Informe provisional - Informe núm. 74, 1964

1. 201. The complaint by the World Federation of Trade Unions was submitted in a letter sent direct to the I.L.O on 11 October 1963. It was then forwarded to the Colombian Government, which sent in its comments in a letter dated 31 January 1964.
2. 202. Colombia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations regarding Various Questions Arising out of the Strikes in the Petroleum Industry
  203. 203 According to the complainants, the trade union in the state-owned Colombian Petroleum Company (ECOPETROL) revealed a series of thefts and embezzlements in the company, which it alleged-had been committed by some of its senior executives. As a result of these disclosures, some of the union leaders were victimised and in protest the workers came out on strike on 19 July 1963. This led to reprisals, and on 19 July the Minister of Labour issued an Order (No. 1412) declaring the strike to be illegal, depriving the trade union of its legal personality and giving authority for its leaders to be dismissed. The petroleum workers called their Fourth Extraordinary Congress from 22 to 27 July, at which it was decided that the workers in the industry should stop work for 48 hours in sympathy with the ECOPETROL strikers. This stoppage took place without incident on 6 and 7 August. In reprisal the Minister of Labour imposed a fine of 500 pesos on the Federation of Petroleum Workers (FEDEPETROL), withdrew the legal personality of the unions which had complied with the strike order and gave permission to the employers to dismiss any of their workers. As a result of this order, the unions in the Fertilizer Company, the Colombian Gas Company, the Texas Petroleum Company, Shell Condor and the International Petroleum Company were deprived of their legal personality. When union leaders in the Fertilizer Company and the Texas Petroleum Company were dismissed, the workers in those firms came out on strike.
  204. 204 The complainants also state that in addition to allowing dozens of workers to be dismissed, the authorities brought in police and army units. On 17 August the police occupied the ECOPETROL union offices in Barranca and El Centro, smashing a number of objects; they also searched and ransacked the Shell union offices at Casabe together with a number of workers' houses. On 24 August a meeting of strikers from Texas Petroleum at Puerto Boyacá was attacked by troops, one worker called Martiniano Romero being killed and Ciervo Galeano, Carlos Trejos and Adonai Avila, among others, being injured. A number of lawyers acting on behalf of the unions (Diego Montaña, Nelson Robles and Pedro Ardila Beltrán) were arrested, as were many union leaders, among them Ezequiel Romero, Luis Ibáñez, Ramón Monsalve, Higinio Camacho and Rafael Barrio. On arrest, they were taken to various prisons and kept there arbitrarily for a number of weeks.
  205. 205 The Government, for its part, states that following the receipt of information from ECOPETROL, an investigation was made by the Auditor General's Office which brought to light a number of irregularities committed by certain employees, whose arrest was thereupon ordered. These employees were members of the trade union, which called a protest strike on 8 July 1963, occupying a number of buildings on the firm's premises and locking in a senior executive. This strike was called off on 11 July and the firm took disciplinary action against the union leaders. As a result, the union threatened to call another stoppage unless this disciplinary action was cancelled and the union officials reinstated. The strike began on 19 July, whereupon the Ministry of Labour issued an Order on the same date (No. 1412) under sections 450 (a), 450 (2) and 451 of the Labour Code. By virtue of these provisions the strike was declared to be illegal in that it affected a public service, and the legal personality of the trade union was suspended for two months; the Order also stated that the workers involved, including those who had hitherto been covered by trade union privilege, could now be dismissed (subject to certain conditions). The Government added that ECOPETROL had specifically been classified as a public service by decrees issued in 1952. Under the Colombian judicial system, appeals against Order No. 1412 could be lodged with the Council of State, which is the supreme court in administrative cases.
