Informe provisional - Informe núm. 197, Noviembre 1979

433. These cases were examined by the Committee at its sessions in May and November 1977 and February 1979. It presented interim conclusions on them in its 168th Report (paras. 235-256), 172nd Report (paras. 331-340) and 190th Report (paras. 233-264). These reports were approved by the Governing Body at its 203rd Session (May-June 1977), 204th Session (November 1977) and 209th Session (February-March 1979). Further allegations have been made by the National Union of Health Workers (18 May and 11 June 1979) since the case was last examined.

1. 433. These cases were examined by the Committee at its sessions in May and November 1977 and February 1979. It presented interim conclusions on them in its 168th Report (paras. 235-256), 172nd Report (paras. 331-340) and 190th Report (paras. 233-264). These reports were approved by the Governing Body at its 203rd Session (May-June 1977), 204th Session (November 1977) and 209th Session (February-March 1979). Further allegations have been made by the National Union of Health Workers (18 May and 11 June 1979) since the case was last examined.
2. 434. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to the undertaking Shellmar de Colombia, SA
  435. 435 At its February 1979 Session the Committee presented certain conclusions regarding the allegations that the undertaking Shellmar de Colombia had violated a collective agreement and taken measures against the union, including dismissal of its members. The Committee noted, in particular, on the basis of observations and documents sent by the Government, that an agreement had been signed between the union and the undertaking in June 1978 regulating the procedure to be followed for time off to attend to union business. On the recommendation of the Committee the Governing Body took note of this agreement. The Committee nevertheless thought it appropriate to request the complaining organisation to furnish before the Committee's next session any comments it wished to make with respect to the information supplied by the Government and mentioned in paragraphs 259 to 261 of the 190th Report. The request sent to the Union of Employees of Shellmar de Colombia, SA, dated 16 March and repeated on 13 June, has remained unanswered. In these circumstances, and in the light of its earlier conclusions, the Committee considers that the allegations in question do not call for further examination.
• Allegations relating to the suspension of unions by administrative authority
  436. 436 On examining the allegations relating to the suspension of legal personality of a trade union (union of workers of the Colombian Mineral Water Enterprise) by administrative authority, the Governing Body, at its February-March 1979 Session, again drew the Government's attention to the desirability of amending the provisions of the legislation relating to the suspension or dissolution of industrial associations so as to bring them fully into line with Article 4 of Convention No. 87; it noted that the Government proposed to refer to a commission the Committee's recommendations on the harmonising of its legislation with that Article, and requested the Government in the meantime to indicate whether an appeal lay to the courts against administrative decisions as at present provided for, specifying also what was the effect of an appeal, and by what provisions the matter was governed.
  437. 437 In its communication of 16 April 1979 the Government states that it has been its policy since 19773 to refrain from suspending the legal personality of unions as a sanction for strikes and to make no use of its powers in this respect, which are governed by the provisions of section 450 of the Labour Code. The Government adds that the President has been given special powers by law to reform the labour legislation in force. This reform will provide an opportunity to amend the provisions relating to the dissolution and suspension of industrial organisations.
  438. 438 The Committee notes that the information furnished by the Government does not contain the details which had been requested regarding the right of appeal against the administrative decisions at present provided for in the text of the Labour Code. Nevertheless, the Government states that it is refraining from resorting to the administrative suspension of trade unions and that it intends to include an amendment to the legislative provisions in question in the reform of the labour legislation. The Committee would like to be kept informed of the progress made in bringing the legislation on this point into conformity with the principle in Article 4 of Convention No. 87 that workers' organisations shall not be liable to be dissolved or suspended by administrative authority.
