Allegations: The complainant organizations allege the anti-union nature of a bill
to reform the National Correctional and Prison Institute (INPEC), the interference of the
public authorities and INPEC in the creation of the Confederation of Prison Workers (UTP)
trade union, the irregular transfer of union dues from two other trade unions to the
abovementioned union, and anti-union transfers of trade union officials
- 80. The complaints are contained in a communication dated 28 May 2012,
submitted by the Colombian Federation of Correctional and Prison System Workers
(FECOSPEC), and in a communication dated 20 June 2013, from the Union of Guards of the
National Correctional and Prison Institute (SIGGINPEC).
- 81. The Government sent its observations in a communication dated 22
August 2013.
- 82. Colombia has ratified the Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention,
1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).
A. The complainants’ allegations
A. The complainants’ allegations- 83. Firstly, FECOSPEC alleges that a bill submitted on 11 April 2011 to
grant prison guards civil authority status has anti-union motives given that section
12.1 of Act No. 584 of 2000 excludes persons holding positions of civil authority from
trade union benefiting from immunity. The complainant indicates that the aforementioned
bill was not sent to the International Labour Standards Department of the ILO in
violation of the agreement reached in March 2010 during the preliminary contacts mission
carried out by the ILO, when FECOSPEC agreed to withdraw its complaint under Case No.
2617 before the Committee on Freedom of Association.
- 84. FECOSPEC also alleges that the Trade Union Association of Employees
of the National Correctional and Prison Institute (ASEINPEC) interfered in the affairs
of the other trade unions of the National Correctional and Prison Institute (INPEC) by
convening, on 18 October 2011, a national assembly of INPEC union presidents, with the
support of the Ministry of Social Security and INPEC, to reach a trade union agreement,
in the absence of which, according to the President of the executive board of ASEINPEC,
the President of the Republic would close INPEC and establish a new body. In view of the
above, FECOSPEC filed criminal proceedings against the President of the executive
committee of ASEINPEC.
- 85. In addition, FECOSPEC indicates that, with the active participation
and the interference of the Colombian Government in trade union affairs, the President
of the executive committee of ASEINPEC created the Union of Prison Workers (UTP). This
trade union succeeded in taking hold of large sectors of other INPEC trade unions,
including FECOSPEC officials and activists. It was, however, rejected by FECOSPEC and
other independent organizations. In an official letter of 3 May 2012, the
Director-General of INPEC, Brigadier-General Gustavo Adolfo Ricaurte Tapia, consented to
an irregular request from the UTP to receive the transfer of the union dues of more than
6,000 members of two other active trade unions (SIGGINPEC and ASEINPEC), against the
individual wishes of most members and without the general assembly approving the merger
or incorporation of these two trade unions within the new union.
- 86. In its communication dated 20 June 2013, SIGGINPEC, which is a member
of FECOSPEC, adds the following information regarding the transfer of trade union dues
to the UTP by the INPEC management: (i) the Ministry of Labour issued an unfavourable
opinion, denying the possibility of transferring the resources of the two organizations
to the UTP, and indicating that the “management of the resources of the trade union
shall be governed by decisions taken by its general assembly and the provisions of its
statutes, not allowing for the interference of third parties in such matters”; (ii)
despite the opinion issued by the Ministry of Labour, the Director-General of INPEC
decided to undertake the automatic transfer of more than 2,000 SIGGINPEC members to the
UTP, in non compliance with the statutes of that organization and without requests for
UTP membership, thereby reducing, as of May 2012, the union’s monthly income by more
than 17,340,000 Colombian pesos; (iii) this financial loss dramatically affects the
organizational and operational capacities of SIGGINPEC, which, among other things, can
no longer pay for the services of its in-house lawyers, its permanent secretary or the
rent of its union headquarters office; (iv) on 6 July 2012, a SIGGINPEC member, the
inspector Mr Rafael Pérez Arce, submitted a complaint before the Attorney-General’s
Office against INPEC for ordering his registration with the UTP without his personal
authorization: in a ruling of 8 August 2012, the High Court of Bogotá restored Mr Perez
Arce’s SIGGINPEC membership (the Court considered that the employer had acted
irregularly, especially given that the closure of SIGGINPEC or its merger with the UTP
had not been approved at the union’s plenary meeting, thereby jeopardizing the survival
of SIGGINPEC and disregarding its right to freedom of association); (v) on 20 September
2012, SIGGINPEC submitted a claim to the Director-General of INPEC for the reimbursement
of each of the diverted dues; the claim was rejected despite the favourable opinion
issued by the legal advisor attached to that body; (vi) in June 2013, out of more than
2,000 trade union members, INPEC only acknowledged the SIGGINPEC membership of ten
workers; (vii) a labour dispute was filed before the Ministry of Labour for anti-union
behaviour, to be then shelved under a ruling of April 2013; (viii) an action for the
protection of constitutional rights (tutela proceedings) was filed against the
Director-General of INPEC and against two of his employees, for favouring Mr Milton
Aníbal Ospino, who passes himself off as the general secretary of SIGGINPEC, falsifying
public documents for the transfer of SIGGINPEC members to the UTP; and (ix) those tutela
proceedings were rejected by the 24th Labour Court of Bogotá, considering that there was
no evidence of irreparable harm, whereby annulment and rehabilitation proceedings were
filed before the administrative courts, which will take years to issue their
ruling.