  206. 206 In its communication the Government also stated that, after an interview with a union delegate, the President of Colombia undertook to order the necessary inquiries into the management of the firm and instructed the Auditor General and the Public Prosecutor to take appropriate measures. Despite this, four days after the interview, FEDEPETROL, which only comprises seven of the 17 petroleum workers' unions in the country, issued a call on 27 July for a general strike in sympathy with the ECOPETROL union. At the end of that month a number of acts of sabotage were carried out against ECOPETROL installations, wells and pipelines. This showed, the Government stated, that the illegal Communist-led strike by the ECOPETROL workers had developed into a subversive movement with obvious political aims. Five of the seven unions affiliated to the Federation responded with a 48-hour strike in sympathy with the ECOPETROL union. Using its statutory powers, the Ministry of Labour imposed a 500-peso fine on FEDEPETROL. The Government added that appeals against such measures could be lodged through administrative channels and taken ultimately to the Council of State itself. The strikes by the five unions were declared to be illegal, and their legal personality was suspended for two months.
  207. 207 The acts of sabotage continued, and the Government, acting by virtue of article 28 of the Colombian Constitution, ordered the " detention " of two lawyers, Diego Montaña Cuéllar and Nelson Robles, trade union leader Pedro Ardila Beltrán, and others. At the same time, the police searched the offices of the ECOPETROL union and found various explosives and materials for sabotage, as a result of which a number of other union leaders were arrested, among them the President of FEDEPETROL, Ezequiel Romero. The Government explained that the judicial procedure was followed in the case of the " detained " individuals, and the criminal investigating magistrate ordered Diego Montaña Cuéllar, Luis Ibáñez, Higinio Camacho, Rafael Vargas and Ezequiel Romero to be taken into protective custody for breach of section 7 (14) of Decree No. 0014 of 1955, which takes a particularly serious view of " individuals who, for the purpose of disturbing the working of an industrial establishment, cause defects in its machinery and equipment ". The same order declared that Nelson Robles, Pedro Ardila Beltrán and others were not guilty of this offence.
  208. 208 Lastly, on 24 August, despite the ban on public demonstrations, one was held in a square at Puerto Boyacá. When troops attempted to break up the demonstration peacefully, officers and soldiers were attacked by a number of the demonstrators. In the ensuing struggle, one worker called Martiniano Romero was killed by a pistol shot and two others were injured. The Government stated that the Colombian army is not equipped with pistols. In order to ascertain responsibility for the death an inquiry was carried out by a criminal investigating magistrate and the Military Judge Advocate's Office. On 30 August a meeting of the ECOPETROL union called off the strike. By the end of the same month all the detained persons were set free. As regards those in protective custody, the judge dealing with the case ordered their release in September.
  209. 209 The Committee considers that the information supplied by the complainants and the Government involves a series of major allegations connected with the strikes in the petroleum industry, which call for its special attention; these are, in brief, the allegations regarding a demonstration by the strikers in which one worker lost his life and others were injured, the arrest of union leaders and lawyers, the occupation, searching and ransacking of trade union premises and workers' homes, the illegality of the strike and the suspension of the unions.
       • (a) Allegations regarding a Demonstration by Strikers in Which One Worker Lost His Life and Others Were Injured
  210. 210 The complainants maintain that the demonstrators in the square at Puerto Boyacá were attacked by troops who killed one worker and injured others. The Government, on the other hand, asserts that the officers and troops who intervened to break up the demonstration peacefully were themselves attacked and that a worker was killed and others injured by pistol fire; it adds that pistols are not used by the Colombian army.
  211. 211 In similar cases in which it has been alleged that people have been killed when the police opened fire on strikers, the Committee has recalled that in cases in which the dispersal of public assemblies, etc., by the police on grounds of public order or similar grounds involved loss of life, it attached special importance to the circumstances being fully investigated by an immediate and independent special inquiry and to the regular legal procedure being followed to determine the justification and responsibility for the action taken by the police. In the present case, the Government denies that the forces of law and order were responsible for this occurrence. In view of the fact that the Government states that the necessary judicial inquiries have been started, the Committee recommends the Governing Body to ask the Government to be good enough to inform it of the result of these inquiries.
