Informe provisional - Informe núm. 319, Noviembre 1999

1. 180. The complaint in the present case is contained in a communication dated 23 February 1999 from the Association of Public Servants employed by the Health Service of the Armed Forces and National Police (ASEMIL). ASEMIL sent additional information in a communication dated 16 April 1999.
2. 181. The Government sent partial observations in a communication dated 15 September 1999.
3. 182. 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. The complainant's allegations

1. 183. In its communication of 23 February 1999, the Association of Public Servants employed by the Health Service of the Armed Forces and National Police (ASEMIL) states that it represents workers employed by the health service used by the armed forces and the national police. It adds that on 7 May 1997, the Ministry of Defence and representatives of ASEMIL signed an agreement containing provisions relating to employment stability, prohibition of reprisals, wages, rights of association and the creation of a committee to follow up these measures. Most of the provisions in the agreement were disregarded by the Government. This was reflected in a failure to implement a pay harmonization review, interference with the right of association and refusal to grant trade union licences.
2. 184. The complainant indicates that the Deputy Minister of Defence announced on 20 April 1998 the dismissal of the trade union's officers and, in another act of interference, challenged the Association's new statutes (the Ministry of Labour dismissed the challenge) and suspended deductions from wages of union membership dues, thereby creating economic difficulties for the organization. It adds that while the deductions have been restored, the administration has done nothing with regard to the outstanding dues.
3. 185. In this regard, the complainant alleges that from early April 1998 onwards, following the failure to implement the agreement and pay cuts, ASEMIL launched a series of national protests and sent letters to various authorities which led to continuous harassment of the union members and officials through the deployment of the military at workplaces from 1 April onwards. This took the form of verbal abuse of anyone participating in the protests, threats of disciplinary action against trade unionists for their legitimate union activities, the dissemination and display of defamatory statements regarding trade union activists and incitement of the general public to action against them, and the release of addresses of private residences and consulting centres to which only hospital authorities and the police have access. These acts were particularly serious in Cartagena.
4. 186. Specifically, ASEMIL states that on 20 and 21 May a nationwide protest took place with a particularly large turnout at the Naval Hospital at Cartagena and at the Central Military Hospital in Bogotá. The Government immediately deployed military personnel at these centres, deploying armed soldiers at facilities including operating theatres; demonstrating workers were physically assaulted, tear gas was used indiscriminately, causing harm to hospital patients as well as demonstrators. ASEMIL emphasizes that the stoppage did not affect essential services and was confined to purely administrative activities and elective care which in no case affected the lives or safety of patients.
5. 187. According to the complainant, the Director of the Central Military Hospital petitioned the Ministry of Labour to declare illegal what it called the "stoppage or cessation of activities", requested authorization to dismiss any workers who had participated in the stoppage, and sought the removal of the trade union privileges which protected some individuals and the freedom to remove all workers who persisted in the stoppage for whatever reason. Similar requests were made by the Cartagena Naval Hospital.
6. 188. ASEMIL states that the Ministry of Labour and Social Security, through resolutions Nos. 1293 and 1320 of 1998, declared the stoppages at the Central Military Hospital and the Cartagena Naval Hospital to be illegal, but rejected the other claims made by the applicants, i.e. the dismissals were not authorized. According to the complainant, the resolutions declaring the stoppages to be illegal were issued without any guarantee of due process and disregarded the evidence of inspectors' reports indicating that emergency services, cardiology, oncology and other areas were not affected and essential services were maintained. They also disregarded the fact that in certain areas the army prevented workers from entering the premises.
7. 189. The complainant adds that during the trade union actions of 20 and 21 May and those during subsequent days and weeks, other serious violations occurred. These are summarized as follows: (i) military occupation of workplaces by armed soldiers whose presence disturbed patients and disrupted the work of essential service staff; (ii) placards referring to the protest (inside the Central Military Hospital) were destroyed in the early morning of 22 May by marines who verbally and physically attacked some of the union's members; and (iii) there was harassment of trade unionists who remained in the encampment outside the Central Military Hospital compound and of trade unionists who organized protest marches inside. During the harassment actions, military police units made indiscriminate and reckless use of water cannons and tear gas not only against the trade unionists but also against visitors, causing harm to some of the patients. As a result of these actions the following union members were injured: Gloria Arias Arias; Angela Rocío Ramírez; José Noé Montenegro Sánchez; Ofelia González Pulido; Luz Mary Tusso Beltrán and Luz Castañeda Orjuela. Forty-two union members in all were injured and as a result 100 staff days were lost due to incapacity.
8. 190. The complainant alleges that the union's entire executive board was dismissed and all the dismissed workers were denied access to the premises, the purpose of this action being to isolate them from union bases. (The complainant supplies the names and job titles of the union officials concerned).
9. 191. Lastly, the complainant indicates that in dismissing the union officials and members, the Government violated Conventions Nos. 87 and 98 and that: (1) the dismissals of the ASEMIL members were based on the resolutions of illegality issued by the Ministry of Labour and Social Security; (2) at the Cartagena Naval Hospital more than 60 of the union's members were docked one month's pay, although according to the Ministry's resolution the stoppages lasted only two days; (3) at the Central Military Hospital, more than 200 union members were docked up to one week's wages which was not in compliance with the Ministry's resolution; (4) many of the workers whose wages were docked in this way went on working precisely because they were involved with essential services; and (5) these actions of interference, as well as other forms of pressure and threats, led to many resignations from the union.
10. 192. In its communication of 16 April 1999, ASEMIL alleges that the Ministry of Defence is still refusing to discuss the demands of the more than 1,000 people employed in the country's 144 dispensaries who are represented by ASEMIL, arguing that it is not obliged to do so because the employees concerned are public employees; in doing so, it is disregarding ILO Convention No. 98 and Act No. 411 of 1997 approving Convention No. 151, which expressly gives such workers the right of negotiation.
11. 193. As regards the dismissal of 14 members of the union's national executive and the Cartagena branch executive, ASEMIL states that although the Constitutional Court reviewed three of the 14 actions for protection (tutela) brought by the union and ruled in favour of the workers by ordering their immediate reinstatement, the Ministry of Defence and the Director of the Central Military Hospital have refused to consider reinstating the other union officials, thereby adding violation of the fundamental right of equality to the many other abuses that have occurred.
12. 194. The complainant also alleges that it has been declared a "military object" by armed groups and that, thus far, there has been no effective response to the grave threats that have been made. ASEMIL adds that on 22 February last, an attempt was made on the life of Dr. María Clara Baquero, President of ASODEFENSA (an industry trade union organization in the Ministry of Defence), who was wounded in the attack. (This allegation is examined in the context of another allegation against the Government of Colombia, in Case No. 1787).

