Interim Report - Report No 337, June 2005

637. The complaints appear in a communication from the National Union of Public Employees of the National Service for Training SENA (SINDESENA), the Union of Employees and Workers of SENA (SINDETRASENA.), and the the Single Confederation of Workers of Colombia (CUT) dated 30 May 2004, in a communication from the the Academic Trade Union Association of Lecturers of the University of Pedagogy and Technology of Colombia (ASOPROFE-U.P.T.C.) sent on 8 June 2004 and in communications from the Cali Municipal Enterprises Union (SINTRAEMCALI) dated 2 and 29 June 2004. Public Services International (PSI) associated itself with the complaint lodged by SINTRAEMCALI on 12 August 2004. SINDESENA sent additional information in a communication dated 21 June 2004, SINTRAEMCALI in communications dated 12 and 20 August 2004 and PSI in a communication dated 19 October 2004.

1. 638. The Government sent its observations in communications dated 24 and 27 January and 25 February 2005.
2. 639. 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. 640. In their communications of 30 May and 21 June 2004, SINDESENA, SINDETRASENA. and the CUT first of all allege that, through Decree No. 249 of 28 January 2004, the Government decided to restructure the National Service for Training (SENA) and through Decrees Nos. 248 and 250 of the same date a decision was taken to suppress the posts of 1,093 public employees and 31 public officials. The complainant organizations state that these Decrees did not establish objective criteria for singling out those employees whose posts were to be suppressed and, as a consequence, those affected by the dismissals were unionized staff, especially trade union activists and trade union leaders. Similarly, article 8 of Decree No. 250 makes provision for the suppression of eight posts corresponding to those held by trade union leaders covered by trade union immunity. The complainant organizations state that, under the same article, prior to dismissal, a request shall be made to have the trade union immunity lifted and that the individuals involved shall be retained in their posts until that immunity had been lifted. According to the complainant organizations, this measure is an attempt to ensure that the trade union leaders are not re-elected to their trade union posts. The complainant organizations add that trade union leave had been unilaterally suppressed, reducing it to such a degree that trade union leaders can no longer travel to workplaces and advise the workers.
2. 641. Secondly, the complainant organizations allege interference on the part of the administrative authorities regarding the formation of a new trade union. They state that, in November 2003, a large group of members of the trade union organization SINDESENA decided to form a new trade union organization, SINDETRASENA. The organization was established following the announcement of the Decrees concerning the restructuring of SENA, but prior to the effective dismissal of the workers. The complainant organizations state that, in accordance with Colombian legislation, the founders of a trade union organization are protected by trade union immunity against dismissal, transfer or demotion until the new trade union organization is registered and for a maximum period of six months. Similar protection is afforded to those who join the organization whilst the registration process is ongoing. According to the complainant organizations, the new organization was attempting to set up a forum within which it could open discussions with the administration concerning guarantees regarding the definition and application of criteria for determining the suppression of the posts and to establish itself as an organization for the defence of the rights of the workers remaining within SENA.
3. 642. The complainant organizations add that the administrative authority decided through Ruling No. 001661 of 26 April 2004 not to register the trade union, following a request from a high-ranking public servant within SENA who claimed that the request for registration was an “abuse of right” (the complainant organization attaches a copy of the abovementioned ruling). On 26 April 2004, SENA initiated the dismissal of 500 unionized workers, who are, at the same time, members both of SINDESENA and SINDETRASENA., having also transferred and demoted another 60 trade union members and trade union leaders.
4. 643. Thirdly, the complainant organizations state that the public entity refuses to bargain collectively with SINDESENA and SINDETRASENA.
5. 644. In its communication of 8 June 2004, ASOPROFE-U.P.T.C. alleges that the University of Pedagogy and Technology of Colombia did not renew the employment contract of Mrs. Nilce Ariza, a lecturer and trade union leader. According to the complainant organization, the Vice-Chancellor justified this measure by claiming that it was taken owing to the trade union activities of the trade union leader’s husband who is the chairperson of the trade union in question. ASOPROFE-U.P.T.C. adds that the tutela action (action for protection of constitutional rights) initiated before the National Judicial Council was rejected owing to the existence of other means of recourse. The complainant organization adds that the university administration also violated the rights of association of several lecturers by not renewing their contracts or by clearly demoting them. The lecturers affected are: Víctor Hugo Vargas, Gilma Socorro Vanegas, Lida Zúñiga, Germán Bernal and Jorge Valcárcel.
6. 645. In the communications of 2 and 29 July 2004 of SINTRAEMCALI and in the communication of 19 October 2004 of the PSI, the complainant organizations allege that, on 26 and 27 May 2004, a permanent assembly meeting took place within the administrative offices of the enterprise located in the Municipal Administrative Centre (CAM) to protest against the imposition of an agreement concluded between the Government and the financial and commercial creditors, thus contravening an agreement concluded on 15 May 2003 between the national and regional authorities, the community and the workers to safeguard the independence of the enterprise and against pressures exercised on workers to renounce their collective agreement. The enterprise does not provide any essential public service in the installations that were affected and those installations where such service are provided continued to operate as normal. Faced with the permanent assembly meeting, the management staff of the enterprise withdrew from the installations of their own accord. The metropolitan police then proceeded to surround the premises, without allowing anyone to enter or to leave, preventing the public from going about their everyday administrative business. This encircling action also made it impossible to get food and drink to the workers attending the assembly. Those relatives wishing to approach the premises were beaten and detained by police officers. Furthermore, the power, water and phone lines were cut. The labour inspectors called in by the enterprise were prevented from entering the premises by the enterprise, which threatened them. It was only on 29 May that the workers were allowed to leave the municipal enterprises of Cali building. The complainant organization states that on 31 May 2004 a judicial examination of the EMCALI premises was carried out in order to determine the state of those premises and it was noted that no physical damage had been done to the premises.
7. 646. SINTRAEMCALI states that even though the public water, sewage, energy and telephone services were not interrupted, the Ministry of Social Protection issued Ruling No. 1696 of 2 June 2004 through which what the administrative authority considered to be a work stoppage was declared illegal, empowering the enterprise freely to dismiss those workers who had participated in the supposed stoppage, in accordance with article 450 of the Substantive Labour Code. An action for annulment was lodged with the Council of State against Ruling No. 1696 in accordance with article 451 of the Substantive Labour Code. This did not prevent the enterprise, on 14 July 2004, from dismissing 49 workers, 43 of whom were trade union members and six trade union leaders (the complainant organization attaches copies of the details of the procedures carried out by the labour inspectors and the judicial examiner and of Ruling No. 1696 and other documents).
