ricaurte Tapia, consented to an irregular request from the UTP to receive the transfer of the union dues of more than 6,000 members of two other active trade unions (SIGGINPEC and ASEINPEC), against the individual wishes of most members and without the general assembly approving the merger or incorporation of these two trade unions within the new union.
4. 86. In its communication dated 20 June 2013, SIGGINPEC, which is a member of FECOSPEC, adds the following information regarding the transfer of trade union dues to the UTP by the INPEC management: (i) the Ministry of Labour issued an unfavourable opinion, denying the possibility of transferring the resources of the two organizations to the UTP, and indicating that the “management of the resources of the trade union shall be governed by decisions taken by its general assembly and the provisions of its statutes, not allowing for the interference of third parties in such matters”; (ii) despite the opinion issued by the Ministry of Labour, the Director-General of INPEC decided to undertake the automatic transfer of more than 2,000 SIGGINPEC members to the UTP, in non compliance with the statutes of that organization and without requests for UTP membership, thereby reducing, as of May 2012, the union’s monthly income by more than 17,340,000 Colombian pesos; (iii) this financial loss dramatically affects the organizational and operational capacities of SIGGINPEC, which, among other things, can no longer pay for the services of its in-house lawyers, its permanent secretary or the rent of its union headquarters office; (iv) on 6 July 2012, a SIGGINPEC member, the inspector Mr Rafael Pérez Arce, submitted a complaint before the Attorney-General’s Office against INPEC for ordering his registration with the UTP without his personal authorization: in a ruling of 8 August 2012, the High Court of Bogotá restored Mr Perez Arce’s SIGGINPEC membership (the Court considered that the employer had acted irregularly, especially given that the closure of SIGGINPEC or its merger with the UTP had not been approved at the union’s plenary meeting, thereby jeopardizing the survival of SIGGINPEC and disregarding its right to freedom of association); (v) on 20 September 2012, SIGGINPEC submitted a claim to the Director-General of INPEC for the reimbursement of each of the diverted dues; the claim was rejected despite the favourable opinion issued by the legal advisor attached to that body; (vi) in June 2013, out of more than 2,000 trade union members, INPEC only acknowledged the SIGGINPEC membership of ten workers; (vii) a labour dispute was filed before the Ministry of Labour for anti-union behaviour, to be then shelved under a ruling of April 2013; (viii) an action for the protection of constitutional rights (tutela proceedings) was filed against the Director-General of INPEC and against two of his employees, for favouring Mr Milton Aníbal Ospino, who passes himself off as the general secretary of SIGGINPEC, falsifying public documents for the transfer of SIGGINPEC members to the UTP; and (ix) those tutela proceedings were rejected by the 24th Labour Court of Bogotá, considering that there was no evidence of irreparable harm, whereby annulment and rehabilitation proceedings were filed before the administrative courts, which will take years to issue their ruling.
5. 87. Lastly, the complainant organizations allege that, faced with FECOSPEC’s rejection of the UTP, INPEC applied a transfer policy to the following officials of trade unions that are members of FECOSPEC, omitting in each case to carry out the procedure to lift their trade union immunity: Mr Carlos Julio Saldaña Carvajal, counsel to the executive committee of the Trade Union of Employees of the Correctional and Prison Establishments of Cundinamarca (SINTRAPECUN); Mr Hermes García García, President of the executive committee of the Trade Union of Prison Guards of Cundinamarca (SINGCUCUN), all the members of the executive committee of the recently created Female Trade Union Association of Bogotá Prisons Establishments (ASFECAB) (Ms Maria Stella Bilbao, Ms Rosalba Parrado Gomez, Ms Stella Gómez Zambrano, Ms Alixon Guatame Cadena, Ms Martha Patricia León Toloza, Ms Yolanda Acosta Lara, Ms Sabina Ayala Toscano, Ms Desmyriam Valencia Calvo and Ms Sonia García Ipus); Mr Eivar Daniel Joaqui Alvarado, the deputy member of the executive committee of the Trade Union of the High and Medium Security and Prison Establishments of Itagui (SINTRAITAGUI) and Mr Flavio Yamel Morales Camacho, counsel to the executive committee of the Itagui section of SIGGINPEC.