B. The Government's reply

1. 195. In its communication of 15 September 1999, the Government states that the Ministry of Labour and Social Security, through resolution No. 000076 of 22 January 1999, reserved judgement on the alleged violation of section 400 of the Substantive Labour Code (concerning deductions of trade union dues), leaving it to the parties concerned to seek a resolution through the ordinary courts. In accordance with the decision (auto) of 26 July of this year, the ruling became enforceable to the extent to which the trade union privileges argued come under the exclusive jurisdiction of the ordinary courts.
2. 196. Resolution No. 000076 of 22 January 1999 contains the following provisions regarding trade union membership dues: (a) the Ministry reserves judgement on the allegations made by ASEMIL against the Ministry of Defence (Health Service of the Armed Forces and Central Military Hospital); following the closure of the National Institute of Health it was not possible to determine if its obligations were passed on to the armed forces' health service, given that the reforms of ASEMIL statutes was notified in March 1998; (b) the resolution stated that the bodies in question did not violate the right of association by requiring that their regulations be observed by ASEMIL officials in order to enter the premises; on 25 February of this year, this ruling became enforceable; (c) as regards the non-implementation of the pay review, this was communicated to the Central Hospital which maintains that the review has been implemented but that it has not been possible to include the support and general service workers whose jobs cannot be covered by Decree No. 194 of 30 January 1997; and (d) in the face of the alleged refusal to negotiate, through resolution No. 2942 of 21 December 1998, it was stated that there was no such refusal. The decision became definitive through resolution No. 001011 of 10 May 1999.
3. 197. In conclusion, the Government maintains that all the issues raised by the complainant have been resolved in accordance with Colombian labour laws and regulations, with the exception of the matter of the wage review which is still pending. The next report should confine itself to that question, in the absence of convincing reasons not to do so.

C. The Committee's conclusions

1. 198. The Committee notes that in the present case the complainant alleges that from April 1998 onwards, it launched a series of national protest actions following non-implementation of an agreement and pay cuts, which in turn resulted in continuous harassment of trade union members and officials. Specifically, the complainant alleges that: (1) the Ministry of Defence failed to implement an agreement signed with ASEMIL on 7 May 1997 containing provisions relating to employment stability, prohibition of reprisals, wages, etc.; (2) the Ministry of Defence challenged the new statutes of ASEMIL (the complainant states that the Ministry of Labour dismissed the challenge); (3) deductions from wages of union membership dues were temporarily stopped; (4) workplaces at the Cartagena Naval Hospital and the Central Military Hospital in Bogotá were occupied by the military during the days of national protest (20 and 21 May 1998); (5) placards referring to the protest movement were destroyed at the Central Military Hospital in Bogotá and trade unionists were assaulted with the result that 42 of them were injured (the complainant supplies the names of six of these workers and gives details of the injuries and resulting loss of production capacity); (6) members of the union's executive board were dismissed (the complainant supplies the names and job titles of 14 of these) following the ruling that the stoppages in the Central Military Hospital and the Cartagena Naval Hospital were illegal (the Constitutional Court ordered the reinstatement of three of the dismissed workers); (7) more than 60 union members at the Cartagena Naval Hospital were docked one month's wages and 200 members at the Central Military Hospital were docked one week's wages, although the stoppages lasted only two days; and (8) the Ministry of Defence refused to discuss the demands of more than 1,000 dispensary workers.
2. 199. As regards the allegation regarding the temporary suspension of trade union membership dues, the Committee notes that according to the Government, the Ministry of Labour and Social Security issued a resolution reserving judgement on the alleged violation of section 400 of the Substantive Labour Code (concerning deduction of union membership dues), given that, following the closure of the National Institute of Health, it was not possible to determine whether its obligations were passed on to the armed forces' health service, and that it would leave it to the parties concerned to apply to the courts for a ruling. In this regard, the Committee notes that the deductions of union membership dues for the complainant organization have been restored and requests the Government to take measures to ensure that in future the employer does not decide unilaterally to suspend deductions of union membership dues of ASEMIL members.
3. 200. Lastly, the Government refers to a ministerial resolution in which it denies that there was any refusal to negotiate. In this context, the Committee deplores that the Government has not communicated its observations concerning the other allegations presented and any information which it has supplied has been insufficiently detailed (for example, it does not provide a copy of the text of the resolutions mentioned in its replies, nor does it indicate to which specific allegation each reply refers). Under these circumstances, the Committee requests the Government to send without delay its observations on all the pending allegations.