8. B. The Government’s reply
9. 647. As to the allegations presented by SINDESENA and SINDETRASENA., the Government states that, in accordance with article 209 of the Constitution, the administrative service serves the general interest and operates based on the principles of equality, ethicality, efficiency, economy, speed, impartiality and openness. The public administration has the legal authority to disband, merge or create bodies and offices and suppress or merge the posts required by those bodies and offices, powers which must be exercised according to objective technical criteria aimed at ensuring that the State, in the general interest, fulfils its commitments. The preceding points justify changes which respect to workers’ rights and which affect staff within public bodies, regardless of whether they belong to a trade union organization or not.
10. 648. The Government adds that, in order to suppress posts, an objective process must be completed which is subject to reasoning exclusively linked to the provision of good service, independent of the post occupied by each public servant.
11. 649. The Government stresses that the restructuring procedure was not, under any circumstances, intended to weaken freedom of association and the right to organize. In this regard, eight of the posts due to be suppressed were occupied by public servants with trade union immunity. SENA, in compliance with article 8 of Decree No. 250 of 2004 proceeded to request that the labour court withdraw trade union immunity, that is to say, it is the judicial labour authority that will decide whether to accept or reject the request and the Colombian Government shall respect that decision.
12. 650. As to the restructuring itself, the Government states that articles 1 and 2 of Decree No. 250 suppress 1,116 posts out of the total of all posts within SENA, corresponding to regional sub-directors, advisors, heads of centre, heads of division, heads of office, secretaries, office workers, auxiliaries and public officials. In article 3, 542 posts corresponding to regional directors, central sub-directors, professionals and technicians are created. Out of a total of 2,656 unionized public servants, 187 were made redundant through the suppression of their posts, corresponding to 7 per cent, which demonstrates that the restructuring procedure was carried out in order to renovate the public service and not to weaken the right to organize and freedom of association. The restructuring of SENA was carried out following expert studies and in accordance with Law No. 790 of 27 December 2002, with the aim of using the savings made to increase coverage of the services provided. The restructuring procedure regarding SENA is based on policy. It is linked to the implementation of the programme to renovate the public service, with the Government having decided not to disband, liquidate or merge SENA, in order to optimize the quality and provision of service in an efficient form, appropriate for the aims of the State.
13. 651. As to the registration of the trade union organization SINDETRASENA., the Government states that the freedom to form trade unions and draft the internal rules of those trade unions is not unlimited, as it must remain within the bounds set by the law and it is for this reason that administrative checks are in place in the form of the Ministry of Labour, now the Ministry of Social Protection, which must comply with, and ensure that there is compliance with, the Political Constitution and the law. The Ministry, through Ruling No. 001661 of 26 April 2004, ruled against registering the trade union organization, as the trade union was not subject to the Political Constitution and the law. Applications for reconsideration and appeal were made, as can be seen from File No. 15768 of 15 May 2004. The appeal for reconsideration was ruled on through Ruling No. 2443 of 29 June 2004 that confirmed Ruling No. 001661. The Government attaches a communication drafted by SENA in which it is stated that the Ministry considered that SENA was going ahead with a process of restructuring and that registration of the new trade union organization would be a clear violation of the precepts of the Constitution and that the right to organize is relative and not absolute, since its purpose becomes distorted when protection of labour stability is sought and the abovementioned restructuring process is obstructed.
14. 652. On 8 July 2004, the Thirteenth Criminal Court of the Circuit, in response to a tutela action for protection of constitutional rights initiated by SINDETRASENA., ruled: (1) to protect the rights to due process and association; (2) to revoke Ruling No. 001661dated 26 April 2004, so as to allow the corresponding procedure to continue according to the precise terms laid down in the applicable labour legislation; (3) consequently, to order the body requested to immediately continue with the procedure related to the registration of the trade union organization, a procedure which the Ministry rejected when issuing the ruling that was revoked by the court; (4) to release the present statement in accordance with article 30 of Decree No. 2591 of 1991 and should it not be contested, refer the action for eventual reviewal by the Constitutional Court. Further to the ruling on the tutela action for protection of constitutional rights, the Ministry of Social Protection presented Ruling No. 002781 of 22 July 2004, through which it turned down the request for registration of the trade union organization SINDETRASENA. According to File No. 26104 of 12 August 2004, the counsel of SINDETRASENA applied for reconsideration of and appealed against the ruling. Through Ruling No. 003567 of 16 September 2004, a decision was handed down concerning the application for reconsideration, upholding Ruling No. 002781 of 22 July 2004 and the appeal was ruled on through Ruling No. 04630 of 25 November 2004, upholding the decision contained in Ruling No. 002781 of 22 July 2004, with that same ruling being duly executed.
15. 653. On 3 November 2004, the Chairperson of SINDETRASENA presented a tutela action for protection of the rights to association and to organize, concerning the violation of those rights, as a result of the issuing of Rulings Nos. 002781 of 22 July 2004 and 003567 of 16 September 2004, but this action was rejected as inappropriate in accordance with the ruling of 22 November 2004, it being considered that these were the same facts behind the tutela action for protection of constitutional rights of 8 July 2004.
16. 654. The Government states that this case is one of an abuse of rights; given that social objectives are disregarded, there is doubt regarding whether the trade union organization’s real intention was to defend trade union rights. Trade union immunity, as far as it represents a constitutional concept protecting the right of freedom of association, is a mechanism established primarily for the benefit of the trade union; the protection of the labour stability of workers’ representatives is only secondary. To put it another way, the law strengthens the protection of the labour stability of trade union representatives as a means of protecting the freedom of action of trade unions. Thus, in Ruling No. C-381 of 2000, the Constitutional Court states that this “immunity constitutes a guarantee of the rights of association and to organize, rather than the protection of the labour rights of the unionized worker”.
