Informe definitivo - Informe núm. 130, 1972

1. 7. The complaint of the Iron and Steel Workers' Union of Colombia is contained in a communication dated 16 September 1970 and sent direct to the ILO. This complaint was transmitted to the Government, which sent its reply in two communications dated 19 November 1971 and 11 January 1972.
2. 8. Colombia has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 9. The complainants refer in their complaint to a judgement rendered on 4 June 1970 by the Supreme Court of Justice authorising the employers to submit proposals to the workers with a view to doing away with the social benefits that the workers had secured by means of collective labour agreements. The complainants consider that these proceedings were in breach of the ILO Conventions.
2. 10. In its reply, the Government states that the Supreme Court pronounced judgement with respect to a plea of unconstitutionality based on a certain provision (words in italics) contained in section 3, clause 2, of Act No. 48 of 1968, which states: " At any time before a strike is called, or while a strike is in progress, the trade union or unions to which over half of the workers belong, or, failing that, the workers at a general assembly, may request that the points at difference in respect of which no agreement has been reached between the parties in the stages of direct settlement and conciliation, contained in the workers' claims as the draft of a collective agreement or collective employment contract, should be submitted for judgement to a compulsory arbitration tribunal established in the manner described below." The Supreme Court by a majority of its members ruled that the provision in question is contrary to the Constitution of the country. The Government draws attention to the separation of powers in Colombia, and sends the text of the judgement and of the dissenting opinions.

B. B. The Committee's conclusions

1. 11. In the light of this information, the Committee observes that the problem raised may be summed up as follows. In accordance with section 479 of the Labour Code a collective agreement of indefinite duration may be denounced by either side or both, but shall remain in force until a new agreement has been signed. According to the majority opinion of the Supreme Court, this implies that, in order to terminate an agreement in whole or in part, there is no other method than to conclude a new agreement. The judgement also states that, to give juridical effect to the denunciation of an agreement in the event of failure to reach a settlement during the stages of direct negotiation and conciliation, the position taken up by each of the parties during these stages should form the basis for the arbitral award. If, although an agreement has been denounced by the employers, the arbitrators may take into account for the settlement of the dispute only " the workers' claims as the draft of a collective agreement or collective employment contract ", this is equivalent to denying the juridical effect of the denunciation. The judgement states that, if the employers' denunciation of an agreement lacks this juridical validity, this is a violation of article 37 of the Constitution, which provides that there shall not be in Colombia any irredeemable obligations, that is: obligations from which the obligor may in no way free himself.
2. 12. The Committee observes that the claimant in the case judged by the Supreme Court had alleged that the words referred to in Act No. 48 " eliminate the employers' right to participate in collective bargaining, and to obtain a modification in the employers' favour of the economic conditions laid down in a previous collective agreement ". But the Iron and Steel Workers' Union seems to interpret the judgement rendered by the Supreme Court as legalising the presentation of proposals by the employers with a view to doing away with certain social benefits contained in previous collective agreements.
3. 13. The Committee is not called upon to examine whether various legal provisions and the interpretation placed upon them by judicial or administrative authorities are Constitutional or not, but only to examine whether the national legislation and the interpretation placed upon it by competent authorities are compatible with the international principles concerning freedom of association and trade union rights.
4. 14. The Committee considers that the fact that a court of arbitration must take into account, in rendering judgement, not only the claims of the workers but also the arguments and counter-proposals of the employers constitutes a normal situation which in no way affects the above-mentioned principles. On the other hand, the right to strike, which the Committee has always considered one of the essential means available to workers and their organisations of promoting and defending their occupational interests, would be affected if a legal provision were to allow employers to submit in every case for compulsory arbitral decision a dispute resulting from failure to reach agreement during collective negotiation and so prevent recourse to strike. In fact, while the Committee has accepted a temporary restriction of strikes during the procedures of conciliation and arbitration, or the prohibition of strikes in the civil service or in essential services (provided always that this is accompanied by procedures of conciliation and arbitration to protect the interests of the workers), it has pointed out that if a legislation imposes directly or indirectly the absolute prohibition of strikes, this prohibition can constitute an important restriction of the potential activities of trade unions, which would not be in conformity with the generally recognised principles of freedom of association.
5. 15. As for the possibility that the employers might have under the legislation of presenting proposals for the purposes of collective bargaining, the Committee considers that, if these proposals are merely to serve as a basis for the voluntary negotiation to which Convention No. 98 refers, they could not be considered a violation of the principles applicable to this matter.