B. The Government’s reply

1. 88. In a communication of 22 August 2013, the Government transmits the observations made by INPEC regarding the submitted complaint. INPEC indicates that: (i) Decree No. 4150, of 3 November 2011, which removed INPEC’s administrative functions, which were transferred to the Prison Services Unit, did not violate freedom of association rights, as can be seen by the large number of trade union organizations in the prison sector; neither did it violate the commitments undertaken by INPEC with the ILO preliminary contacts mission, in March 2010, in relation to the consultation of bills that will affect trade union interests, given that no bills have been submitted, let alone any affecting trade union interests; (ii) INPEC indicates that the institution’s policy is to respect all freedom of association rights and that there are currently 56 trade union organizations in INPEC; (iii) INPEC has not made any declarations on the allegations contained in the complaint regarding the actions of the various trade union organizations in INPEC; (iv) with regard to the transfer of union dues to the UTP, INPEC proceeded in accordance with the law and the requests received following the creation of the new trade union organization, the UTP, respecting the decision taken by minority trade unions not to participate in the proposed procedure; and (v) regarding the transfer of the alleged trade union officials that were reported in the complaint, INPEC indicates, on a case by case basis, that the persons transferred were not trade union officials at the time of their transfer and that they were transferred to meet the needs of the service. It adds that Mr Saldaña and Mr Garcia filed tutela proceedings, which were rejected by the courts on the grounds that they were not trade union officials at the time of transfer.
2. 89. In the light of the information provided by INPEC, the Government states that: (i) the allegations contained in this complaint refer to State restructuring and that the Committee on Freedom of Association is not, therefore, competent to hear the complaint; (ii) the transfers were carried out as a result of a unilateral decision by INPEC, in compliance with the regulations and with a view to streamlining prison services rather than prejudicing trade union organizations; (iii) the allegations refer to internal problems between the trade union organizations, which they should resolve among themselves; and (iv) the Colombian judiciary has examined the claims made by the complainants and has ruled against them.

C. The Committee’s conclusions

1. 90. The Committee observes that this case refers to allegations of violations of freedom of association due to the submission of a reform bill by INPEC; interference by the public authorities and by INPEC in the creation of the UTP and in the irregular transfer of the trade union dues of two other trade unions to the UTP; and allegations of anti-union transfers of union officials.
2. 91. The Committee takes note of the Government’s reply which contains the information provided by INPEC and according to which: (i) the structure of INPEC has been reformed under a decree that in no way violates freedom of association; (ii) the allegations refer to internal problems between the trade union organizations, which they should resolve among themselves; (iii) the transfer of trade union dues to the UTP was carried out in accordance with the law and with the requests received following the creation of the new trade union organization, the UTP, respecting the decision taken by the minority trade unions not to participate in the proposed procedure; (iv) the transfer of workers was carried out as a result of a unilateral decision by INPEC, in compliance with the regulations and with a view to streamlining prison services, rather than prejudicing the trade union organizations; and (v) the Colombian judiciary has examined the claims made by the complainants and has ruled against them.
3. 92. Regarding the allegation that a bill of 2011 to grant prison guards civil authority status had anti-union motives to exclude guards from trade union immunity, the Committee takes note of the reply provided by INPEC denying the existence of such a bill; and that Decree No. 4150, of 3 November 2011, which partially reformed the structure of INPEC, has no effect on the exercise of freedom of association, as demonstrated by the large number of registered trade union organizations within INPEC. The Committee takes note of this information and will therefore not pursue its examination of this aspect of the complaint.
4. 93. With regard to the alleged acts of interference by the trade union organization ASEINPEC in the affairs of other INPEC trade unions, the Committee recalls that Conventions Nos 87 and 98 protect workers and their organizations against acts of non-compliance by the Government or the employer, but they do not refer to acts by trade union organizations against other workers’ organizations. Therefore, the Committee will not pursue its examination of this aspect of the complaint.