17. 655. As to collective bargaining with SINDESENA, the Government states that the legal regime governing public servants accepts at least two scenarios: that laid out for the so-called “public employees” of the executive branch which is legal and statutory in nature and that of the “public officials” which is contractual in nature. Basically, the employment relationships of public employees are governed by the law or by valid regulations that may only be amended by laws and regulations of equal standing to those that created them. The main difference between the two scenarios is that, with contractual arrangements, it is possible to hold prior negotiations over the conditions of service and their amendment and the amendment of the corresponding benefits, with regard to improvements, following a unilateral decision on the part of the employer or through collective labour agreements.
18. 656. The Government states that, under the terms of article 414 of the Substantive Labour Code, freedom of association is extended to workers throughout the official services, with the exception of members of the national army and of the police force and any police body. However, trade unions representing public employees only carry out the following functions: (i) studying the characteristics of the relevant profession and the conditions of employment of its members; (ii) advising its members on the defence of their rights as public employees, particularly in the case of the administrative service; (iii) representing the common or general economic interests of the members, or of the relevant profession before the authorities; and (iv) submitting appropriate written representations to the relevant heads of administration. For the authorities, and in particular the hierarchical superiors of the members, the functions referred to in the last two items represent a corresponding duty to receive trade union representatives appropriately and to find an appropriate solution to their requests (article 415 of the Substantive Labour Code [C.S.T.]).
19. 657. With regard to the limitations imposed upon public employee trade unions, the Constitutional Court found the ban imposed by article 416 of the Substantive Labour Code on public employee trade unions presenting lists of grievances or concluding collective agreements to be legitimate, as is stated in ruling C-110 of 10 March 1994, which states that it may be applied. This restriction is supported by article 55 of the Constitution that guarantees the right to collective bargaining to govern employment relations, except in the case of the exceptions laid out under the law. This restriction is one such exception, established under the provision with material legal force (that is to say, the power to suspend, amend or revoke legal provisions in force, as well as to restrict or overrule the exercise of rights, liberties and guarantees in exceptional circumstances). As to ruling C-377 of 1998, upon reviewing the constitutionality of the Labour Relations (Public Service) Convention, 1978 (No. 151) and Law No. 411 of 1997 approving that Convention, the Court found that the different way in which public officials and public employees were viewed when dealing with the right to collective bargaining was in accordance with the Constitution, stating that the former are fully entitled to this right, whilst the latter are only partially entitled to the same right, in that although they (the public employees) have the right to seek and conclude concerted settlements in the case of dispute, this does not in any way affect the authorities’ ability to unilaterally set employment conditions.
20. 658. In Ruling C-201 of 2002, the Constitutional Court stated: “In order to determine whether these provisions are applicable to trade unions of public employees, they must be in line with article 416 of the Substantive Labour Code which restricts the right to collective bargaining of trade unions of public employees in the sense that they are forbidden from presenting lists of grievances and concluding collective agreements, a restriction that the Court has repeatedly found to be in accordance with the Political Constitution.”
21. 659. As to trade union leave, the Government attaches a report from the Directorate of SENA which states that currently, taking into account the new way in which the body is organized, leave may not be granted on a fixed basis but must instead be granted according to the service’s needs.
22. 660. As to the dismissal of Mrs. Nilce Ariza, temporary lecturer at the University of Pedagogy and Technology of Tunja, the Government states that the abovementioned university is a national public body, created through Presidential Decree No. 2655 of 1953. As such, it is subject to the regulations laid down regarding such issues as the selection and hiring of teaching staff. The main standard governing this issue is Law No. 30 of 1992 “through which the Public Higher Education Service is organized” and, in particular, Chapter III, on the “special regime of state universities and other state or official Higher Education institutions”. The third point of article 57 of the abovementioned law establishes that “the special character of the regime of state or official universities shall encompass the organization and selection of executive boards, teaching and administrative staff … in accordance with the existing law”. The same law allows universities to lay down certain procedures regarding the hiring of teaching staff, within the framework laid out by Law No. 30. Based on this, the university issued Agreement No. 021 of 1993, Agreement No. 60 of 2002 and Resolution No. 57 of 2003, which govern the teaching staff selection process.
23. 661. Mrs. Ariza was appointed to a “temporary” teaching position, in accordance with article 74 of Law No. 30 of 1992. Her appointment was to cover the period between 26 February and 26 December 2002. Subsequently, Mrs. Ariza was again appointed to a temporary teaching position, for the period between 17 February and 17 December 2003, through resolution No. 0609 of 2003.
24. 662. On 23 January 2004, Mrs. Ariza exercised the right of petition, requesting that her contract be renewed. The university replied to her, saying that such a renewal was impossible under the law, given that her appointment was temporary, that is to say, for a set period, as is explained above and as was agreed to by her on her accepting the abovementioned appointment. Similarly, she was informed that if she wished to be hired again, then she would have to undergo the recruitment process that the university was running to fill such vacancies. In the report elaborated by the rector of the university and that the Government sends attached, it is stated that the lecturer underwent the selection process and was selected and hired as a temporary member of the teaching staff.
25. 663. The Government adds that in the case of appointments “of a duration of less than a year”, the law does not require the university to provide the reasons why it did not renew the contract, and so the request for renewal that Mrs. Ariza believed she was justified in submitting could not be granted. In fact, article 5 of Agreement No. 60 of 2002 clearly states “employment of temporary teaching staff will be carried out through an administrative act of appointment, for a fixed period of no more than ten months, for teaching, research and extra-curricular activities, with employment coming to an end once the period has expired, with no need for a specific communication to be issued to that effect”.
26. 664. The Government adds that Mrs. Ariza was the founder of the trade union ASOPROFE-U.P.T.C. and, as such, the law afforded her the protection corresponding to the trade union immunity afforded to founders of trade unions. However, in accordance with Law No. 584 of 2000, this immunity covers the founders of the trade union organization from the time it is set up to two months after the registration of the trade union organization in the trade union registry, with a maximum duration of six months. Mrs. Ariza enjoyed trade union immunity from 10 June 2003 (the date on which the trade union organization was set up), until 7 December of the same year, owing to the fact that the registration of ASOPROFE-U.P.T.C. in the trade union register was carried out on 7 October 2003. In other words, during the period in which the founder of the trade union was covered by trade union immunity, she was in the employ of the university. Moreover, Mrs. Ariza was also registered as a substitute member of the executive committee of the abovementioned trade union. In accordance with the law, this means that she was covered by the trade union immunity corresponding to executive committee members. However, in the case of individuals employed for a fixed term, as is the case for temporary teaching staff, this immunity remains in place whilst the respective labour agreement or appointment is in force, being fixed term in nature, the latter must end on the date envisaged as a part of that agreement or appointment.
