Interim Report - Report No 342, June 2006

299. The Committee last examined this case at its May-June 2005 meeting [see 337th Report, paras. 637-715]. The Academic Trade Union Association of Lecturers of the University of Pedagogy and Technology of Colombia (ASOPROFE-UPTC) transmitted further information in a communication dated 5 May 2005 and new allegations with communications dated 20 July and 30 September 2005. The Cali Municipal Enterprises Union (SINTRAEMCALI) sent new allegations in communications dated 6 June and 21 October 2005. The Medellín Subdirective of the National Union of Public Employees of the National Service for Training SENA (SINDESENA), sent new allegations in communications dated 2 August 2005 and 23 February 2006.

1. 300. The Government sent its observations in communications dated 14 and 28 September, 25 November and 15 December 2005 and 22 February and 15 May 2006.
2. 301. 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. Previous examination of the case

1. 302. On last examining the case, the Committee made the following recommendations [see 337th Report, para. 715]:
2. (a) As to the allegations presented by SINDESENA, SINDETRASENA and CUT concerning the collective dismissal of trade union leaders and members within the framework of the process of restructuring SENA, 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.
3. (b) As to the dismissal of the eight trade union leaders of SINDESENA, 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.
4. (c) Within the framework of the restructuring process under way within SENA, the Committee requests the Government to take the necessary measures 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.
5. (d) As to the allegations concerning SENA’s refusal to bargain collectively, 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.
6. (e) As to the suppression of trade union leave within SENA, the Committee expects that, in the future, leave will be the subject of negotiations between the trade union organizations and SENA.
7. (f) As to the allegations presented by SINTRAEMCALI concerning the administrative authority’s declaration that the permanent assembly meeting held on EMCALI premises was illegal, a declaration which subsequently led to the dismissal of 43 trade union members and six trade union leaders, the Committee requests the Government:
8. (i) as to the permanent assembly meeting which involved the occupation of the installations, to take the necessary measures to ensure that an independent investigation is carried out 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;
9. (ii) 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 abovementioned investigation 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;
10. (iii) 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 requests the Government to take the measures necessary to amend article 451 of the Substantive Labour Code, in accordance with the principle that responsibility for declaring a strike illegal should lie with an independent body which has the confidence of the parties involved.
11. B. New allegations
12. 303. In its communication dated 6 June 2005, the Cali Municipal Enterprises Union (SINTRAEMCALI) refers to a plan to assassinate various SINTRAEMCALI trade union leaders. These allegations are not reproduced here, as they are being examined within the framework of Case No. 1787. The trade union organization further encloses the decision of the Office of the Official Municipal Representative of Santiago de Cali to exercise prior control with regard to internal disciplinary measures within the Municipal Enterprises of Cali (EMCALI) concerning the occupation of the enterprises on 26 and 27 May 2004.
13. 304. In its communication, dated 21 October 2005, with regard to the Committee’s recommendations, SINTRAEMCALI states that:
14. – The Government has not taken any measures with regard to carrying out an independent inquiry to establish the facts and thus to determine whether a “work stoppage” took place and who was responsible for the acts of violence. On the contrary, the Government has sown the seeds of psychological terror among the workers by initiating 462 disciplinary proceedings against the workers, exercising undue pressure under pain of dismissal for any kind of claim and persecuting workers for discussing the trade union.
15. – Neither has the situation of any of those individuals dismissed been re-examined, as was recommended by the Committee in subparagraph (f)(ii).
16. – As to the amendment of article 451 of the Substantive Labour Code, the Government has taken no action in this regard.
17. 305. Furthermore, the trade union organization encloses copies of communications submitted to it by various public authorities and entities, such as: the Official Representative of Santiago de Cali, the Mayor of Cali, the Governor of Valle del Cauca, the Regional Public Ombudsman, the Municipality of Santiago de Cali, the Secretariat of Governance, Communal Affairs and Law and Order of Cali, the Office of the Official Municipal Representative of Yumbo-Valle, the Municipal Health Secretariat of Yumbo Town Hall and Radio Cali, among others, stating that, during the period of the permanent assembly declared by the workers of EMCALI, there were no reports of any health emergencies nor of any failures in the provision of services. It also encloses a certificate from the Regional Attorney for Valle, stating that no acts of violence were registered as having been committed between 26 and 29 May 2004. The Regional Public Ombudsman of Valle del Cauca made a similar statement upon inspecting EMCALI’s facilities following their evacuation and discovering that no damage had been done.
18. 306. As to the non-renewal of the employment contract of Ms. Nilce Ariza, Director of the Centre for Research, because of the activities of her partner who is the chairperson of the Academic Trade Union Association of Lecturers of the University of Pedagogy and Technology of Colombia (ASOPROFE-UPTC), in accordance with the allegations examined when the case was last examined [see 337th Report, para. 660 onwards], the organization sends a copy of a notarial certificate in which a female student at the university declares having heard the Vice-Rector of the university state that the lecturer, Ms. Nilce Ariza, had been dismissed owing to her partner’s activities. The trade union organization states that the teaching staff selection process for lecturers for the 2004 period, from which she was excluded, went ahead despite not having been properly advertised. According to the complainant organization, no teaching staff selection procedure was held and, therefore, the trade union organization made a criminal complaint against the Vice-Rector, the Dean of Law and the Vice-Dean for having appointed lecturers in 2004 without having held the corresponding merit-based selection procedure, as well as presenting a disciplinary complaint and requesting that a preliminary inquiry be opened within the Office of the Attorney. Moreover, it states that the university initiated disciplinary proceedings against the chairperson of the trade union organization for having lodged a tutela action for the protection of constitutional rights following the dismissal of Ms. Ariza.