       • (b) Allegations regarding the Arrest of Union Lawyers and Leaders
  212. 212 The complaint refers to the arrest of a number of union lawyers and leaders who are stated to have been kept arbitrarily imprisoned for a number of weeks. The Government in its reply makes a distinction between the " detention " of certain lawyers and union leaders under article 28 of the Constitution and their subsequent trial. Some of them were taken into protective custody, while others were released. Article 28 (2) of the Constitution, under which these individuals were detained, states: " This provision shall not, even in time of peace if there are good reasons for apprehending a disturbance of law and order, prevent the arrest and detention by decision of the Government and order of the Ministers of persons who are reliably believed to be committing a breach of the peace."
  213. 213 The Committee has taken the view in many cases in which it has been alleged that union leaders or members have been taken into protective custody that such measures might constitute serious interference with the exercise of trade union rights and that such measures could only be justified in a serious emergency; that, unless accompanied by due judicial safeguards applied within a reasonable time, they would be open to criticism and that the policy of any government should be to ensure that human rights are properly guaranteed and, above all, the right of any person under arrest to receive a prompt and fair trial.
  214. 214 The Committee observes that after a few days in the present case the persons " under detention " appear to have been placed at the disposal of the judicial authority, which issued an order for the protective arrest of Diego Montaña Cuéllar, Luis Ibáñez, Higinio Camacho, Rafael Vargas and Ezequiel Romero. Other individuals, including Nelson Robles and Pedro Ardila Beltrán, were released. The detained individuals taken into protective custody were set free somewhat later when the order against them was cancelled. The Committee also observes that in fact none of the individuals involved was found guilty and that at the present time none of the participants in the strikes is under arrest.
  215. 215 Accordingly, the Committee recommends the Governing Body to take note of the fact that all the persons involved in strikes have been set free, but that since none of the persons arrested was found guilty, to call the Government's attention to the danger that may be entailed for the exercise of trade union rights by the preventive arrest of workers and union leaders against whom no charges can subsequently be proved.
       • (c) Allegations regarding the Occupation, Searching and Ransacking of Union Premises and Workers' Homes
  216. 216 The complainants state that union premises and workers' homes were occupied, searched and ransacked and added that the police destroyed furniture and equipment in the union offices. The Government merely states that the headquarters of the Barranca joint union offices were searched and that bombs and sabotage equipment were found there.
  217. 217 The Committee, while recognising on a number of occasions that trade unions, like other associations or persons, cannot claim immunity from search of their premises, has pointed out the importance it attaches to the principle that any such search should only be made following the issue of a warrant by the ordinary judicial authority, after that authority has been satisfied that reasonable grounds exist for believing that evidence exists in the said premises material to a prosecution for an offence under the ordinary law and provided that such search is restricted to the purposes in respect of which the warrant was issued.
  218. 218 The Committee notes that, on the one hand, the complainants give no further details regarding the facts in question and that, on the other hand, the Government gives only a partial account of what happened without referring to the other allegations in the complaint. In these circumstances, the Committee cannot reach a firm conclusion on the facts, but recommends the Governing Body to call the Government's attention to the principle set forth in the previous paragraph.
       • (d) Illegality of the Strikes
  219. 219 According to the complainants and the Government's own reply, the Minister of Labour on several occasions declared the strikes called by a number of unions in the petroleum industry to be illegal. This led to the suspension of the legal personality of the unions in question, the authorisation of dismissals of workers (including those hitherto covered by trade union privilege) and the imposition of a fine. Strikes can be declared illegal under section 450 (a) of the Labour Code, under which a collective stoppage of work becomes illegal if it occurs in a public service. Section 451 gives the Ministry of Labour authority to declare such a strike illegal. An order to this effect must be obeyed immediately, although an appeal against it can be lodged through administrative channels and ultimately with the Council of State. It should be added that section 430, which forbids strikes in public services, includes under this heading "activities connected with the production, refining, transport and distribution of petroleum and petroleum products where these are intended, in the opinion of the Government, to satisfy the country's normal fuel requirements ".
