Informe definitivo - Informe núm. 143, 1974

1. 67. The complaint of the Latin American Central of Workers is contained in a communication dated 27 June 1973. This complaint was transmitted to the Government, which sent its observations in a communication dated 26 October 1973.
2. 68. 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

1. 69. In its communication of 27 June 1973, the Latin American Central of Workers (CLAT) states that it filed its complaint against the Government of Colombia on behalf of the Colombian Television Association (ACOTV). It annexes to its communication a letter from this Association dated 5 June 1973.
2. 70. In this letter the ACOTV states the facts which, it claims, forced it to declare a strike in view of the slowness to react of the Government and of the managing bodies of the National Institute of Radio-Television (Inravision).
3. 71. In December 1972 the ACOTV submitted to the Inravision Board of Directors a memorandum claiming salary increases. The board replied that on legal grounds this document could not be examined.
4. 72. The ACOTV added that the Supreme Court of Justice of Colombia had declared that section 38 of Extraordinary Decree No. 3130 of 1968 was unconstitutional. That provision read as follows: "Management boards or councils of state establishments and of state industrial and commercial enterprises shall, within twelve months following the date of assent to the present Decree, prepare for government approval a draft statute for their personnel covering: the definition of the conditions for the creation, suppression and amalgamation of positions and admission to service; administrative and disciplinary regulations, the scope of the administrative career and the relevant procedures; similarly everything related to the classification and remuneration of jobs, allowances and bonuses, entertainment allowances, travelling expenses, overtime, social security benefits, and the conditions for appointment on mission at home and abroad."
5. 73. The ACOTV adds that following this decision by the Supreme Court, the Board of Directors of Inravision refused to discuss its salary claim.
6. 74. The Public Service Commission, acting on government instructions, sent a circular to the directors of state establishments informing them that Boards of Directors of such establishments were not competent to determine remuneration levels, since the Supreme Court considered that such questions fell within the competence of the Congress; the Public Service Commission added that these matters would continue to be governed by the legal standards in force and the regulations drawn up by state establishments and approved by the Government before 3 December 1972, which is the date of the Court's Order. Similarly, questions relating to the creation, suppression or amalgamation of positions would be dealt with in accordance with the provisions of the Supply Act and the various decrees of 1972, without implying prejudice to the power to change or supplement the salary system applicable in each organisation.
7. 75. But, the ACOTV adds, this provision cannot be applied in the case of Inravision since the personnel statutes have not been approved by the Government and, moreover, section 39 of Decree No. 3130 of 1968 provides that the standards which at present govern matters covered by section 38 will remain in force until the Government has approved the draft statute referred to in section 38.
8. 76. In view of this situation, the ACOTV sent seventeen messages to the President of the Republic but claims to have received no reply. The general assembly of the ACOTV then threatened to strike if its claims were not examined within eight days.
9. 77. Moreover, the lawyers of the ACOTV drew up, at the latter's request, a legal opinion indicating that the management of Inravision could recognise that its employees have the status of "official employees" since Inravision is a state commercial undertaking.
10. 78. The ACOTV points out that Inravision then had a legal opinion drawn up which arrived at identical conclusions, namely, that since they had the status of "official employees" the workers of this body automatically enjoyed the rights provided by the Labour Code with respect to the presentation of wage claims and collective negotiation.
11. 79. The ACOTV adds that in spite of these legal opinions the management of Inravision began to use delaying tactics and refused its requests for interviews. In these circumstances the general assembly of the ACOTV decided to call a general strike, during which the workers were expelled by the army and the police, although according to the ACOTV, their movement acted peacefully from every point of view.
12. 80. In its communication dated 26 October 1973 the Government confirms the declaration of the Colombian Supreme Court that section 38 of Decree No. 3130 of 1968 is unconstitutional. It points out that Inravision could not discuss the claims of the ACOTV, adding that this was explained at length to the trade union. The Government points out that in January 1973 it presented a draft Bill in which it requested the Congress to grant it extraordinary powers in order to solve the problems raised by wage claims in state establishments. The Government also points out that during that period Inravision continued its discussions with the trade unions.
13. 81. Following the stoppage of work ordered by the ACOTV on 22 March 1973 the Ministry of Labour and Social Security declared that the strike was illegal and suspended the legal personality of ACOTV for six months. As the dispute continued, Inravision dismissed several officials.
14. 82. According to the Government the argument that the employees of Inravision should be considered "official employees" is not self-evident. Inasmuch as Inravision is a state establishment, its employees should be considered "public employees" without the right to strike.

B. B. The Committee's conclusions

1. 83. The Committee has examined the provisions of the Colombia Labour Code relating to official employees and public employees. It has noted that section 416 of the Labour Code makes a distinction between public employees and official employees. This section states that unions of public employees may not submit claims or conclude collective agreements; but it adds that unions of other official employees enjoy all the rights of other trade unions and that their claims shall be studied in the same light as those of other trade unions even if they may neither declare nor hold strikes.
2. 84. The Committee notes that the allegations relate essentially to the right of collective bargaining in a public establishment, the National Radio Television Institute. It also notes that the staff union of this body considers that the staff should be considered official employees and should thus enjoy the right of collective bargaining.
3. 85. On the other hand, the Committee notes that the Government does not share this point of view and considers that the employees of Inravision should be considered "public employees" and hence that their union may not negotiate collective agreements. The Committee also notes that the Ministry of Labour suspended the legal personality of the Colombian Television Association following the declaration that the strike was illegal.
4. 86. The Committee wishes first of all to stress, as it has done in previous cases relating to Colombia, that suspension by the Ministry of Labour of the legal personality of a union - the legal personality being one of the conditions enabling the union to function - is contrary to the generally admitted principle that unions should not be liable to administrative suspension.
5. 87. As for the allegations relating to the right to bargain collectively, the Committee considers that in the present case it is first of all a question of determining to what extent the principle contained in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), according to which measures appropriate to national conditions should be taken to encourage and promote the voluntary negotiation of collective agreements, applies to the workers concerned. Article 6 of that Convention allows the exclusion of "public servants". In this connection, the Committee of Experts on the Application of Conventions and Recommendations has pointed out, that, while the concept of public servant may vary to some degree under the various national legal systems, the exclusion from the scope of the Convention of persons employed by the State or in the public sector but who do not act as agents of the public authority (even though they may be given a status identical with that of public officials engaged in the administration of the State) is contrary to the meaning of the Convention. The distinction to be drawn, according to the Committee, would appear to be basically between civil servants employed in various capacities in government ministries or comparable bodies on the one hand and other persons employed by the Government, by public undertakings or by autonomous public institutions. According to this criterion, it would not appear that the staff of Inravision can be excluded by reason of their duties from the principle concerning the promotion of collective bargaining.