27. 665. As to the allegations that other lecturers whose appointments had come to an end were affected, the Government states that this was due to the fact that all of the temporary lecturers’ contracts ended in December 2003, with selection being carried out in 2005 from amongst those who had submitted their resumés to the corresponding schools, regardless of whether they were union members or not.
28. 666. With regard to the allegations presented by SINTRAEMCALI, the Government states that the Constitution establishes that public services are inherent to the social aim of the State and consequently the State may intervene to ensure the efficient provision of those services to all the inhabitants. The abovementioned services may be provided by the State, directly or indirectly through organized bodies or private individuals. In any case, the Government reserves the right to regulate, control and monitor public services. To this end, it set up the Superintendent for Domestic Public Services. The Government adds that EMCALI is a municipal state industrial and commercial enterprise, whose main task is the provision of public water and sewage services and the distribution and marketing of energy and telecommunications services.
29. 667. The Government states that, in April 2000, EMCALI was in the midst of a crisis. The enterprise was affected by various factors listed under the law as sufficient grounds for the Superintendent to decide to take possession of the enterprise’s assets for administrative reasons (Ruling No. 002536 of 3 April 2000). EMCALI’s end-of-year deficit was 489,962,000,000 Colombian Pesos, or US$181,467,407.
30. 668. In April of 2002, through an executive ruling, the President of the Republic authorized the extension of the period during which the superintendent could retain possession of the enterprise by another year, that is to say, until April 2003. This presidential authorization was granted, amongst other reasons, because of the steps that the Superintendent implemented to correct the problems that gave rise to the enterprise being taken possession of, which included “… (e) refinement, adjustment and alternatives for financing the pensions liability; (f) revision and renegotiation of the collective labour agreement …” (Executive Ruling No. 54 of 1 April 2002).
31. 669. By the beginning of 2003, EMCALI already had an annual deficit of around US$104,000,000, resulting in non-payment of sums it had agreed to pay its creditors. Similarly, the enterprise did not have the necessary resources to carry out the repair work and technological expansion required in order to provide its users with an adequate public service and, on occasions, it did not even have the money to pay its workers’ wages.
32. 670. Consequently, in January 2003, the superintendent issued Ruling No. 000141 which in item 6 listed the steps necessary to correct the problems which gave rise to the enterprise being taken possession of. In point (b), it establishes the need for EMCALI and SINTRAEMCALI to revise the collective labour agreement “… all of this in accordance with the due guarantees set down in law”.
33. 671. In March of that year, the Superintendent issued ruling No. 000562 through which it was decided to amend the process by which possession was taken of the enterprise, with the aim of beginning liquidation proceedings. In the face of this dramatic situation, a huge effort was launched to restructure the enterprise’s liability. All the enterprise’s international and national creditors were summoned as part of a programme called “Todos Ponen” (We all contribute) to allow EMCALI to be saved; this programme included the revision of the collective labour agreement. The programme was headed by a committee, directly convened by the Office of the President of the Republic, in which SINTRAEMCALI participated. The other members of the committee were, amongst others, three distinguished senators of the Republic, six members of the Chamber of Representatives, the President of the Departmental Assembly, the President of the Municipal Council of Cali, the City Mayor, who chaired the committee, the Governor of the Department, trade union representatives, representatives of the communities, public watchdogs, the Special Agent for EMCALI and the members of the Bargaining Committee for the Revision of the Collective Labour Agreement.
34. 672. Of the five meetings that took place between February and June 2003, two were attended by the President of the Republic, meaning that they had to be held at the Marco Fidel Suárez airbase for security reasons. In September 2003 a pre-agreement document was signed with the creditors and discussions concerning debt restructuring began, discussions that were held within various working groups, which started to meet in January 2004. Within these groups EMCALI and the experts presented and explained the financial model used in the rescue package and the positive points contained in the agreement to the participants.
35. 673. The workers, represented by SINTRAEMCALI, actively participated in all the meeting of the working groups.
36. 674. In March and April of 2004 the working groups met in the boardroom of the general management of EMCALI with the participation of: the representatives of the national Government, the Superintendent, the City Mayor, the Governor of the Department, the trade unions, the municipal council and the departmental assembly. The agreements concerning the future of the enterprise were presented and discussed during these meetings. The concerns of the trade union organization were heard and examined. These discussions were the basis of the document entitled: “Agreement for operational financial and labour adjustment for the restructuring of EMCALI’s debts”.
37. 675. It should be pointed out to the Committee that during the meetings, various city councillors proposed that the enterprise should be liquidated and that a new one should be created. This proposal gave rise to a meeting with the President of the Republic in the Nariño Palace (the official presidential residence) during which the President repeated that he did not wish to see the enterprise enter into liquidation and invited the Council of Cali and all the participants in the programme to do all that they could to save EMCALI.
38. 676. With regard to the revision of the collective labour contract, the Government states that this process was one of many efforts to save EMCALI. On 2 February 2003, the general assembly of members of SINTRAEMCALI gave its approval for the process of revising the agreement. In the complaint, the workers state that the meetings concerning this revision were held in “military and police barracks”. In this respect, the Government states that in mid-February 2003, EMCALI and SINTRAEMCALI appointed negotiators and began the process of revising the agreement in meetings from February to June of that year which were held at the following locations: on seven occasions in the Friedrich-Ebert-Stiftung (FES) auditorium of Cali town hall; on nine occasions at the executives’ club which is neither a military nor a police barracks; on 12 occasions in the boardroom of the general management of EMCALI.
39. 677. The negotiations progressed amidst a climate of dialogue and agreement to the point that, on 27 June, a pre-agreement document concerning the revision of the collective agreement was signed. In this document SINTRAEMCALI’s support for the “Todos Ponen” programme to rescue EMCALI was clearly established. On 4 May, the agreement was signed and deposited with the Ministry of Social Protection, thus entering into force as the new collective labour agreement.