  220. 220 The Committee has always maintained the principle that allegations relating to the right to strike are within its competence in so far, but only in so far, as they affect the exercise of trade union rights, and has pointed out on a number of occasions that normally workers and their organisations are accorded the right to strike as a legitimate means of defending their occupational interests. In this connection, the Committee has emphasised the importance which it attaches, where strikes are prohibited or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests, and has pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and that the resulting awards should, in all cases, be binding on both parties.
  221. 221 Under the Colombian Labour Code, collective disputes in public services which cannot be settled either by direct negotiation or by conciliation must be submitted to compulsory arbitration, the conciliator or conciliators being appointed by the parties. The latter also appoint two members of the arbitration tribunal, the third being selected by the Ministry of Labour.
  222. 222 The Committee notes, therefore, that while strikes are forbidden in petroleum companies if they " satisfy the country's normal fuel requirements ", in which case they are considered to constitute a public service, workers have other means of solving disputes in accordance with the principles listed above. Nevertheless, the Committee also observes that under section 430 quoted earlier, all branches of the petroleum industry are not classified as a public service but only if they are needed "in the opinion of the Government, to satisfy the country's normal fuel requirements ". This clause leaves it to the Government to decide when a branch of the petroleum industry can be considered to be a public service and a strike prohibited in accordance with the foregoing condition. An appeal against such a decision can be taken to the Council of State, which is the supreme court for administration disputes. This aspect of the case links up with the more general problem of the prohibition of strikes in public services, which is discussed below in paragraphs 229 and 230, to which reference should be made.
       • (e) Suspension of Trade Unions
  223. 223 By declaring the strike by the petroleum workers' unions to be illegal, the Minister of Labour withdrew their legal personality for a period of two months. This action was based on section 450 (2) of the Labour Code, and an appeal against it could be lodged with the Council of State. Section 372 of the Labour Code states: " No industrial association may act as such or carry out the functions conferred on it by law and its own rules, or exercise its own rights without having been granted legal personality; and it shall carry out such functions and exercise such rights only for as long as such legal personality lasts."
  224. 224 The Committee notes that under these provisions a union can, in fact, be suspended by administrative order, which is contrary to generally accepted principles. The Committee has stated earlier that where suspension is ordered by an administrative authority, there is a danger that it may seem arbitrary, even if it is only temporary and is followed by judicial action. The Committee considers, furthermore, that if the principle that an occupational association may not be subject to suspension or dissolution by administrative decision is to be properly applied, it is not sufficient for the law to grant the right of appeal against such administrative decisions, but that the latter should not take effect until the expiry of the statutory period for lodging an appeal or until the confirmation of such decisions by a judicial authority. The Committee also wishes to point out, as it has on another occasion in dealing with refusal to register a trade union (and as also emphasised by the Committee of Experts on the Application of Conventions and Recommendations), that if the administrative authority has discretion to decide whether a union has or has not complied with the requirements on which the decision to grant or cancel registration is based, the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect, this does not alter the nature of the powers conferred on the authorities responsible for effecting registration, and judges hearing such an appeal-except in certain cases-would only be able to ensure that the legislation had been correctly applied. Accordingly, the Committee must emphasise once more the importance it attaches to allowing judges to deal with the substance of such cases in order to decide whether the provisions on which the administrative measures being appealed against themselves infringe the rights of occupational associations as regards freedom of association and protection of the right to organise.
  225. 225 Accordingly, the Committee recommends the Governing Body to call the Government's attention to the importance it attaches to the principle that a workers' or employers' organisation should not be liable to suspension or dissolution by administrative decision and to suggest to the Government the possibility of reviewing its national legislation in order to bring it into harmony with this principle in the light of the foregoing paragraph.