5. 94. Regarding the alleged interference by the public authorities and the INPEC management in the creation of the UTP, the Committee observes that the information provided indicates that the UTP was created on 27 October 2011, through a merger between various INPEC trade union associations, at a time when there was a multiplicity of trade unions and as a result of debates regarding the future closure of INPEC. The Committee observes that, in support of their allegations of interference, an appendix to the communications from the complainant organizations contains a copy of Request No. 7330-SUTAH from INPEC, dated 3 May 2012, addressed to the Ministry of Labour, in which INPEC refers to the background to the creation of the UTP, indicating that “as a result of the restructuring of INPEC and in order to guarantee the exercise of freedom of association without prejudice to the public service under the Institute’s charge, a Government initiative considered it necessary to merge those organizations into one”. In this regard, the Committee wishes to recall the principle that workers should be free to choose the union which, in their opinion, will best promote their occupational interests without interference by the authorities. It may be to the advantage of workers to avoid a multiplicity of trade unions, but this choice should be made freely and voluntarily [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 322]. The Committee requests the Government to ensure that, in the future, the INPEC authorities fully respect this principle.
6. 95. With regard to the allegations in relation to the transfer of the union dues of two pre existing trade union organizations (ASEINPEC and SIGGINPEC) to the newly created UTP by the INPEC authorities as of April 2012, the Committee notes that the information provided indicates that: (i) the officials of the two aforementioned pre-existing trade union organizations participated in the trade union merger process, which led to the creation of the UTP; (ii) the UTP founding document stated that “all members of dissolved trade union organizations, whose lists of members are transmitted with the aforementioned dues, are attached to the UTP”; (iii) the complainant organizations allege that the automatic transfer of trade union dues to the UTP was facilitated by the creation of fake documents, including fake lists of UTP members drawn up by SIGGINPEC officials or ex officials; (iv) the legal office of INPEC considered that the transfer of trade union dues should be preceded by the certification of the dissolution and closure of the two organizations that would no longer be receiving the dues and by a written statement from each of the members agreeing to the transfer of their dues to the UTP; (v) on that same subject, the Ministry of Labour indicated that the legislation did not provide for the automatic transfer of trade union dues to another organization and that the management of the accounts of a trade union should be governed by the decisions of its general assembly and the provisions of its statutes, not allowing for the interference of third parties in such matters; (vi) under a ruling of 8 August 2012, the High Court of Bogotá considered that INPEC had transferred the trade union dues of a SIGGINPEC member to the UTP irregularly, especially since the SIGGINPEC plenary did not acknowledge its closure or its merger with the UTP, and this had jeopardized the survival of SIGGINPEC; (vii) the court found, however, that the worker’s union dues had been transferred back to SIGGINPEC as of August 2012; and (viii) the 24th Labour Court of Bogotá rejected the tutela proceedings filed by SIGGINPEC against the management of INPEC regarding the transfer of trade union dues, considering that there was no evidence of irreparable harm to the trade union organization, and it suggested that the complainant refer the case to the ordinary courts, whereby the case is currently pending resolution before the administrative courts.
7. 96. The Committee recalls that, in general, the repartition of trade union dues among various trade union structures is a matter to be determined solely by the trade unions concerned [see Digest, op. cit., para. 474] and that respect of principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard. They should not, for example, do anything which might seem to favour one group within a union at the expense of another [see Digest, op. cit., para. 859]. In this regard, the Committee regrets that INPEC has not followed the opinions issued by its legal office and by the Ministry of Labour and observes that the High Court of Bogotá found irregularities in the transfer of trade union dues for a member of one of the complainant organizations. The Committee requests the Government to keep it informed of the ruling regarding the validity of the transfer of the trade union dues of members of the complainant organizations to the UTP and expresses the firm hope that the ruling will be issued in the near future, given the importance of the funding of trade union organizations for the effective exercise of their activities. While awaiting that decision and taking note of the ongoing disputes, the Committee requests the Government to ensure that persons who had been members of the complainant organizations prior to the creation of the UTP had individually consented to the transfer of their union dues to that organization.
8. 97. Regarding the alleged anti-union transfers of trade union officials, the Committee notes that the Government denies that the transfer decisions had any anti-union motives and indicates that they were taken to meet the needs of the service with a view to streamlining prison service operations. The Committee also observes that in respect of various cases referred to in the complaint, judicial decisions have been issued denying the complainants’ claims on the grounds that the persons transferred were not trade union officials. The Committee requests the Government and the complainant organizations to keep it informed of any further judicial decisions in this regard.