19. 307. The trade union organization also refers to the non-renewal of the contract of Ms. Isabel Cristina Ramos who held the post of controller (fiscal) within the trade union. The complainant organization states that, on 25 August 2005, the Third Labour Court of the Circuit of Tunja ordered that Ms. Ramos be reinstated because her trade union immunity had not been lifted prior to her dismissal. However, the university appealed against that decision.
20. 308. In its communications dated 2 August 2005 and 23 February 2006, the Medellín Subdirective of the National Union of Public Employees of the National Service for Training SENA (SINDESENA) alleges that, as a part of a policy aimed at persecuting and threatening SINDESENA trade union leaders, disciplinary proceedings were launched against the entire Regional Subdirective of Magdalena for carrying out trade union activities. The complainant organization adds that Mr. Ricardo Correa Bernal, Vice-Chairperson of the Medellín Subdirective and Secretary of the organization’s national committee was sanctioned for three months.
21. C. The Government’s reply
22. 309. In its communications dated 14 and 28 September, 25 November and 15 December 2005 and 22 February and 15 May 2006, the Government sends its observations on the recommendations made by the Committee upon last examining the case, as well as on the new allegations that have been presented.
23. 310. With regard to subparagraph (a) of the recommendations, the Government reiterates that the process of restructuring SENA was carried out based on Act No. 790 of 2002 “issuing provisions for the continuation of the programme of renewal of the public administration and granting the President of the Republic extraordinary powers”.
24. 311. In light of the above information, SENA, advised by the Administrative Department of the Public Service, carried out technical studies analyzing the legal framework of the entity, reviewing objectives, functions, mission, vision, assessment of provision of services and product quality, the entity’s structure, the specific manual of functions and requirements and analysis of workloads and payroll. Based on these technical studies and once the legal procedure had been completed, on 28 January 2004, institutional restructuring Decrees Nos. 248 “amending Decree No. 1426 of 1998 and Decree No. 3539 of 2003; 249 “amending the structure of the National Service for Training (SENA)”; and 250 “adopting the payroll of the National Service for Training (SENA)” were issued.
25. 312. Decree No. 250 of 28 January 2004 suppressed 1,116 posts, including management, executive, consultant, doctor, dentist, administrative (secretaries and office clerks), operational (auxiliary) and public official posts. In accordance with the abovementioned technical studies, as a part of the new payroll, 542 posts were created at management, executive, consultant, professional and technical levels. However, with the suppression of 1,116 posts and the creation of 542 new posts, 574 posts were lost, giving a current payroll of 6,898 staff which corresponds to the requirements of the entity, according to the technical study that was carried out.
26. 313. As it had not previously been envisaged that all of the 1,116 posts suppressed from the payroll would be cut and as Decree No. 250 of 2004 created 542 new posts which were taken up by some of those individuals whose former posts had been suppressed and others have been appointed as vacancies have arisen, to date only 532 former public employees have been made redundant from the entity owing to the restructuring process. Moreover, the 31 public official posts that were suppressed were all vacant at the time, meaning that no public official (unionized or not) was made redundant from the entity.
27. 314. Of the 532 former public employees, 165 were members of trade unions that were legally formed prior to 28 January 2004 and none of them were trade union leaders.
28. 315. The Government states that the suppression of posts did not in the main affect unionized staff. Of the 2,656 civil servants belonging to SINDESENA at the time that the Decrees announcing the process of restructuring SENA were issued (28 January 2004) only 168 were made redundant, none of whom belonged to any executive, or enjoyed trade union immunity.
29. 316. In the case of the Union of Employees and Workers of SENA (SINDETRASENA), it was founded following the issuing and publication of the Decrees governing the restructuring process affecting SENA (Nos. 248, 249 and 250) of 28 January 2004, and thus it cannot be said that the national government carried out a process of collective dismissal of worker members of SINDETRASENA because, on 28 January 2004, when the Decrees were issued, neither the Government nor SENA knew that this trade union was going to be founded.
30. 317. The Government adds that the Inspector of the Employment, Labour and Social Security Group denied SINDETRASENA leave to register, through resolution No. 002781 which, following an appeal, was upheld by resolution No. 003567 of 16 September 2004 and was again upheld by the Inspector of the Employment, Labour and Social Security Group of the Territorial Directorate for Cundinamarca of the Ministry of Social Protection through resolution No. 004630, of 25 November 2004. The refusal by the Ministry to register the trade union is based on the failure of the supposed trade union to fulfil the legal requirements with regard to its foundation.
31. 318. Initially, 146 public servants belonging to this unrecognized trade union organization were made redundant. Seventy-seven of these are included among those members of SINDESENA who were made redundant because they also belonged to that trade union.
32. 319. The Government states that the matter was examined by the competent legal authorities which, in some cases, denied reinstatement while ordering it in others. Thus, nine of the 146 public servants who were made redundant have been reinstated on the payroll and, to date, 137 members of SINDETRASENA have been made redundant, of whom 74 have already been recorded among those members of SINDESENA who were made redundant.
33. 320. The Government concludes that, to date, with regard to the civil servants made redundant as a consequence of the restructuring process:
34. – a total of 532 public servants have been made redundant as a consequence of the restructuring process;
35. – to date, 165 members of SINDESENA have been made redundant, or 6.2 per cent of the 2,656 members of this trade union organization on 28 January 2004;
36. – as to the members of SINDETRASENA, to date, 137 have been made redundant, 74 of whom have already been recorded among the 165 referred to in the previous subparagraph, because they also belong to SINDESENA. Thus only 63 individuals who are solely members of SINDETRASENA were made redundant through the suppression of their posts.