- 87. Lastly, the complainant organizations allege that, faced with
FECOSPEC’s rejection of the UTP, INPEC applied a transfer policy to the following
officials of trade unions that are members of FECOSPEC, omitting in each case to carry
out the procedure to lift their trade union immunity: Mr Carlos Julio Saldaña Carvajal,
counsel to the executive committee of the Trade Union of Employees of the Correctional
and Prison Establishments of Cundinamarca (SINTRAPECUN); Mr Hermes García García,
President of the executive committee of the Trade Union of Prison Guards of Cundinamarca
(SINGCUCUN), all the members of the executive committee of the recently created Female
Trade Union Association of Bogotá Prisons Establishments (ASFECAB) (Ms Maria Stella
Bilbao, Ms Rosalba Parrado Gomez, Ms Stella Gómez Zambrano, Ms Alixon Guatame Cadena, Ms
Martha Patricia León Toloza, Ms Yolanda Acosta Lara, Ms Sabina Ayala Toscano,
Ms Desmyriam Valencia Calvo and Ms Sonia García Ipus); Mr Eivar Daniel Joaqui Alvarado,
the deputy member of the executive committee of the Trade Union of the High and Medium
Security and Prison Establishments of Itagui (SINTRAITAGUI) and Mr Flavio Yamel Morales
Camacho, counsel to the executive committee of the Itagui section of SIGGINPEC.
B. The Government’s reply
B. The Government’s reply- 88. In a communication of 22 August 2013, the Government transmits the
observations made by INPEC regarding the submitted complaint. INPEC indicates that: (i)
Decree No. 4150, of 3 November 2011, which removed INPEC’s administrative functions,
which were transferred to the Prison Services Unit, did not violate freedom of
association rights, as can be seen by the large number of trade union organizations in
the prison sector; neither did it violate the commitments undertaken by INPEC with the
ILO preliminary contacts mission, in March 2010, in relation to the consultation of
bills that will affect trade union interests, given that no bills have been submitted,
let alone any affecting trade union interests; (ii) INPEC indicates that the
institution’s policy is to respect all freedom of association rights and that there are
currently 56 trade union organizations in INPEC; (iii) INPEC has not made any
declarations on the allegations contained in the complaint regarding the actions of the
various trade union organizations in INPEC; (iv) with regard to the transfer of union
dues to the UTP, INPEC proceeded in accordance with the law and the requests received
following the creation of the new trade union organization, the UTP, respecting the
decision taken by minority trade unions not to participate in the proposed procedure;
and (v) regarding the transfer of the alleged trade union officials that were reported
in the complaint, INPEC indicates, on a case by case basis, that the persons transferred
were not trade union officials at the time of their transfer and that they were
transferred to meet the needs of the service. It adds that Mr Saldaña and Mr Garcia
filed tutela proceedings, which were rejected by the courts on the grounds that they
were not trade union officials at the time of transfer.