40. 678. Although the content of the collective agreement does not form a part of the complaint, the Government wishes to refer to all the critical aspects of the EMCALI rescue package. As to labour stability, the agreement states that EMCALI shall not terminate its workers’ contracts unless there be just cause and following the completion of each and every one of the procedures set out in the collective agreement or under the law. Non-compliance by EMCALI shall give rise to the individual dismissed being reinstated; with regard to fixed trade union leave, the agreement states that the ten members of the executive committee and the two members of the claims committee may benefit from fixed leave; EMCALI recognizes SINTRAEMCALI as the sole valid representative of the workers; as to financial benefits, the Government provides the following comparative list:
41. Bonus
42. Under the law
43. Under the agreement in force
44. Half-yearly June payment
45. 15 days’ wages
46. 15 days’ average wages
47. Additional half-yearly payment
48. Not applicable
49. 11 days’ average wages
50. Christmas
51. 30 days’ wages
52. Same
53. Extra half-yearly Christmas payment
54. Not applicable
55. 16 days’ average wages
56. Holiday
57. 15 days’ wages
58. 30 days’ wages
59. Length of service
60. Not applicable
61. 9 to 50 days’ average wages depending on length of service
62. Continuity
63. Not applicable
64. 130 days’ average wages
65. Total
66. 60 days’ wages
67. 130 days’ average wages
68. 679. As to the financial benefits provided by EMCALI during the period when the agreement is in force (in US dollars):
69. Type
70. Value
71. Family medical service
72. 2 240 000
73. Educational benefits
74. 8 000 000
75. Social assistance
76. 22 400
77. Domestic emergencies
78. 44 800
79. Housing loans
80. 800 000
81. Health services
82. 2 800 000
83. Total
84. 13 907 200
85. 680. As to wage raises, allowance was made for annual increments during the period in which the agreement was in force. Furthermore, with regard to the scope of SINTRAECMCALI’s participation in the running of EMCALI, the Government states that in order to encourage the participation of SINTRAEMCALI regarding the most important decisions taken by EMCALI, a consultative committee was established with functions similar to those of an executive board, made up of five permanent members: (i) the Mayor of Cali who chairs the committee; (ii) the Deputy Minister for Mines and Energy; (iii) the Superintendent for Domestic Public Services; (iv) the Chairman of the Chamber of Commerce of Cali; and (v) the Chairman of SINTRAEMCALI. The High Presidential Adviser and the Chairman of the state oil company ECOPETROL and the legal representative of EMCALI also sit in on the committee as special guests. The work of the committee consists of advising the enterprise and the Superintendent on decisions that may be linked to the running of administrative, budgetary, financial and labour affairs. The abovementioned committee has met on six occasions, with the participation of the trade union organization, as can be seen from the minutes in the annex to the enterprise’s reply. SINTRAEMCALI also takes part in the meetings of the committee for the revision of transactions in which investments planned by the enterprise for the year 2004 were approved.
86. 681. As to the permanent assembly meeting held in protest against privatization and for public ethics, the Government states that, on 26 May 2004, a group of workers from the enterprise entered the central EMCALI building, located in CAM, and once there, began to take over the enterprise’s installations, without any apparent grounds or any reasons of a justifiable trade union nature during working hours and breaking completely with the environment of dialogue, cooperation and participation described above. Some of the protestors, their faces covered and armed with truncheons, proceeded to intimidate and frighten those members of the public present in the enterprise’s installations at that time, as well as the employees, public servants and management staff working at those installations, ordering people to leave, which led to the personnel immediately leaving the installations which were left in the hands of the trade union organization.
87. 682. 26 May was a Wednesday, that is to say, a working day when services are provided to the public and the occupation began at around 9 a.m., during working hours; this activity was not sanctioned by the enterprise’s executive board. The Government states that the arguments that the permanent assembly meeting was held in protest against corruption and to prevent the privatization of the enterprise are in reality unfounded. Firstly, on several occasions the authorities have announced that the enterprise will not be privatized.
88. 683. Secondly, SINTRAEMCALI has a seat on EMCALI’s consultative committee, which, as has already been explained, advises EMCALI with regard to decision-making in all the most important areas of the enterprise. Therefore, there was no need to resort to violence and threats to prevent something which, not only was not going to take place but which could also have been dealt with through the appropriate management forums by the trade union as a member of the abovementioned committee.
89. 684. Thirdly, SINTRAEMCALI is a member of the committee in charge of the revision of transactions, a forum through which it has every possibility of reporting and even preventing supposed acts of corruption. That the trade union should then be forced to resort to violence and intimidation to condemn corruption, when it could have done so through the mechanisms which allow it to participate in the management of the enterprise at the highest levels, rings very hollow indeed.
90. 685. The Government stresses that SINTRAEMCALI participated in the work of the different committees and working groups that debated and decided on the rescue of the enterprise and in the meetings in which a rescue package was put together. The Government also states that SINTRAEMCALI does not present any evidence concerning the supposed pressure brought to bear on the trade union organization during the revision of the collective agreement. On the contrary, the Government has given a detailed explanation of all of the procedures followed, the forums established and the guarantees provided. Moreover, it has granted some of the special benefits that the EMCALI workers enjoy in light of the jointly revised agreement.
91. 686. The Government recalls that on repeated occasions the Committee on Freedom of Association has reiterated that although trade union organizations have the right to hold meetings to discuss occupational questions, and that with regard to those meetings the authorities should refrain from any interference, it is also the case that such meetings not only should be held on trade union organization premises but that public order must not be disturbed, nor its maintenance seriously and imminently endangered, events which allow for the presence and intervention of the authorities.
92. 687. Given this state of affairs, the Government permitted the authorities to intervene, considering that intervention was a genuine necessity in this case and ensured that the abovementioned intervention was limited to that strictly necessary in order to avoid a further deterioration of public order. The measures adopted were limited, firstly, to closing the roads around the building where the EMCALI offices are located to motor vehicles and secondly to cordoning off the building. The Government states that the labour inspectors noted that the points of entry to the enterprise were closed off by the traffic and police authorities and that all the installations of CAM were protected by a National Police metal barrier manned by the national police riot squad.