37. 321. The Government reiterates its previous position, stated on various occasions, that restructuring processes are a consequence of the economic situation of public entities and that the aim is to ensure the viability of the entity and not to weaken the trade union organization. The Government states that, in this case, it should be recalled that, when the civil servants learnt of the restructuring process, they decided to found the trade union organization, perhaps with the aim of obtaining employment stability, forgetting that the aim of trade union organizations is not the employment stability of union leaders but the defence of the rights connected to the trade union organization.
38. 322. As to subparagraph (b) of the recommendations, the Government states that the process of restructuring SENA is now complete, it being impossible to retain the eight posts of the union leaders. Here, the Government refers to article 8 of Decree No. 250 of 2004, in light of which, once the labour judge has authorized the lifting of trade union immunity, the posts are automatically suppressed.
39. 323. As to other possibility of transfer to other similar posts, Act No. 909 of 2004 grants the eight union leaders the right to choose between compensation or transfer to other equivalent posts within the public sector within six months of the date on which they are informed of the suppression of their posts, in keeping with their status as employees with administrative career rights, it being up to each of them to make clear their decision.
40. 324. Of the eight public servants whose trade union immunity is being lifted, to date, seven continue to work at the entity and only one (Mr. Marco Tulio Ramírez Brochero, of the Guajira Regional Office) was made redundant as of 13 May 2005, the First Labour Court of the Circuit of Riohacha having authorized his redundancy in a ruling dated 15 December 2004 which was upheld in the second instance by the Higher Court of the Legal District of Riohacha (Civil, Family and Labour Division) through a ruling handed down on 3 March 2005. In accordance with the internal legislation, the civil servant who had been made redundant was informed that he had the right to be transferred to another equivalent post within the following six months, or to compensation, but as he did not make his decision clear, steps were taken to proceed to pay compensation as stipulated by law.
41. 325. As to subparagraph (c) of the recommendations, the Government states that the process of restructuring SENA is now complete, stating that, according to the Secretary-General of SENA, the administration of SENA opened forums for dialogue and coordination with the trade union organizations that were present within the entity (SINDESENA and SINDETRASENA), in the same way as with the students and other bodies such as the pensioners’ association.
42. 326. As to subparagraph (d) of the recommendations, the Government states that with regard to collective bargaining with the trade unions, SENA has brought its approach into line with the existing constitutional and legal standards, under which collective agreements may only be concluded with the trade union of public officials which, within SENA, is SINDETRASENA. The collective agreement concluded on 25 March 2003 with SINDETRASENA is therefore still in force; with regard to the trade union of public employees, SENA gave due consideration to its requests as stipulated by law.
43. 327. As to the violation of points 15,16, 17, 19 and 21 (points addressing trade union guarantees, such as leave, airline tickets and transport to assemblies) of the agreement concluded by the national government, represented by the Minister of Social Protection, the General Director of SENA and SINDESENA, the Government states that according to the opinion issued by the legal director of SENA, “the agreements concluded between SENA and SINDESENA lack legal validity, being contrary to the Political Constitution and the law”. In the same way, the trade union agreement signed as a consequence of the list of grievances of 21 December 2000 and the agreement signed on 6 August 2002 are contrary to the Constitution. With regard to collective bargaining in labour disputes, article 55 of the Political Constitution stipulates that “The right to collective bargaining to regulate labour relations is guaranteed, with the exceptions stipulated by law … .” Under the Constitution, article 416 of the Substantive Labour Code states that “trade unions of public employees may neither present lists of grievances, nor conclude collective agreements, however, trade unions of public officials possess all the attributes of other workers’ trade unions and their lists of grievances shall be dealt with under the same terms as those of other unions, although they may not call for, or carry out, strike action”. The Constitutional Court declared that this decision might be applied.
44. 328. The Government adds that, in light of the above information and in order to lend scope to the application of the collective agreements concluded between SENA and SINDESENA, through communication No. 00882, addressed to SENA and having transcribed parts of the opinions issued by the Consultation and Civil Service Division of the Council of State on 30 September 2002 (File No. 1471), the Ministry of Social Protection concluded that the collective agreement concluded within SENA should cease to apply in the case of certain aspects which were contrary to the Constitution or the law, based on article 4 of the Political Charter which stipulates that “in any case of incompatibility between the Constitution and the law or any other legal standard, the provisions of the Constitution shall be applied”. Thus, SENA’s legal office considered that, given the constitutional, legal and case law framework, SINDESENA did not have the legal possibility of presenting a list of demands to the administration of the entity. The Government adds that “trade union collective agreements, not having a legal identity owing to the lack of the legal possibility, are unenforceable and ineffective, and, thus, SENA cannot apply and comply with such agreements. However, with regard to the aspects in which the agreement refers to the mission and functions of SENA, the entity is obliged to comply with the law.
45. 329. As to subparagraph (e) regarding trade union leave, it should be pointed out that such leave was not suppressed by SENA, indeed, under the provisions of Act No. 584 of 2000 and Regulatory Decree No. 2813 of the same year and under judicial rulings within the entity trade, union leave of a permanent nature was no longer to be granted. Neither Conventions Nos. 87 nor 98, nor the decisions of the Committee on Freedom of Association allow for the existence of this strange phenomenon that is trade union leave of a permanent nature. The principles of the Committee clearly spell out that, whenever the trade union organization wishes to carry out activities at the workplace during the employers’ normal working hours, the latter’s agreement must first be sought.
46. 330. In accordance with meetings held between SENA and the legal representatives of SINDESENA, authorization was given for the trade union leave necessary for the exercise of trade union activities; in 2004, union leaders were granted 1,025 working days of paid leave, the equivalent of 2.8 years, while in 2005, throughout the whole year 2,439 working days of paid leave were granted, that is to say 6.68 years.
