Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

The Committee notes the Government’s report.

The Committee recalls that in its previous direct requests it emphasized that, by virtue of Article 1 of the Convention, employees in the public service should have the right to collective bargaining, although special modalities of application may be determined.

The Committee notes the Government’s indications that: (1) there are two categories in the public sector, namely public employees and officials; both are able to organize in unions, but only officials are able to engage in the collective negotiation of their terms and conditions of employment. Public employees are not legally allowed to establish a process of negotiation through the presentation of a list of demands; (2) the Supreme Court of Justice has found the restriction on the right to collective bargaining of trade unions of public employees to be justified and that this restriction is not contrary to ILO Conventions Nos. 151 and 154, and it has found that section 416 of the Substantive Labour Code, which restricts the right of collective bargaining of unions of public employees, by prohibiting them to submit lists of demands relating to their conditions and conclude collective agreements, is in accordance with the Political Constitution; (3) for the purposes of the application of the Convention, account should be taken of the recognition in law and case law of the right to collective bargaining of the so-called officials who, as workers in the service of the State, are fully guaranteed their right to collective bargaining; (4) the differentiation between these two categories of state servants corresponds to a legal tradition, an institutional system that is a product of the conditions in which the public administration has developed and, in the case of Colombia, is enshrined in the Political Constitution in its attribution of specific competences to the Executive and to democratically elected bodies in terms of the determination of the system of wages and benefits for one of these categories of public servants, namely public employees; and (5) the public employees have the right, according to the Supreme Court, to seek and find concerted solutions in case of dispute but cannot affect in any way the power of the authorities to unilaterally determine the conditions of employment, that is to say, the relevant executive authority or the legislature have the last word. The Committee recalls, however, that by virtue of section 414 of the Substantive Labour Code the unions of public employees can present to the respective heads of the administration respectful notes containing claims which concern all their members in general, or complaints relative to the treatment reserved to any one of them in particular, or suggestions aimed at improving the administrative organization or methods of work.

The Committee recalls that Article 1, paragraph 3, of the Convention (which covers collective bargaining) provides that, as regards the public service, special modalities of application of this Convention may be fixed by national laws or regulations or national practice. The Committee accordingly considers that the exclusion of public employees from the right of collective bargaining is not in conformity with the Convention. The Committee therefore requests the Government to take the necessary measures to bring the legislation into conformity with the Convention and to guarantee the right of public employees to collective bargaining.