• Allegations relating to the death of an indigenous leader and to the arrest of a trade unionist
  439. 439 Regarding the allegations relating to the death of the indigenous leader, Justiniano Lame, and the arrest of an official of the National Agrarian Federation, the Governing Body, at its February-March 1979 Session, on the recommendation of the Committee:
       • (i) drew the Government's attention to the importance it attached to the speedy and full elucidation of cases involving the death of a trade unionist and the threat to the exercise of trade union rights implied by the detention of trade unionists concerning whom no grounds for conviction are subsequently found;
       • (ii) to note that the trade union official arrested had been provisionally released;
       • (iii) requested the Government once again to furnish as soon as possible the text of the judgement handed down in respect of both these cases.
  440. 440 In its communication of 16 April 1979 the Government states that legal action is pending before the penal military courts as regards the death of the indigenous leader, Justiniano Lame, but that the judgement has not yet been given.
  441. 441 As regards Mr. Abel Pino, an official of the national Agrarian Federation, the Government states that no verdict has been given and that the military prosecutor has opened an inquiry into the state of the proceedings. The Government states that it will send complete information as soon as it is to hand.
  442. 442 The Committee takes note of these statements. Since the alleged facts go back to the beginning of 1977, the Committee hopes that the information requested earlier will be supplied as soon as the relevant judgements have been rendered.
• Allegations relating to the trade union right of workers at the Colombian Social Insurance Institute and in the teaching profession
  443. 443 In its complaint of 9 March 1977, the Trade Union Confederation of Workers of Colombia (CSTC) alleged that the Colombian Social Insurance Institute (ICSS) had decided in September 1976 to classify medical and other staff as "public employees". According to the CSTC, the latter did not enjoy the right to bargain collectively, the right to organise or other types of trade union rights. As a consequence of the strike called for this reason, over 90 trade union leaders and workers had been dismissed. The CSTC further alleged that the Government had promulgated a statute for the teaching profession which conferred on teachers the status of "public employees", thus restricting their right to bargain collectively and hence their trade union rights.
  444. 444 In its reply of 15 April 1977, the Government stated that it was engaged in a reorganisation of the ICSS and that a commission had been set up mainly to study the matter raised in the complaint. The Government added that it had suspended the statute for the teaching profession and was now undertaking a more complete examination of the situation
  445. 445 When it considered the matter in May 1977, the Committee noted that, under section 414 of the Labour Code, the right to form trade unions was extended to both "official workers" and "public employees", but that the Labour Code nevertheless made a distinction between these two categories in that, under the terms of section 416, unions of public employees, unlike other "official workers", were not entitled to present statements of claims or to conclude collective agreements. The Committee observed that as a result of the measures taken by the authorities, the categories of workers mentioned in the complaint had lost the right to collective bargaining which they had hitherto apparently enjoyed. On the Committee's recommendation, the Governing Body requested the Government to communicate the results of the studies undertaken with respect to the status of the workers at the ICSS and in the teaching profession, indicating the measures taken on the basis of these results and to transmit its observations on the alleged dismissal of over 90 trade union leaders and workers by the ICSS.
  446. 446 In February 1979 the Committee noted that, by a Government Decree No. 1651 of 1977, the right to bargain collectively had been granted to the category of employees of the Colombian Social Insurance Institute to which the CSTC's complaint referred. However, although some time had elapsed, the Government had still not replied to the allegation that over 90 trade union leaders and workers were dismissed because of a strike in 1976 at that Institute. The Committee drew attention to the risks of abuse and threats to freedom of association involved in dismissals arising out of strikes and expressed the view that the adoption of an inflexible attitude in the application of excessively severe sanctions to workers who had participated in a strike could impair the development of labour relations. The Committee stated that it would be desirable for the Government to take measures to promote the reinstatement of the dismissed workers.
  447. 447 As concerns teachers, the Government referred in its reply to the provisions of section 416 of the Labour Code, already mentioned, and pointed out that public employees were free to join and found industrial associations, but subject to the restrictions embodied in the law - that is to say, they might not present statements of claims, but might submit respectful petitions. Nevertheless - continued the Government - 40 per cent of universities had concluded collective agreements with the professors' unions; these were public institutions which of their own free will, by decisions of their boards of governors, had approved these agreements.