47. 331. As to subparagraphs (f)(i), the Government states that, under article 451 of the Substantive Labour Code, the Ministry of Social Protection is the competent body with regard to investigating and determining the illegality of a work stoppage, based on the Law and the Political Constitution, as set out in resolution No. 1696 of 2 June 2004. The Government adds that Conventions Nos. 87 and 98 do not establish that the legality or illegality of a work stoppage may not be determined by the Ministry in its role as competent government body. Given that the Government is responsible for compliance with Conventions, there is no reason why it should not adopt the decision of the Ministry. The Government recognizes the importance of the Committee’s observations and accepts that the Ministry must enjoy independence when deciding on the illegal nature of the stoppage, given that it should limit itself to objectively establishing the situation. This independence is guaranteed, both by the legal framework governing the civil servants of the Ministry and their conduct and by the legal proceeding open to the workers to challenge before the courts any decisions taken by the Ministry.
48. 332. The Government also states that, in its ruling, the Constitutional Court states that none of the dismissed workers objected to being linked to the stoppage, nor did they deny that they had participated in that action.
49. 333. The Government states that the Ministry not only based its decision on the known facts, rather, in order to guarantee due process and the right to a defence, administrative civil servants of the Territorial Directorate of Valle del Cauca of the Ministry of Social Protection on two occasions carried out visits; on the first occasion the entries to the entity were blocked and, on the second occasion, they discovered that no services were being provided to the public.
50. 334. The intervention by the Ministry in the work stoppage is aimed at avoiding the dismissal of those who had merely suspended the service, prevented from working more by the circumstances surrounding the stoppage than by a desire to take part in the stoppage, on the condition that upon learning that the stoppage had been declared illegal, they did not continue to participate in this action.
51. 335. With regard to the acts of violence, the Government states that the Office of the Public Prosecutor (the competent body in determining the level of responsibility of workers having participated in acts of violence, which are not covered by Conventions Nos. 87 and 98) was made aware of the situation and was informed of the situation. The legislation stipulates the legal mechanisms for challenging the Ministry’s decision, such as the action for annulment before the administrative judicial authority, which is the competent authority for checking the legality of acts reported by public entities and legal proceedings before the labour courts, the competent body for verifying the legality of the dismissals.
52. 336. As to subparagraph (f)(ii), the Government states that the right to defence and due process of the workers was guaranteed because, in accordance with the provisions of article 2 of resolution No. 001696, in order to impose sanctions on those having participated in a collective work stoppage that has been declared illegal, the corresponding disciplinary procedure must be followed. The Municipal Enterprises of Cali (EMCALI) complied with this requirement.
53. 337. As to subparagraph (f)(iii), although the Ministry of Social Protection forms part of the Government, this does not mean that it is biased in its actions. As has previously been pointed out, the Ministry acts in accordance with the internal legislation and moreover, in accordance with the ruling of the Supreme Court of Justice, Labour Appeals Division, of 26 May 1980: “The Ministry intervenes to prevent abuses of the employer during a dispute but not to legalize dismissals, just cause for which must be demonstrated before the labour courts. The Ministry may prevent dismissal in one case but leave the employer free to proceed to dismiss other individuals. However, should the employer decide to proceed with a dismissal, he/she will be responsible and must demonstrate just cause in the ordinary labour courts, if necessary.”
54. 338. The Government states that, in response to the present recommendations, EMCALI stated that in this case it has been proved that Cali Municipal Enterprises Union’s (SINTRAEMCALI) allegations do not constitute a violation of the exercise of trade union rights and that the complainant has not presented evidence supporting its claims. Furthermore, SINTRAEMCALI has initiated each and every one of the legal procedures at its disposal under Colombian legislation. Moreover, EMCALI EICE ESP followed the relevant legal procedure in order to determine that the violent takeover of the administrative facilities of the enterprise, which gave rise to a work stoppage, was illegal and openly unconstitutional, as the takeover affected an enterprise that provides essential public domestic services.
55. 339. The Government states that, in light of the events in question, the trade union organization lodged a tutela action for the protection of constitutional rights in order to avoid the application of resolution No. 1696 of 2 June 2004, and article 450, in light of which the workers would be dismissed and the legal personality of the trade union cancelled. The judicial authority decided, in the first instance, to grant tutela regarding the right to form trade unions in order to ensure that the legal personality of SINTRAEMCALI was not cancelled. However, the judicial authority rejected the request for tutela with regard to the right to work and preventing the dismissals, on the grounds that the dismissals had already taken place. The workers were therefore entitled to make use of the normal legal channels in order to request that the dismissals be reversed. The trade union organization challenged this legal decision, but it was upheld in the second instance. Finally, the Constitutional Court overturned the decision handed down in the first instance that had granted tutela regarding the right to form trade unions and upheld the decisions refusing the other requests for tutela, rejecting definitively all the requests made for tutela. The Government adds that the trade union organization initiated an action for annulment and the re-establishment of rights before the Council of State, against resolution No. 1696 of 2 June 2004, in order to determine whether the events that took place led to a work stoppage and, if this was not the case, to ensure that the rights allegedly violated by EMCALI EICE EXP were re-established.
56. 340. The Government states that, in light of the fact that the events clearly took place and led to a work stoppage, the enterprise is unable to carry out an independent inquiry for administrative reasons. Despite this, the enterprise proceeded to carry out a new inquiry in order to satisfy the demands of the ILO, reviewing the copies of the videos filmed during the work stoppage, confirming the occurrence of a work stoppage and identifying those who participated in that action.