• Allegations regarding Measures Taken as a Result of the Strike Called by the C.T.C.
  226. 226 The complainants allege that on 9 August 1963, following the strike called by the C.T.C, the Minister of Labour imposed a fine of 500 pesos on the Confederation and deprived the unions of the following undertakings of their legal personality Empresa de Distrito de los Transportes Urbanos, Instituto de los Trabajos Públicos Municipales, Términus de los Marinos y Navegantes de Barranquilla, Términus Marítimo y Fluvial de Cartagena, Términus Marítimo de Fumaco, Términus Marítimo de Santa Marta, Empresa de los Puertos de Colombia, Términus Marítimo de Buenaventura, Trabajadores Marítimos y Fluviales de Barranquilla, Industria Colombiana de las Máquinas Icassa, Laboratorio Frosst de Colombia.
  227. 227 The Government states that the C.T.C, which comprises 430 unions, called a 24-hour protest strike against the " failure of some officials to deal with the growth in monopolies and speculation, the rise in unemployment, the closing down of a number of firms and the terrorist outbreaks, and because of the widespread panic among the people due to the threat of a coup d'état against the Constitutional Government", etc. The Government added that only 33 of the 430 member unions in fact obeyed the strike call. The strike itself was declared illegal by the Government on the ground that it conflicted with subsections (b) and (c) and (in most cases) also with subsection (a) of section 450 of the Labour Code. Under paragraph (2) of this same section, the legal personality of the participating unions was suspended for two months and the C.T.C was required to pay a fine of 500 pesos by virtue of sections 379, 380 and 417 of the Labour Code. An appeal against any of these measures could be lodged with the Council of State. On 16 September the Minister of Labour cancelled this suspension and, at the present time, the unions once more possess their normal legal personality.
  228. 228 The Committee notes that, according to the Government, one of the provisions by virtue of which the strike was declared illegal is section 450 (a), which forbids collective stoppages of work in public services. This clause, which is referred to above in connection with strikes in petroleum companies, was analysed in detail in Case No. 146 involving Colombia. On that occasion the Committee had noted that under Decree No. 0753, dated 5 April 1956, section 430 of the Labour Code was amended to read as follows:
• Under the National Constitution, strikes are forbidden in the public services. For this purpose a "public service" means any activity organised to satisfy the requirements of the general public regularly and continuously under special regulations and carried on either by the State directly or indirectly or by private individuals.
• Public services shall therefore include the following activities:
  • (a) activities in any branch of public authority;
  • (b) activities in transport undertakings on land, sea, inland waterways or in the air or in undertakings for the supply of water, the production of electrical energy and telecommunications;
  • (c) activities in health establishments of every kind, such as hospitals and nursing homes;
  • (d) activities in social assistance, charitable and welfare establishments;
  • (e) activities in creameries, markets, abattoirs and in the distribution services of such establishments, whether of a public or private nature;
  • (f) activities in all services for the hygiene and cleansing of towns;
  • (g) activities connected with the production, processing and distribution of salt;
  • (h) activities connected with the production, refining, transport and distribution of petroleum and petroleum products where these are intended, in the opinion of the Government, to satisfy the country's normal fuel requirements;
  • (i) any other activities which, in the opinion of the Government, concern the safety, health, education and economic or social life of the people. The Government shall consult the Council of State before making a decision on whether any activities falling under this article are to be deemed public services.
    229. 229 After analysing this legislation, the Committee considered, on that occasion, that although there existed a procedure for the settlement of disputes by means of arbitration, the restrictions on the right to strike in public services were far-reaching and that the Government had the right to include in the definition of those public services in which strikes were forbidden, any others that in the opinion of the Government affected the safety, health, education and economic or social life of the population and the power to decide, in consultation with the Council of State, which forms of employment fell within the categories defined. In these circumstances the Committee recommended the Governing Body to draw the attention of the Government to the possibility of abuse present in such a situation.
