Interim Report - Report No 234, June 1984

1. 623. The complaint appears in a communication of the National Federation of Public Workers (FENALTRASE) dated 10 November 1983. The Government sent its observations in communications dated 21 December 1983, 7 and 22 February, 4 April and 4 May 1984.
2. 624. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 625. The complainant alleges that in August 1983, following denunciations made by the Trade Union of the Customs Revolving Fund concerning certain anomalies, the management of the Fund dismissed 26 workers who were members of the union, including its president, vice-president and a member of its executive board.
2. 626. The complainant also alleges the dismissal of José Rodríguez, president of the Public Employees' Union of the Territorial Credit Institute, the dismissal of the presidents of the Santander and La Guajira branches of the National Social Security Fund Trade Union, and Carlos Sarmiento, secretary of the National Savings Fund Trade Union.
3. 627. The complainant alleges furthermore that the president of the trade union in the District Employees' Housing Fund (FAVIDI), Mrs. Maria Elvira Caipa, was dismissed and that after a heated debate in the Council of Bogotá, the director of the Fund agreed to reinstate her. However, the appointment which she subsequently received was for a down-graded position with lower wages.
4. 628. Finally, the complainant alleges that in 1981, during a discussion of the list of employee demands, and following a resolution from the commander of the Fourth Brigade at the request of the management of the Public Undertakings of Medellín, Hernán Sánchez, Guillermo Osorio and Francisco Balbín Arango (respectively president, secretary and treasurer of the trade union) were arrested and subsequently sentenced to 90 days' imprisonment. As a result of the above-mentioned resolution, proceedings were initiated to lift the trade union protection which they enjoyed. One year later, the court ruled against these leaders who were dismissed by the management.

B. The Government's reply

1. 629. The Government states that the dismissals in the Customs Revolving Fund in 1983 were made after full consultation with the trade union organisation and were exclusively the result of the need to ensure satisfactory service and honesty on the part of officials.
   • The same measures affected, moreover, public employees without established positions in the administrative service -or protected by any special provisions. Both the trade union of the Fund as well as FENALTRASE have permanent access to the director of the Fund and the opportunity to discuss matters of common interest.
2. 630. With regard to the dismissal of Mrs. Maria Elvira Caipa, the Government points out that she was a non-established employee and that her reinstatement in the District Employees' Housing Fund was not the result of any court ruling but of a simple non-official request. However, given her refusal to accept the new appointment, which was made in the light of the economic and administrative circumstances of the Fund, and her decision to take legal proceedings, the matter now falls within the jurisdiction of the administrative disputes authorities.
3. 631. The Government points out that the dismissal of Carlos Sarmiento was made on 18 November 1982 pursuant to a resolution issued regarding non-established public employees in the administrative service. To date, no request has been made to nullify the above-mentioned administrative act. On the contrary, the Office of the Procurator General of the Nation is carrying out an investigation against Mr. Sarmiento for alleged abnormalities in the exercise of his functions.
4. 632. In the same way, the Government states that the separation from service in the Territorial Credit Institute of Mr. José Rodríguez, occurred on 2 March 1983 on which date the Institute was unaware of his relationship with the trade union since the communication on its establishment and the appointment of Mr. Rodriguez as president was received by the Division of Human Relations of the institute on 3 May 1983. The Government points out that legally, if a worker desires to enjoy trade union protection from the founding of a trade union, he must duly inform the employer of the statutes of the union and the names of its office-holders.
5. 633. Finally, the Government states in general that the allegations refer to public service employees and that there exists a provision in administrative law which permits the removal of officers for reasons of reorganisation in the service, subject to compliance with the legal provisions (for example, compensation). If an officer, whose employment with the public administration is terminated, does not agree with the reasons invoked, he is entitled to appeal to the administrative disputes bodies (courts and Council of State) which will be the final authority. In this case, if the complainant considers that the legal procedure was not observed, he must prove this before the courts and only the failure by the employer - in this case the public administration - to respect the ruling of the jurisdictional body may be invoked as an act of trade union persecution. The Government denies that this has occurred and states that there is no proof whatsoever to support such a statement, that there has been no infringement of regulations and that the complainant has not demonstrated that all the internal legal procedures have been exhausted.

C. The Committee's conclusions

1. 634. With regard to the dismissal of 23 members and three leaders of the Customs Revolving Fund Trade Union in August 1983, the Committee notes the statements of the Government, and in particular that these measures were taken in full consultation with the trade union organisation, that they also affected public employees without established positions and were exclusively the result of the need to ensure satisfactory service and honesty on the part of officials.
   • The Committee observes, however, that according to the complainant organisation these dismissals were the result of denunciations made by, the trade union. In these circumstances, given the discrepancies between the complainant's version of the facts and that of the Government, the Committee requests the Government to specify the concrete reasons for the dismissal of 23 members and three trade union leaders (president, secretary and treasurer) of the Trade Union of the Customs Revolving Fund so that a decision can be reached based on a full knowledge of the facts. However, the Committee would like to point out at this juncture that the exercise of the power to freely remove public employees from their posts should in no instance be motivated by the trade union functions or activities of the persons affected by such measures.
2. 635. The Committee notes, moreover, that the allegedly. down-graded position which the trade union leader, Maria Elvira Caipa, would have had following her reinstatement in the District Employees' Housing Fund will be examined by the administrative disputes authority. The Committee also notes that the leader of the National Savings Fund Trade Union, Carlos Alberto Sarmiento, has not lodged a, request for reinstatement and that, on the contrary, a judicial; inquiry is being held against him for alleged abnormalities in the exercise of his functions. The Committee also notes that the Territorial Credit Institute was unaware of the existence of a trade union in the said body or of the status of José Rodriguez as trade union leader since the trade union informed the Institute of both events one month after the dismissal of Mr. Rodriguez.
3. 636. The Committee notes, furthermore, that the Government has not sent observations on the dismissal of the president of the Santander and La Guajira branch offices of the National Social Security Fund Trade Union or the dismissal of Hernán Sánchez, Guillermo Osorio and Francisco Balbín Arango, respectively president, secretary and treasurer of the Employees' Union of Public Undertakings of Medellín. The Committee requests the Government to reply to these allegations.
4. 637. In general, the Committee would like to draw to the Government's attention the fact that the complainant organisation has not specified whether the different trade union leaders dismissed have made use of the internal appeals procedures is not sufficient to invalidate the allegations. Although the exhaustive use of all national procedures of redress and their results are elements which certainly should be taken into consideration and which may be invoked by the Government, the Committee has always believed that in view of the nature of its responsibilities it cannot consider itself bound by any rule that national procedures of redress must be exhausted [see, for example, 78th Report, Case No. 294 (Spain), para. 136; 190th Report, Cases Nos. 871 and 907 (Colombia), para. 262; and 211th Report, Cases Nos. 1035 and 1050 (India), para. 114].