93. 688. With regard to SINTRAEMCALI, its behaviour went beyond the boundaries established by the legislation governing public demonstrations because the violent occupation took place within the installations of the enterprise, during working hours, as can be seen from the notes taken by the labour inspectors. This means that the trade union organization’s behaviour was clearly not defensible under the terms of Conventions Nos. 87 and 98, as it carried out the occupation at the workplace, during working hours and without the consent of the employer.
94. 689. The Government states that when comparing, on the one hand, the forums for participation and decision-making it made available to SINTRAEMCALI with regard to any issues related to the financial, budgetary and labour situation within the enterprise and, on the other hand, the type of behaviour displayed on the day of the violent occupation, it is clear that the activities undertaken on that day were not undertaken on trade union grounds. SINTRAEMCALI had access to a sufficient number of forums to be able to condemn the supposed privatization process, corruption or immoral behaviour without resorting to a violent occupation.
95. 690. The Government recalls that the Committee on Freedom of Association has stated that whosoever participates in trade union activities in his employer’s time, using the personnel of his employer for trade union purposes and using his business position to exercise improper pressure on another employee, may not invoke the protection of Convention No. 98 or to contend that, in the event of dismissal, his legitimate trade union rights have been infringed. This is in accordance with other statements made by the Committee in which it is stressed that the fact that a person holds a trade union office does not confer immunity against possible dismissal.
96. 691. In the present case the dismissal of the trade union members who participated in the occupation was carried out due to the seriousness of the fault committed. However, the Government should like to point out that EMCALI, in compliance with the principles of due process which all legal and administrative actions in Colombia follow under the mandate of the Constitution and also in applying all of the provisions contained in the collective labour agreement currently in force, called on those who participated in the occupation and whose identities could be clearly established thanks to video footage of the event, to answer the charges against them. Several of the workers who have now been dismissed did not attend the hearing to which they had been convened and thus voluntarily deprived themselves of that defence mechanism granted to them by the Constitution, under law and by the agreement.
97. 692. The Government states that in Colombia there exist a wide variety of recourses and judicial bodies to which those workers belonging to SINTRAEMCALI who took part in the occupation and who were dismissed could have turned. The workers are covered by a reinstatement procedure, which may be initiated by those workers who are covered by trade union immunity and who have been dismissed based on the declaration of the illegality of a work stoppage – as occurred in this case. Such actions go before the labour judges of the Republic and a special, streamlined, precise procedure exists for just such a circumstance.
98. 693. The legal order also provides for the possibility of those workers who are not covered by trade union immunity going before a tribunal in an attempt to be reinstated. There is also the amparo (enforcement of constitutional rights) action, or the tutela action for protection of constitutional rights, designed to protect the basic rights of citizens in the face of actions as much carried out by individuals as by the authorities.
99. 694. The executive board of SINTRAEMCALI began the tutela action on 7 July 2004 before the Higher Court of the Department of Valle. As a part of this procedure, both due process and the right to work were cited as basic rights. On 22 July the Court issued a ruling in which it took two important decisions. Firstly, it ordered EMCALI to abstain from requesting the courts to withdraw the legal personality of SINTRAEMCALI. Secondly, it did not protect the rights to work and to due process, as it considered that the workers involved in the stoppage had been invited to mount a defence within due process. An appeal was launched and the Supreme Court of Justice upheld the decision of the first instance.

C. The Committee’s conclusions

1. 695. The Committee notes that this case refers to: (a) the allegations presented by the National Union of Public Employees of the National Service for Training SENA (SINDESENA), the Union of Employees and Workers of SENA (SINDETRASENA.) and the Single Confederation of Workers of Colombia (CUT) are related to the collective dismissal of trade union members and trade union leaders within the framework of the process of restructuring SENA, the refusal by the administrative authority to register SINDETRASENA. and the refusal by SENA to collectively bargain with SINDESENA and SINDETRASENA.; (b) the allegations presented by the Academic Trade Union Association of Lecturers of the University of Pedagogy and Technology of Colombia (ASOPROFE-U.P.T.C.) with regard to the dismissal, despite trade union immunity, of the lecturer Mrs. Nilce Ariza and the dismissal of other lecturers; and (c) the allegations presented by Cali Municipal Enterprises Union (SINTRAEMCALI) concerning the administrative authority’s declaration that a permanent assembly meeting held on EMCALI premises was illegal, a declaration which led to the dismissal of 43 trade union members and six trade union leaders.
2. 696. As to the allegations presented by SINDESENA, SINDETRASENA. and CUT concerning the collective dismissal of trade union leaders and trade union members within the framework of the process of restructuring SENA, the Committee notes that, in accordance with the statements of the complainant organizations, Decrees Nos. 248, 249 and 250 ordered the restructuring of SENA, making provision for the dismissal of 1,093 public employees and 31 public officials (the complainant organization attaches copies of the abovementioned Decrees) and that, due to the fact that the abovementioned Decrees did not establish specific criteria for the dismissal procedure, the majority of those individuals dismissed were unionized workers, and eight posts occupied by trade union leaders were suppressed.
3. 697. Similarly, the Committee notes that according to the complainant organizations, once the Decrees became public knowledge, a large number of workers who were members of SINDESENA decided to set up a new trade union organization, SINDETRASENA, but the request for registration was refused in the same way as the administrative appeals that had been lodged. The Committee notes that according to the complainant organization, at the same time that registration was being denied, in April 2004, the Government began a collective dismissal procedure for over 500 workers who enjoyed immunity in their capacity as founders of the trade union SINDETRASENA and who were, at the same time, members of the trade union SINDESENA.
4. 698. The Committee notes that according to the Government, Decree No. 250 made provision for the dismissal of 1,116 workers from the total workforce of SENA and out of a total of 2,656 public servants, 187 were dismissed. As to the eight trade union leaders whose posts are to be suppressed, the Committee notes that the abovementioned Decree states that a request must be made to the judicial authority for the withdrawal of trade union immunity and that the Government undertakes to respect the ruling that is issued.