  448. 448 On the recommendation of the Committee, at its February-March 1979 Session, the Governing Body noted that the right to bargain collectively had been granted by decree to the employees of the Institute to whom the complaint referred, and requested the Government to forward its observations on the allegations to the effect that over 90 trade union officials and workers were dismissed as a consequence of a strike in 1976, and to supply information on the results of the new study which was being made of the workers in the teaching profession.
  449. 449 In its communication of 9 May 1979 the Government supplies information on the measures taken in a number of regional offices of the ICSS concerning workers who had been dismissed. In certain of these offices the Government states that the workers concerned have been reinstated, with a few exceptions. In one office the labour relationship of 43 officials was terminated, 16 of whom were covered by provisions to protect their trade union activities. Finally, in Bogotá, 176 dismissals were made on justified grounds but 35 officials were reinstated.
  450. 450 The Government explains the grounds for the dismissals by stating that the ICSS is a public institution directed and managed by the State, providing essential services to the public. In addition, the Institute possesses legal personality and administrative autonomy and is independently financed. All strikes or stoppages of work are prohibited in the Institute in accordance with a number of legislative provisions designed to avoid the paralysis of these services.
  451. 451 The Government continues by explaining that, despite the prohibition of strikes in the sector concerned, the number of disputes has increased in recent years in certain unions of official workers classified as public employees, such as teachers, telecommunications employees and social security physicians, and that they have even spread to certain officials in the judicial sector. In many cases the Government has been compelled to strike a balance between the application of sanctions to prevent violence, excesses or the paralysis of the services concerned and the need to improve the economic situation of the workers within the limits imposed by the general situation of austerity.
  452. 452 The Government next explains that once a strike has been declared illegal on the basis of the relevant provisions, the employer may dismiss workers who have taken an active part in it. Trade union immunity is waived, which enables the workers concerned to be dismissed without previous authorisation. The Government points out that, in accordance with national jurisprudence, the fact that a strike has been declared illegal constitutes a justified ground for dismissal. In the present case the dismissal of the workers who had continued to strike was authorised by a resolution of 6 September 1976.
  453. 453 As regards the teachers, the Government recalls, in its communication of 16 April 1979, that Legislative Decree No. 128 of 20 January 1977 to establish a statute for the teaching profession, which had been challenged by the trade unions, has not been applied. The President was given extraordinary powers to prepare a new statute by Act No. 8 of 24 January 1979. As regards the salary and promotion scales, a provision of this Act refers to the standards in force prior to the passing of Legislative Decree No. 128. The Ministry of National Education, in a letter attached to the Government's communication, states that, given the urgent need to pass a new statute, the Minister has appointed a commission, composed of representatives of the Government and the Colombian Federation of the Teaching Profession (FECODE) to draw up a draft Bill. Negotiations with FECODE began as early as September 1978. Nevertheless, continues the Ministry, the draft does not reflect complete agreement between the Government and the teachers, but rather represents a basis for the final talks which are to be held in the coming months. The Government states that it will communicate the new statute as soon as it has been promulgated.

B. B. The Committee's conclusions

1. 454. The Committee takes note of the Government's observations on the measures taken to reinstate in their employment a number of workers who were dismissed on the occasion of the 1976 strike at the Colombian Social Insurance Institute. It expresses the hope that it will be possible to take further measures to promote the reinstatement of the other workers concerned. Finally, it notes the information furnished by the Government regarding the envisaged adoption of a new statute for the teaching profession. The Committee would like to be kept informed of any progress in this area.
2. 455. Regarding the allegations made by the Health Employees' Union (18 May and 11 June 1979), which refer in particular to dismissals of trade union leaders, the Government's reply of 1 August 1979 reached the Office on 29 October 1979. This aspect of the case will be examined by the Committee at its next session.