57. 341. As to the allegations presented by ASOPROFE-UPTC, with regard to the non-renewal of the contract of Ms. Isabel Cristina Ramos, fiscal of the trade union organization, despite the reinstatement order issued by the Third Labour Court of the Circuit of Tunja on 25 August 2005, on the grounds that her trade union immunity had not been lifted, the Government states that the trade union organization bases its denouncement on a tutela award which, in the first instance, ordered the reinstatement of Ms. Isabel Cristina Ramos, an ASOPROFE-UPTC fiscal. The award was appealed against by the University of Pedagogy and Technology of Colombia (UPTC). The High Court of the Judicial District of Tunja, Labour Division ruled that the amparo (enforcement of constitutional rights) mechanism was inappropriate, owing to the fact that the trade union leader was not linked to the university by an employment contract, as was claimed in her tutela appeal, and therefore did not benefit from prior notification regarding renewal of her contract. However, under resolution No. 0904 of 16 February 2004, she was appointed from that date until 16 December of that year to the post of temporary full-time lecturer. Moreover, although the trade union leader was dismissed despite her trade union immunity, according to the ruling, she may make use of the legal mechanism stipulated in article 118 of the Procedural Labour and Social Security Code; therefore, in the case of the trade union leader there was no evidence of irreparable harm, the legal basis of tutela, and therefore her appeal was rejected.
58. 342. The Government adds that the trade union organization did not turn to the ordinary labour courts, the competent body with regard to events related to the dismissal of workers with trade union immunity. As to the reference to the Termination of Employment Convention, 1982 (No. 158), the Government refers to the statements previously made by the Committee to the effect that, the Committee limits itself to commenting on violations of ILO Conventions with regard to the freedom of association and that it is not within its remit to comment on the matter of the breaking of employment contracts through dismissal, commenting, rather, when the dismissal system contains elements of anti-union discrimination.
59. 343. As to the allegations presented by ASOPROFE-UPTC, with regard to Ms. Nilce Ariza, the Government refers to the information provided by the university stating that Mr. Luis Bernardo Díaz Gamboa, chairperson of the trade union and partner of Ms. Nilce Ariza, has been a full-time university lecturer since 2003. As a result, he is covered by Act No. 30 of 1992, under which he is a public employee but is not subject to free appointment and revocation. Furthermore, in accordance with article 39 of Decree No. 196 of 1971, as a public servant he may not practice as a lawyer, in particular he may not litigate against the nation, the district or the municipality. However, Mr. Díaz Gamboa agreed to accept the power granted by Ms. Nilce Ariza Barboza to present the tutela action. This being a disciplinary matter, the legal office informed the dean of the university who referred the matter to the Attorney-General of the Nation. The Government states that, in his role as a civil servant, Mr. Díaz Gamboa is accused of having committed a fault because of the ban on practicing as a lawyer and not because of his role as chairperson of the trade union.
60. 344. As to the matter of the selection of teaching staff, the university reiterates that temporary teaching staff members are neither public employees nor public officials, and the university, as an autonomous entity, in accordance with resolution No. 057 of 2003, held a public selection procedure. Ms. Ariza simply did not meet the requirements of that procedure.

D. The Committee’s conclusions

1. 345. The Committee notes the new allegations submitted by the Cali Municipal Enterprises Union (SINTRAEMCALI), the National Union of Public Employees of the National Service for Training SENA (SINDESENA) and the Academic Trade Union Association of Lecturers of the university of Pedagogy and Technology of Colombia (ASOPROFE-UPTC). The Committee recalls that the present complaint refers to: (1) the process of restructuring and subsequent dismissal of members and leaders of SINDESENA; (2) the declaration by the Ministry of Social Protection that a work stoppage on 26 and 27 May 2004 in Cali Municipal Enterprises (EMCALI) by SINTRAEMCALI was illegal, a declaration which subsequently led to the dismissal of 43 trade union members and six trade union leaders; and (3) the non-renewal of the employment contract of two lecturers at the University of Pedagogy and Technology of Colombia (UPTC), despite the fact that they enjoyed trade union immunity.
2. Restructuring of the National Service
3. for Training (SENA)
4. 346. As to the allegations concerning the collective dismissal of trade union leaders and members within the framework of a restructuring process within SENA, the Committee recalls that in order to be able to reach its conclusions based on all the facts, it requested 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. The Committee notes the information supplied by the Government to the effect that Decree No. 250 of 28 January 2004 ordered the suppression of 1,116 posts within SENA and that to date, only 532 former public employees have been made redundant. The Committee notes that of these 532 former public employees, 165 were members of SINDESENA out of a total of 2,656 civil servants belonging to this trade union. Moreover, the restructuring also resulted in the dismissal of 146 public servants belonging to the Union of Employees and Workers of SENA (SINDETRASENA). Of these 146 workers, 77 among those members of SINDESENA who were included were made redundant because they also belonged to that trade union.
5. 347. As to these 146 workers, the Committee notes that, following the legal proceedings brought by the persons concerned, the legal authorities ordered the reinstatement of nine of the aforementioned workers, giving a final total of 137 dismissed SINDETRASENA members, of whom 74 have already been recorded among those members of SINDESENA who were made redundant, with the result that only 63 SINDETRASENA workers have been affected by the restructuring process. In conclusion, the dismissals affected 165 workers belonging to SINDESENA, 74 of whom were also members of SINDETRASENA, with a further 63 workers belonging exclusively to the latter organization.
6. 348. The Committee therefore observes, on the basis of the information supplied by the Government, that the restructuring process undertaken within SENA was general in scope and affected all workers, including those belonging to trade union organizations, but without any indication that the aim of the restructuring has been to affect or weaken the trade unions. In this regard, the Committee recalls that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions. In any case, the Committee can only regret that in the rationalization and staff reduction process, the Government did not consult or try to reach an agreement with the trade union organizations. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 935.]
7. 349. In this regard, the Committee recalls that in subparagraph (c) of its recommendations, it requested the Government to carry out wide-ranging consultations with SINDESENA prior to continuing with dismissal proceedings, and notes that, according to the Government, the restructuring process has already been completed but that the administration of SENA opened forums for dialogue and coordination with the trade union organizations, as well as students and the pensioners’ association present within the entity.