5. 699. The Committee notes that with regard to the collective dismissal procedure there is a discrepancy between the statements made by the complainant organizations and those made by the Government. The former state that the Decree ordered the suppression of 1,093 posts, including those posts currently occupied by eight trade union leaders, that the Decree does not establish clear criteria for the dismissal procedure, thus allowing SENA to proceed to dismiss mainly unionized workers and that as a consequence of the refusal to register the trade union SINDETRASENA, over 500 unionized employees belonging at the same time to both SINDESENA and SINDETRASENA were dismissed. The Government, on the other hand, states that orders were given for the suppression of 1,116 posts, with only 187 unionized workers being dismissed. This being the case, in order to be able to reach its conclusions based on all the facts, the Committee requests the Government to inform it of how many workers were dismissed in total, and how many of those dismissed were trade union members or trade union leaders.
6. 700. As to the dismissal of the eight trade union leaders in particular, the Committee takes note of the Government’s undertaking to abstain from dismissing them until the withdrawal of their trade union immunity by the judicial authority but considers that the Government should take into account Recommendation No. 143 concerning protection and facilities to be afforded to workers’ representatives in the undertaking, which, amongst the specific protection measures, advocates “recognition of a priority to be given to workers’ representatives with regard to their retention in employment in case of reduction of the workforce” (paragraph 6(2)(f)). The Committee likewise recalls that in a case in which the government considered the dismissal of nine trade union leaders to be part of restructuring plans, the Committee emphasized the advisability of giving priority to workers’ representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, paras. 960 and 961]. In this regard, the Committee requests the Government to take the necessary measures to retain the posts of the trade union leaders, so that they may carry out their duties during the restructuring process and, should it prove impossible to retain these posts, to transfer them to similar posts.
7. 701. As to the refusal to register the trade union organization SINDETRASENA, the Committee notes that according to the complainant organizations, SINDETRASENA was set up by a group of workers belonging to the trade union SINDESENA within the framework of a process of restructuring SENA which was already under way and which involved the dismissal of a large number of workers. The Committee notes that, having read the various appeals lodged by SINDETRASENA against the rulings refusing registration, copies of which were attached both by the complainants and the Government, it can be concluded that Ruling No. 1661 which refused registration was challenged through a tutela action because it was issued before the expiration of the period set aside for the correction of the defects contained in the request for registration. Consequently, the tutela ruling ordered that the registration procedure continue. The Committee notes that, in accordance with the terms of the tutela ruling, the registration procedure was allowed to continue, only to be refused yet again through Ruling No. 2781 for non-compliance with the legal requirements in the statutes. An appeal was lodged against this ruling, with the ruling being upheld on 25 November 2004.
8. 702. The Committee notes in this respect that in accordance with the statements made by the complainant organizations, SINDETRASENA was set up with the aim of protecting workers from dismissal through the trade union immunity afforded to founders of trade unions, given that the trade union organization SINDESENA already existed within the enterprise and that the workers retained their membership of SINDESENA whilst setting up the new organization, SINDETRASENA. This being the case, the Committee regrets the fact that the Government did not consult with the existing trade union organization (SINDESENA) prior to issuing Decrees Nos. 248, 249 and 250. The Committee recalls that rationalization and staff reduction processes should involve consultations or attempts to reach agreement with the trade union organizations, without giving preference to proceeding by decree and ministerial decision [see Digest, op. cit., para. 936]. Despite the fact that the decrees concerning restructuring have already been issued, within the framework of the restructuring process under way within SENA, the Committee requests the Government to take the measures necessary to carry out wide-ranging consultations with the trade union organization SINDESENA on the consequences of the abovementioned process prior to continuing with dismissal proceedings.
9. 703. As to the allegations concerning SENA’s refusal to collectively bargain with SINDESENA and SINDETRASENA, the Committee notes that, according to the Government, public officials do not have the right to present lists of demands, in accordance with the terms of article 55 of the Political Constitution which establishes the right of the workers to collectively bargain within the limits imposed by the law and article 416 of the Substantive Labour Code which forbids collective bargaining in the case of public employees. The Committee notes that, according to the Government, the employment relationship of public employees is governed by a “legal and regulatory” regime, that is to say, it is established by the law or by valid regulations that may only be amended by laws and regulations of equal standing to those that created them.
10. 704. In this regard, the Committee notes that Colombia has ratified Conventions Nos. 98, 151 and 154 and consequently public sector and central public administration workers should enjoy the right to collective bargaining. The Committee states however that, in light of Convention No. 154, collective bargaining within the public service allows for special modalities of application to be fixed. The Committee shares the point of view of the Committee of Experts in its general report for 1994, and recalls that, while the principle of autonomy of the parties to collective bargaining is valid as regards public servants and public employees covered by Convention No. 151, this may be applied with a certain degree of flexibility, given the particular characteristics of the public service, especially the budgetary limits with which it is faced. At the same time, the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants within the established budgetary framework [see Digest, op. cit., para. 899]. In this regard, the Committee considers that, in the present case, the limits imposed on public employees with regard to the possibility of collectively bargaining contravene the terms of the abovementioned Conventions, given that public employees may only submit “appropriate written representations” which will not be the subject of any negotiations, in particular with regard to employment conditions, the determination of which is the exclusive competence of the authorities. In this regard, the Committee requests the Government to take the necessary measures to ensure that, following consultations with the trade union organizations concerned, legislation be amended in order to bring it into line with the Conventions ratified by Colombia so that the workers in question may enjoy the right to collective bargaining.
11. 705. As to the suppression of trade union leave within SENA, the Committee notes that, according to the Government, such leave cannot be fixed in nature and consequently must be granted according to the needs of the service. Taking into account the principles referred to in the previous paragraph, the Committee expects that, in the future, leave will be the subject of negotiations between the trade union organizations and SENA.
12. 706. As to the allegations presented by ASOPROFE-U.P.T.C. concerning the dismissal, despite trade union immunity, of the lecturer Mrs. Nilce Ariza and the dismissal of other lecturers, the Committee notes that according to the Government, the trade union leader had signed two temporary work contracts, the first running from February to December 2002 and the second from February to December 2003. The Committee notes that the request for the renewal of the contract for the 2004 period submitted by Mrs. Ariza was refused because, according to the applicable legislation, such a request is not valid in the case of temporary contracts; instead, the university invited Mrs. Ariza to put herself forward as a candidate for the 2004 period, as she had done on previous occasions. The Committee notes that, according to the Government, when Mrs. Ariza put herself forward as a candidate as a part of the selection procedure in previous years, she was chosen and hired as a temporary lecturer, but that last time Mrs. Ariza refused to put herself forward as a candidate. The Committee notes that temporary contracts for all temporary lecturers expired in December 2003 and that a procedure was initiated to select staff for 2004 from amongst those who had put themselves forward as candidates, independently of whether they belonged to a trade union or not.