- 89. In the light of the information provided by INPEC, the Government
states that: (i) the allegations contained in this complaint refer to State
restructuring and that the Committee on Freedom of Association is not, therefore,
competent to hear the complaint; (ii) the transfers were carried out as a result of a
unilateral decision by INPEC, in compliance with the regulations and with a view to
streamlining prison services rather than prejudicing trade union organizations; (iii)
the allegations refer to internal problems between the trade union organizations, which
they should resolve among themselves; and (iv) the Colombian judiciary has examined the
claims made by the complainants and has ruled against them.
C. The Committee’s conclusions
C. The Committee’s conclusions- 90. The Committee observes that this case refers to allegations of
violations of freedom of association due to the submission of a reform bill by INPEC;
interference by the public authorities and by INPEC in the creation of the UTP and in
the irregular transfer of the trade union dues of two other trade unions to the UTP; and
allegations of anti-union transfers of union officials.
- 91. The Committee takes note of the Government’s reply which contains the
information provided by INPEC and according to which: (i) the structure of INPEC has
been reformed under a decree that in no way violates freedom of association; (ii) the
allegations refer to internal problems between the trade union organizations, which they
should resolve among themselves; (iii) the transfer of trade union dues to the UTP was
carried out in accordance with the law and with the requests received following the
creation of the new trade union organization, the UTP, respecting the decision taken by
the minority trade unions not to participate in the proposed procedure; (iv) the
transfer of workers was carried out as a result of a unilateral decision by INPEC, in
compliance with the regulations and with a view to streamlining prison services, rather
than prejudicing the trade union organizations; and (v) the Colombian judiciary has
examined the claims made by the complainants and has ruled against them.
- 92. Regarding the allegation that a bill of 2011 to grant prison guards
civil authority status had anti-union motives to exclude guards from trade union
immunity, the Committee takes note of the reply provided by INPEC denying the existence
of such a bill; and that Decree No. 4150, of 3 November 2011, which partially reformed
the structure of INPEC, has no effect on the exercise of freedom of association, as
demonstrated by the large number of registered trade union organizations within INPEC.
The Committee takes note of this information and will therefore not pursue its
examination of this aspect of the complaint.
- 93. With regard to the alleged acts of interference by the trade union
organization ASEINPEC in the affairs of other INPEC trade unions, the Committee recalls
that Conventions Nos 87 and 98 protect workers and their organizations against acts of
non-compliance by the Government or the employer, but they do not refer to acts by trade
union organizations against other workers’ organizations. Therefore, the Committee will
not pursue its examination of this aspect of the complaint.
- 94. Regarding the alleged interference by the public authorities and the
INPEC management in the creation of the UTP, the Committee observes that the information
provided indicates that the UTP was created on 27 October 2011, through a merger between
various INPEC trade union associations, at a time when there was a multiplicity of trade
unions and as a result of debates regarding the future closure of INPEC. The Committee
observes that, in support of their allegations of interference, an appendix to the
communications from the complainant organizations contains a copy of Request No.
7330-SUTAH from INPEC, dated 3 May 2012, addressed to the Ministry of Labour, in which
INPEC refers to the background to the creation of the UTP, indicating that “as a result
of the restructuring of INPEC and in order to guarantee the exercise of freedom of
association without prejudice to the public service under the Institute’s charge, a
Government initiative considered it necessary to merge those organizations into one”. In
this regard, the Committee wishes to recall the principle that workers should be free to
choose the union which, in their opinion, will best promote their occupational interests
without interference by the authorities. It may be to the advantage of workers to avoid
a multiplicity of trade unions, but this choice should be made freely and voluntarily
[see Digest of decisions and principles of the Freedom of Association Committee, fifth
(revised) edition, 2006, para. 322]. The Committee requests the Government to ensure
that, in the future, the INPEC authorities fully respect this principle.