    230. 230 In this connection the Committee wishes to add that, according to the principles laid down in many cases (referred to above in paragraph 220), the restriction or prohibition of strikes in essential services can be accepted, subject to certain conditions. However, the scope of section 430 is such that it cannot be regarded as applying only to the services which are generally recognised to be essential. The law leaves the Government a good deal of latitude in deciding which activities are considered to be public services-which, in certain cases, might not coincide with those that come under the heading of an " essential service ". This might occur, for example, in the case of a strike by bank employees, since under Decree No. 1593 of 1959 the whole banking industry is declared to be a public service; the same applies to a petroleum firm under the formula employed by the law to define the circumstances in which a branch of the petroleum industry can be classified as a public service. In such a case, the Committee's principle regarding the prohibition of strikes in " public services " might be set aside if a strike were declared illegal in one or more firms which were not performing an "essential service" in the strict sense of the term.
    231. 231 In these circumstances the Committee recommends the Governing Body to reiterate to the Government the views it expressed in connection with Case No. 146 and to call its attention to the abuses that might arise out of the application of section 430 of the Labour Code owing to its wide scope and having regard to the effects which the prohibition of strikes may have on the exercise of trade union rights, to suggest the possibility of considering an amendment to this section so that if it should be decided to prohibit strikes in certain cases the latter should be confined to services which are essential in the strict sense of the word.
    232. 232 Subsections (b) and (c) of section 450 deal with the prohibition of strikes if they are called for purposes other than occupational or economic, or if the strike settlement and conciliation procedure laid down by law has not been complied with.
    233. 233 On other occasions the Committee has rejected allegations relating to strikes by reason of their non-occupational character or where they have been designed to coerce a government with respect to a political matter or have been directed against the Government's policy and not in furtherance of a trade dispute. The Committee has also pointed out that compliance with a prescribed procedure, including conciliation and arbitration before calling a strike, is common under the laws and regulations of a large number of countries and, if reasonable, does not constitute a breach of freedom of association
    234. 234 In the present case the strike appears to have been directed against the Government's policy and in protest against certain developments and was not the outcome of a labour dispute in the strict sense of the term. As regards the statutory procedures that must be complied with in order to call a strike in accordance with the law, the Labour Code, as explained above, requires that attempts at direct settlement and conciliation should first be made, which does not appear to have been done in the present case.
    235. 235 In these circumstances the Committee recommends the Governing Body to note that the strike was prohibited on the ground that its purposes were not occupational or economic in character, and because the statutory procedure for direct settlement and conciliation had not been complied with.
    236. 236 Lastly, as regards the suspension of the legal personality of the unions which took part in the strike, reference should be made to the Committee's comments in paragraph 225.
  • Allegations regarding the Medellin Trade Union
    237. 237 The complainants state that, according to the Medellin Trade Union, the local employers, following a ruling by the Ministry of Labour, have refused to allow the workers to form trade unions, to submit claims or conclude collective agreements.
    238. 238 The Government in its reply states that it does not know of the ruling referred to in the complaint. The union in question submitted a series of claims and negotiated with the employers. The parties failed to come to an agreement and a compulsory arbitration tribunal was appointed by the Ministry in accordance with section 452 of the Labour Code because the firms in question constituted a public service, the parties appointed their arbitrators and the Ministry of Labour selected its own nominee; a unanimous award was made granting better wages and conditions of work, and not a single day's work was lost as a result of any strike.
    239. 239 The Committee, while observing that this case would appear to concern establishments constituting a public service and therefore subject to the relevant regulations about the submission of claims, notes that the complainants have worded their complaint very vaguely and do not make sufficiently clear the nature of the actions alleged to constitute a breach of trade union rights.
    240. 240 Accordingly, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.