13. 707. On the other hand, with regard to the trade union immunity afforded to Mrs. Ariza as a founder of a trade union, the Committee notes that during the period in which the immunity was in force, the trade union leader was in the employ of the university. As to the trade union immunity granted to her as a substitute member of the executive committee of the trade union, the Committee notes that, according to the Government, both fixed-term and temporary lecturer contracts end once their period of duration has expired, with no need for a request for judicial authorization. As to the other lecturers whose contracts were not renewed, the Committee notes that according to the Government their circumstances are identical to those of Mrs. Ariza, as all temporary contracts expired in December 2003.
14. 708. The Committee considers that the fact that Mrs. Ariza was not hired for the year 2004 is due to her refusal to present her candidature as she did on previous occasions when she was hired, that the trade union immunity she enjoyed as a founder of a trade union organization was not affected because the trade union leader was employed by the university during the period when it was in force and that, with regard to her trade union immunity as a member of the executive committee, the very nature of a temporary lecturer’s contract as a fixed-term contract implies that it will expire when the end of the term specified in the contract is reached and in these circumstances it is inappropriate to request that trade union immunity be withdrawn because in this case there is no attempt to dismiss a worker, rather the worker has simply completed the contract that was signed with the employer. The Committee considers that the same conclusions may be drawn regarding the other temporary lecturers whose contracts were not renewed. This being the case, the Committee considers that the principles of freedom of association have not been violated and consequently will not proceed with a further examination of these allegations.
15. 709. As to the allegations presented by SINTRAEMCALI concerning the administrative authority’s declaration that a permanent assembly meeting held on EMCALI premises was illegal, a declaration which led to the dismissal of 43 trade union members and six trade union leaders, the Committee notes that, in accordance with the complainant organization’s statements, the permanent assembly meeting was held between 26 and 27 May 2004 as a consequence of the failure of the negotiations which were held within the framework of a process aimed at restructuring EMCALI, which ended with a presidential decision to liquidate the enterprise. The Committee notes that, according to SINTRAEMCALI, the abovementioned assembly was carried out in a peaceful fashion in the administrative installations of the enterprise EMCALI. Although the enterprise provides water, sewage, energy and telecommunications services, these services are not provided through the administrative installations but through other installations belonging to the enterprise. Consequently, provision of public services was not interrupted. The Committee notes that, according to the complainant organization, once the management staff of the enterprise decided to leave the installations of their own free will, the Government decided to blockade the installations, preventing anyone from going in or out. The Committee notes that according to the copies of the documents sent in by SINTRAEMCALI, two labour inspections were carried out at the request of the enterprise, the first was scheduled for 26 May but could not be carried out because the police refused to allow the labour inspector into the building, and the second on 27 May, during which the labour inspector was only able to note that there was no-one on the first floor of the installations where members of the public are served and could not tell if there was anyone working on the other floors because access to these floors was denied. The Committee also notes that, according to the complainants, on 29 May the workers were allowed to leave and that, during the judicial procedures that took place on 31 May, it was noted that no damage had been done to the installations.
16. 710. The Committee also notes that as a consequence of the permanent assembly meeting, the Ministry of Social Protection, in accordance with article 451 of the Substantive Labour Code, issued Ruling No. 1696 of 2 June 2004 through which it declared the collective work stoppage to be illegal, in light of which, on 14 July 2004, the enterprise proceeded to dismiss 49 workers, including 43 trade union members and six trade union leaders.
17. 711. The Committee notes the Government’s extensive reply (and the documents attached) in which it reports on the economic situation affecting EMCALI and the various measures adopted in order to resolve the crisis the enterprise was undergoing, as well as the numerous rounds of bargaining carried out with creditors and the trade union organization SINTRAEMCALI, which took part in various committees set up for that purpose. As to the Permanent Assembly meeting, the Committee notes that, according to the Government, during the negotiations and for no apparent reason, SINTRAEMCALI proceeded to use violence to occupy the EMCALI installations, frightening those public servants and members of the public in the installations at the time, for which reason the authority proceeded to surround the installations in order to ensure that public order was not disrupted any further. The Committee notes that, according to the Government, the occupation of the installations took place during working hours, within the enterprise and without any request for the consent of the executive board of the enterprise having been made and the dismissals of the workers were a consequence of the seriousness of the offence committed (the occupation of the installations). Moreover, the Committee notes that, according to the Government, in accordance with due process, the workers were called upon to answer the charges against them prior to the dismissal proceedings but that they did not attend the hearings, that the tutela action initiated by SINTRAEMCALI in order to obtain the reinstatement of the workers was rejected owing to the fact that the accused had access to normal legal channels, as well as other relevant legal recourses.
18. 712. As to the permanent assembly meeting in particular, which involved the occupation of the installations, taking into account the fact that there are significant discrepancies between the accounts given by the complainant organization and the Government as to what actually happened, whether there was a work stoppage and who was responsible for the acts of violence, the Committee requests the Government to take the measures necessary to ensure that an independent investigation is carried out in order to determine the facts, find out whether or not a work stoppage took place and determine who was responsible for the acts of violence. The Committee requests the Government to send its observations in this respect.
19. 713. As to the dismissal of the 49 workers (43 trade union members and six trade union leaders), the Committee requests the Government, taking into account the results of the investigation referred to in the previous paragraph and in the light of the responsibility that the participants in the permanent assembly meeting may have incurred, to re-examine the situation of those individuals dismissed who did not take part in acts of violence.
20. 714. As to the declaration, through Ruling No. 1696 of 2 June 2004, issued by the Ministry of Social Protection, in accordance with article 451 of the Substantive Labour Code, that the permanent assembly meeting was illegal, the Committee notes that, as is shown in previous paragraphs, there are discrepancies between the accounts of events given by the complainant organization and the Government, making it difficult to determine whether a work stoppage occurred or not. On the other hand, the Committee recalls that on several occasions it has stated 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. 522]. In these conditions, the Committee requests the Government to take the necessary measures to amend article 451 of the Substantive Labour Code, in accordance with the principle set forth above.