- 95. With regard to the allegations in relation to the transfer of the
union dues of two pre existing trade union organizations (ASEINPEC and SIGGINPEC) to the
newly created UTP by the INPEC authorities as of April 2012, the Committee notes that
the information provided indicates that: (i) the officials of the two aforementioned
pre-existing trade union organizations participated in the trade union merger process,
which led to the creation of the UTP; (ii) the UTP founding document stated that “all
members of dissolved trade union organizations, whose lists of members are transmitted
with the aforementioned dues, are attached to the UTP”; (iii) the complainant
organizations allege that the automatic transfer of trade union dues to the UTP was
facilitated by the creation of fake documents, including fake lists of UTP members drawn
up by SIGGINPEC officials or ex officials; (iv) the legal office of INPEC considered
that the transfer of trade union dues should be preceded by the certification of the
dissolution and closure of the two organizations that would no longer be receiving the
dues and by a written statement from each of the members agreeing to the transfer of
their dues to the UTP; (v) on that same subject, the Ministry of Labour indicated that
the legislation did not provide for the automatic transfer of trade union dues to
another organization and that the management of the accounts of a trade union should be
governed by the decisions of its general assembly and the provisions of its statutes,
not allowing for the interference of third parties in such matters; (vi) under a ruling
of 8 August 2012, the High Court of Bogotá considered that INPEC had transferred the
trade union dues of a SIGGINPEC member to the UTP irregularly, especially since the
SIGGINPEC plenary did not acknowledge its closure or its merger with the UTP, and this
had jeopardized the survival of SIGGINPEC; (vii) the court found, however, that the
worker’s union dues had been transferred back to SIGGINPEC as of August 2012; and (viii)
the 24th Labour Court of Bogotá rejected the tutela proceedings filed by SIGGINPEC
against the management of INPEC regarding the transfer of trade union dues, considering
that there was no evidence of irreparable harm to the trade union organization, and it
suggested that the complainant refer the case to the ordinary courts, whereby the case
is currently pending resolution before the administrative courts.
- 96. The Committee recalls that, in general, the repartition of trade
union dues among various trade union structures is a matter to be determined solely by
the trade unions concerned [see Digest, op. cit., para. 474] and that respect of
principles of freedom of association requires that the public authorities exercise great
restraint in relation to intervention in the internal affairs of trade unions. It is
even more important that employers exercise restraint in this regard. They should not,
for example, do anything which might seem to favour one group within a union at the
expense of another [see Digest, op. cit., para. 859]. In this regard, the Committee
regrets that INPEC has not followed the opinions issued by its legal office and by the
Ministry of Labour and observes that the High Court of Bogotá found irregularities in
the transfer of trade union dues for a member of one of the complainant organizations.
The Committee requests the Government to keep it informed of the ruling regarding the
validity of the transfer of the trade union dues of members of the complainant
organizations to the UTP and expresses the firm hope that the ruling will be issued in
the near future, given the importance of the funding of trade union organizations for
the effective exercise of their activities. While awaiting that decision and taking note
of the ongoing disputes, the Committee requests the Government to ensure that persons
who had been members of the complainant organizations prior to the creation of the UTP
had individually consented to the transfer of their union dues to that
organization.
- 97. Regarding the alleged anti-union transfers of trade union officials,
the Committee notes that the Government denies that the transfer decisions had any
anti-union motives and indicates that they were taken to meet the needs of the service
with a view to streamlining prison service operations. The Committee also observes that
in respect of various cases referred to in the complaint, judicial decisions have been
issued denying the complainants’ claims on the grounds that the persons transferred were
not trade union officials. The Committee requests the Government and the complainant
organizations to keep it informed of any further judicial decisions in this regard.
The Committee’s recommendations
The Committee’s recommendations- 98. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee
requests the Government to ensure that, in the future, the INPEC authorities fully
respect the principle of non-interference in trade union affairs.
- (b) Given
the importance of the funding of trade union organizations for the effective
exercise of their activities, the Committee expects that the ruling regarding the
validity of the transfer of the trade union dues of members of the complainant
organizations to the UTP will be issued in the near future and requests the
Government to keep it informed in this regard. While awaiting that decision, the
Committee requests the Government to ensure that persons who had been members of the
complainant organizations prior to the creation of the UTP had individually
consented to the transfer of their union dues to that organization.
- (c)
Regarding the alleged anti-union transfers of trade union officials, the Committee
requests the Government and the complainant organizations to keep it informed of any
further judicial decisions in this regard.