8. 350. As to subparagraph (b) of the recommendations concerning the dismissal of the eight SINDESENA union leaders, the Committee recalls that, in its previous examination of the case, it requested the Government to take the necessary measures to retain the posts of the trade union leaders, in order that they could carry out their duties during the restructuring process and, should it prove impossible to retain these posts, to transfer them to similar posts. The Committee notes that, according to the Government, the process of restructuring within SENA is now complete, making it impossible to retain the eight posts of the union leaders, and that once the labour judge has authorized the lifting of trade union immunity, the posts will be automatically suppressed. At present, of the eight union leaders, only one has been stripped of trade union immunity, whilst the others remain in their posts. At the same time, the Committee notes the Government’s reply stating that, in accordance with Act No. 909 of 2004 and its regulatory standards, once the union immunity of the eight trade union leaders has been lifted, these individuals will be given the right to choose between compensation or transfer to other equivalent posts within the public sector within six months of the date on which they are informed of the suppression of their posts, in keeping with their status as employees with administrative career rights, it being up to each of them to make clear their decision. In the case of the union leader whose union immunity has already been lifted, the Committee notes that he was made redundant as of 13 May 2005 and informed of his right to choose either to transfer to another equivalent post within the following six months or compensation; but as he did not make his decision clear, steps were taken to proceed to pay compensation, as stipulated by law. The Committee requests the Government to keep it informed of developments in the circumstances of the other seven union leaders.
9. 351. As to subparagraph (d) of the recommendations concerning SENA’s refusal to bargain collectively, the Committee recalls that in its previous examination of the case, it requested 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 could enjoy the right to collective bargaining. The Committee notes the Government’s reiteration of the fact that, in accordance with existing constitutional and legal standards, public officials may not present lists of grievances and as such may not bargain collectively, being limited solely to the presentation of respectful petitions. At the same time, the Committee notes that, according to the Government, the opinion issued by the legal director of SENA means that the agreements concluded between SENA and SINDESENA lack legal validity. The Committee notes that the Government draws on the above to explain the alleged violation of points 15, 16, 17, 19 and 21 (points addressing trade union guarantees, such as leave, airline tickets and transport to assemblies) of the agreement concluded by the Minister of Social Protection and the General Director of SENA and SINDESENA, in addition to the trade union agreement signed as a consequence of the list of grievances of 21 December 2000 and the agreement signed on 6 August 2002.
10. 352. In this regard, the Committee must firstly recall that the principle of good faith must prevail during any negotiation process undertaken and that once agreements have been entered into, the parties are obliged to comply with them [see Digest, op. cit., para. 818]. At the same time, the Committee recalls, as on other occasions in recent years when presented with similar allegations against the Government of Colombia, that whilst certain categories of civil servants should already have been enjoying the right to bargain collectively in accordance with Convention No. 98, recognition of this right has been extended to cover all civil servants since the ratification by Colombia of Convention No. 154 on 8 December 2000 [see 328th Report, Case No. 2068, para. 215, and 338th Report, Case No. 2363, para. 735 (Colombia)]. In these circumstances, recalling that special modalities of application may be established for collective bargaining within the public administration, but bearing in mind that collective bargaining cannot be considered to exist merely on the basis of the presentation of respectful petitions, the Committee once again requests the Government to take the necessary measures to ensure that, in consultation with the trade union organizations concerned, legislation be amended without delay in order to bring it into line with the Conventions ratified by Colombia. The Committee requests the Government to keep it informed of any developments in this regard.
11. 353. As to subparagraph (e) of the recommendations concerning SENA’s refusal to grant trade union leave, the Committee notes that, according to the information provided by the Government relating to the provisions of Act No. 584 of 2000 and Regulatory Decree No. 2813 of the same year, within the entity, union leave of a permanent nature was no longer to be granted. The Committee notes that, despite this, the Government supplies information on all union leave granted during 2004 and 2005, following meetings between SENA and the legal representatives of SINDESENA. The Committee recalls that “while account should be taken of the characteristics of the industrial relations system of the country, and while the granting of such facilities should not impair the efficient operation of the undertaking concerned”, Paragraph 10(1) of the Workers’ Representatives Recommendation, 1971 (No. 143), provides that workers’ representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions. Paragraph 10(2) also specifies that, while workers’ representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld [see Digest, op. cit., para. 952]. The Committee therefore expects that the Government will continue to grant the union leave necessary for the exercise of trade union activities, in consultation with the organizations concerned.
12. 354. As to the new allegations presented by the complainant organization concerning persecution and threats towards SINDESENA, trade union leaders and the launch of disciplinary proceedings against the entire Regional Subdirective of Magdalena for carrying out trade union activities and the three-month sanctions imposed on Mr. Ricardo Correa Bernal, Vice-Chairperson of the Medellín Subdirective and Secretary of the organization’s national committee, the Committee regrets that the Government has not sent its observations on this matter and requests it to do so without delay.
13. Cali Municipal Enterprises (EMCALI)
14. 355. As to subparagraph (f) of the recommendations relating to the allegations concerning the administrative authority’s declaration that the permanent assembly meeting held on EMCALI premises was illegal, a declaration which subsequently led to the dismissal of 43 trade union members and six trade union leaders, the Committee recalls that in its previous examination of the case, it requested the Government: (1) to carry out an independent investigation to determine the facts, find out whether or not a work stoppage took place and determine who was responsible for the acts of violence; (2) taking into account the results of the abovementioned investigation 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; and (3) with regard 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, to take the measures necessary to amend article 451 of the Substantive Labour Code, in accordance with the principle that responsibility for declaring a strike illegal should lie with an independent body which has the confidence of the parties involved.
15. 356. As to the launch of an independent investigation to determine the facts, find out whether or not a work stoppage took place and determine responsibility, the Committee notes that according to the complainant organization, the Government has not undertaken an independent investigation and has instead initiated 462 sets of disciplinary proceedings against workers, subjecting them to undue pressure, with the threat of dismissal for discussing the trade union. The Committee also notes that the complainant organization encloses copies of communications submitted to it by various public authorities and entities stating that, during the period of the permanent assembly declared by the workers of EMCALI, there were no reports of any health emergencies nor of any failures in the provision of services, together with a certificate from the Regional Attorney for Valle stating that no acts of violence were registered between 26 and 29 May 2004, and an attestation from the Regional Public Ombudsman of Valle del Cauca stating that upon inspection of EMCALI’s facilities following their evacuation, no damage had been done.
16. 357. The Committee also notes that, according to the Government, under article 451 of the Substantive Labour Code, the Ministry of Social Protection is the competent body charged with undertaking independent investigations and determining the illegality of any work stoppage. The Committee notes the additional reply from the Government to the effect that Convention No. 87 does not refer to the proscription on investigations being carried out by this Ministry, that the Ministry based its decision on the known facts, and that administrative civil servants of the Territorial Directorate of Valle del Cauca of the Ministry of Social Protection carried out visits to EMCALI on two occasions, finding the entrances to the entity blocked on the first occasion and discovering on the second that no services were being provided to the public.
17. 358. At the same time, the Committee notes that the Constitutional Court rejected a number of tutela actions lodged by the complainant organization in order to prevent its legal personality being cancelled and leaders and members being dismissed, but that the trade union organization initiated an action for annulment and the re-establishment of rights before the Council of State, against resolution No. 1696 of 2 June 2004, in order to determine whether the events that took place led to a work stoppage and, if this was not the case, to ensure that the rights of SINTRAEMCALI were re-established. This action is pending.
18. 359. As to the acts of violence, the Committee notes that according to the Government, the Office of the Public Prosecutor (Fiscalia General) was made aware of the situation in order to determine the responsibility of the workers involved in these acts which are not covered by Conventions Nos. 87 and 98.
19. 360. Firstly, as to the statement that a work stoppage had occurred and the ruling by the Ministry of Social Protection that it was illegal, in accordance with article 451 of the Substantive Labour Code, the Committee is of the opinion that responsibility for declaring a strike or work stoppage illegal should lie not with the Government but with an independent body which has the confidence of the parties involved, particularly in those cases where the Government is party to the dispute [see Digest, op. cit. paras. 522 and 523], the judicial authority being best placed to act as an independent authority. In this regard, the Committee regrets that it has to reiterate as it has stated, on a number of occasions, that article 451 of the Substantive Labour Code is not in accordance with the principles of freedom of association [see 337th Report, Case No. 2356, para. 715 and Case No. 2355, para. 631]. This situation is particularly apparent in the present case, involving opposing points of view between the trade union organization and EMCALI, a public enterprise. Given these circumstances, the Committee requests the Government to take the necessary measures without delay to amend article 451 of the Substantive Labour Code, in accordance with the principle that responsibility for declaring a strike illegal should lie with an independent body which has the confidence of the parties involved. The Committee requests the Government to keep it informed in this regard.
20. 361. Secondly, the Committee observes that an action is currently pending before the Council of State, the highest judicial authority to examine decisions of the administrative authorities, for annulment and the re-establishment of rights, against resolution No. 1696 of 2 June 2004, in order to determine whether the events that took place led to a work stoppage and, if this was not the case, to ensure that the rights allegedly violated by EMCALI EICE ESP are re-established. Given these circumstances, with regard to the finding that a work stoppage had occurred and the declaration by the Ministry of Social Protection that it was illegal, the Committee requests the Government to inform it of the final outcome of this action and trusts that the State Council will take into account the principles set forth in the preceding paragraphs concerning the undertaking of an independent investigation and the declaration of a work stoppage by an independent authority.
21. 362. As to the dismissal of the 43 union members and six union leaders, the Committee notes that according to information from SINTRAEMCALI, none of the dismissal decisions has been re-examined. The Committee also notes that according to the Government, the workers’ right to defence and due process was guaranteed, since disciplinary proceedings have been launched in accordance with the provisions of article 2 of resolution No. 001696 prior to sanctions being imposed on those who participated in a collective work stoppage that has been declared illegal. Furthermore, pursuant to the Committee’s earlier recommendation that the dismissals be reviewed, the Committee notes that the enterprise proceeded to carry out a new inquiry in order to satisfy the demands of the ILO, reviewing the copies of the videos filmed during the work stoppage, confirming the occurrence of a work stoppage and identifying those who participated in that action. Firstly, the Committee observes that the enterprise does not have the status of independent authority to enable it to undertake the requested investigation. Secondly, the Committee observes that the dismissal of 49 SINTRAEMCALI workers was the result of their alleged participation in a work stoppage declared illegal by the Ministry of Social Protection, a declaration currently being examined by the State Council as set forth in the previous paragraph. Given these circumstances, the Committee requests the Government to re-examine the dismissal situation in the light of the decision of the State Council, once this has been handed down, and requests the Government to keep it informed of any progress in this regard.
22. 363. As to the investigation launched by the Public Prosecutor into the acts of violence, the Committee requests the Government to keep it informed of the outcome of this investigation.
23. 364. As to the most recent allegations presented by SINTRAEMCALI concerning the launch of 462 sets of disciplinary proceedings and the pressure exerted on workers not to discuss the trade union or risk dismissal, the Committee, recalling that “no person should be dismissed or prejudiced in his or her employment by reason of legitimate trade union activities” [see Digest, op. cit., para. 696], requests the Government to take the necessary measures to guarantee EMCALI workers the ability to exercise their trade union rights freely and without fear of reprisals, to carry out an independent investigation in which both parties are confident into the pressure, threats and disciplinary proceedings to which workers were subject, and to keep it informed in this regard.
24. University of Pedagogy and Technology
25. of Colombia (UPTC)
26. 365. As to the allegations presented by the Academic Trade Union Association of Lecturers of the University of Pedagogy and Technology of Colombia (ASOPROFE-UPTC) concerning the non-renewal of the employment contracts of the lecturers Ms. Nilce Ariza [see 337th Report, para. 660 onwards] and Ms. Isabel Cristina Ramos, despite the fact that they were trade union leaders, the Committee notes with regard to Ms. Ariza that the complainant organization encloses a copy of the notarial certificate in which a female student at the university declares having heard the Vice-Rector of the university state that, the lecturer, Ms. Nilce Ariza, had been dismissed due to the activities of her partner, the chairperson of the trade union organization. At the same time, the Committee notes that according to the trade union organization, the selection process for lecturers for the 2004 period, from which she was excluded, went ahead despite not having been properly advertised and without the corresponding merit-based selection procedure having taken place, giving rise to a number of administrative and legal actions against the university and its authorities by the trade union organization. The Committee also notes that, according to the complainant organization, the university initiated disciplinary proceedings against the chairperson of the trade union organization for having lodged a tutela action following the dismissal of Ms. Ariza.
27. 366. The Committee notes that, according to the information supplied to the Government by the university, Mr. Luis Bernardo Díaz Gamboa, chairperson of the trade union and partner of Ms. Nilce Ariza, has been a full-time university lecturer since 2003. As a result of this and in accordance with article 39 of Decree No. 196 of 1971, as a public servant, he may not practice as a lawyer and in particular may not litigate against the nation, the district or the municipality. Thus, owing to the fact that he presented a tutela on behalf of Ms. Ariza, which constitutes a disciplinary matter, the legal office informed the dean of the university, who referred the matter to the Attorney-General of the nation. As to the matter of the selection of teaching staff, the university reiterates that temporary teaching staff members are neither public employees nor public officials and the university, as an autonomous entity, in accordance with resolution No. 057 of 2003, held a public selection procedure. Ms. Ariza simply did not meet the requirements of that procedure.
28. 367. The Committee recalls that in its previous examination of the case, it considered that Ms. Ariza had not been hired for the year 2004 because of her refusal to present her candidature as she had done on previous occasions on which she had been employed, and that, with regard to her trade union immunity as a member of the executive committee, the very nature of the fixed-term temporary lectureship contract dictated that it would expire once the term had concluded, and that under these circumstances, it was inappropriate to request the lifting of trade union immunity because the intention was not to dismiss a worker. Rather, the contract binding worker to employer had come to an end. [see 337th Report, para. 708].
29. 368. However, the Committee observes that according to the new allegations, no selection procedure for the renewal of teaching posts was held in 2004 and the start of the procedure was never advertised. At the same time, the Committee observes that according to the statement made by a female student, the Vice-Rector is alleged to have stated that Ms. Ariza’s contract would not be renewed because of her links with the chairperson of the trade union. Given this situation, the Committee requests the Government to take the necessary measures to carry out an independent investigation in order to establish whether the renewal of Ms. Ariza’s contract was refused on anti-union grounds and to inform the Committee of the outcome.
30. 369. In addition, the Committee observes that proceedings have been initiated against the chairperson of the trade union, Mr. Luis Bernardo Díaz Gamboa, on the grounds that he represented Ms. Ariza despite his status as a public servant barring him from bringing legal proceedings as a lawyer. The Committee observes that Mr. Díaz Gamboa did not provide representation as a lawyer but rather in his capacity as chairperson of the trade union to which Ms. Ariza belongs. Consequently, the Committee requests the Government to take measures to revoke the proceedings launched and to guarantee fully Mr. Gamboa’s right to carry out his trade union activities.
31. 370. As to the case of the lecturer, Ms. Isabel Cristina Ramos, controller of the trade union organization, the Committee observes that her contract was not renewed despite the reinstatement order issued by the Third Labour Court of the Circuit of Tunja on 25 August 2005, on the grounds that her trade union immunity had not been lifted prior to dismissal. The Committee notes that the Government, for its part, states that the District High Court revoked the previous finding, ruling that the amparo (enforcement of constitutional rights) mechanism was inappropriate, owing to the fact that the trade union leader was not linked to the university by an employment contract, as was claimed in her tutela appeal, but rather had been appointed, under resolution No. 0904 of 16 February 2004, from that date until 16 December of the same year, to the post of temporary full-time lecturer. Moreover, although the trade union leader was dismissed despite her trade union immunity, according to the ruling, she may make use of the legal mechanism stipulated in article 118 of the Procedural Labour and Social Security Code. The Government adds that the trade union organization did not turn to the ordinary labour courts, the competent body with regard to events related to the dismissal of workers with trade union immunity.
32. 371. In this regard, the Committee refers to its observation in its previous examination of the case that fixed-term contracts such as those of temporary lecturers are ended once the term has concluded without the need to request judicial authorization for the lifting of trade union immunity, since the very nature of the fixed-term temporary lectureship contract dictates that it will expire once the term has concluded and that, given these circumstances, it is inappropriate to request the lifting of trade union immunity because the intention is not to dismiss a worker. Rather, the contract binding worker to employer has come to an end. Bearing this in mind, unless the complainant organization can supply additional evidence in support of the alleged anti-union nature of the non-renewal of the contract, the Committee will not proceed with the examination of these allegations.