Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 335, Noviembre 2004

1. 751. The Committee last examined this case at its March 2004 meeting, when it submitted an interim report to the Governing Body [see 333rd Report, paras. 487-509, approved by the Governing Body at its 289th Session].
2. 752. The Government sent its observations in communications dated 9 March and 14 and 26 May 2004.
3. 753. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 754. At its March 2004 meeting, when it examined this case, relating to the default on a collective agreement, anti-union dismissals and harassment and the withholding of trade union dues, the Committee made the following recommendations [see 333rd Report, para. 509]:
2. – With regard to the dismissal of the executive committee of ANTHOC without the judicial authorization required by Colombian legislation, in the framework of the mass dismissals that took place at the San Vicente de Paul Hospital, the Committee requests the Government to provide information on whether the Hospital requested judicial authorization for the dismissal of the executive committee, as laid down in the legislation for the dismissal of trade union officials, and, if this is not the case, that it reinstate the dismissed trade union officials in their positions, without loss of pay.
3. – With regard to the alleged default on the collective agreement concluded between the Ministry of Labour and Social Security and the Social Security Institute with SINTRASEGURIDADSOCIAL, and the suspension of 5,000 workers, the Committee requests the Government to provide information on whether the complainant organization has begun legal proceedings in this respect.
4. – With regard to the allegations relating to the Government’s intention to renegotiate the collective agreement in force in accordance with CONPES document No. 3219, the Committee invites the parties to encourage mutual understanding and good relations and highlights the importance of in-depth discussions on issues of mutual interest in order to arrive, in so far as it is possible, at commonly agreed and accepted solutions. The Committee requests the Government to keep it informed in this respect.
5. – With regard to the allegations submitted by UTRADEC relating to the anti-union harassment of María Teresa Romero Constante, president of SINDICIENAGA, by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga, who refused to negotiate with her in particular, and issued threats to make her leave the trade union, the Committee requests the Government to keep it informed of the outcome of this investigation.
6. – With regard to the allegations relating to the default on the collective agreement as regards the payment of travelling expenses and the withholding of trade union dues, also alleged by UTRADEC, the Committee requests the Government to send its observations without delay.
7. – With regard to the allegations submitted by CUT relating to the dismissal without suspension of trade union immunity and other acts of anti-union harassment against Gloria Castaño Valencia, the Committee requests the Government to keep it informed of the outcome of the administrative investigation that has begun.
8. B. The Government’s reply
9. 755. In its communications of 9 March and 14 and 26 May 2004, the Government states that:
10. (a) With regard to the dismissal of the executive committee of ANTHOC without the judicial authorization required by Colombian legislation, in the framework of the mass dismissals that took place in the San Vicente de Paul Hospital, according to Ruling C-262 of 1995 of the Constitutional Court, “the constitutional and legal guarantees on trade union immunity and security in employment are not affected by the provisions at issue, since the legal consequences with regard to the employment relationship challenged by the plaintiff are derived from a legal definition which is general in nature, by virtue of law, and because the constitutional power to restructure a public entity entails, among other consequences, the legal authority to eliminate posts; accordingly, this Court found against the plaintiff in regard to the alleged violation of the constitutional right to trade union immunity of the workers […] since carrying out a legitimate redundancy, which has been verified as being in conformity with constitutional and legal provisions, obviates the need to seek a judicial determination of trade union immunity as provided in the provision at issue; this is not an absolute limit which might vitiate the ordinary decisions of the legislator in respect of the structure of the national administration”. To sum up, in the case of genuine administrative restructuring exercises, it is not necessary to seek judicial authorization in order to eliminate posts of workers covered by trade union immunity, since the power to restructure state enterprises is based on constitutional provisions themselves, especially when such redundancies are carried out in accordance with constitutional and legal provisions.
11. (b) With regard to the alleged default on the collective agreement concluded between the Ministry of Labour and Social Security and the Social Security Institute with SINTRASEGURIDADSOCIAL and the suspension of 5,000 workers, according to information provided by the president of the Social Security Institute (ISS), the SINTRASEGURIDADSOCIAL trade union did not file legal proceedings concerning the default on the collective agreement, after the administrative investigation was closed by decision dated 23 March 2003 on the grounds that neither the trade union nor the ISS had attended the hearings to which they had been summoned.
12. (c) With regard to the subsequent allegations concerning the Government’s intention to renegotiate the collective agreement in force in the ISS, in accordance with document No. 3219 of the National Council for Economic and Social Planning (CONPES), a number of possible solutions were identified, including structural reform of the ISS, improving management methods and increasing its capacity. These proposals were aimed not at dissolving the Institute, but at ensuring its long-term sustainability. As regards the collective agreement, CONPES document No. 3219 provided that it should be revised before its expiry, and to this end a tripartite commission should be set up consisting, of the ISS, the workers and the Government, in order to find a joint comprehensive solution to the problem. This tripartite commission outlined a number of options, from which divergences emerged clearly between the Government and the ISS, on the one hand, and the trade union, on the other. The former considered that the organization could remain viable if expenditure were reduced and management methods improved, while the trade union maintained that viability could be achieved by increasing incomes, rationalizing external purchasing of health services and administrative and management measures to be carried out by the organization. The commission met eight times without reaching agreement. Finally, on 6 June 2003, the complainant organization stated that it would not attend that day’s meeting and refused to negotiate. As a result, the Government, availing itself of the extraordinary powers conferred on it by Act. No. 790 of 2002, separated the Social Security Institute from the health service provider sector.
13. (d) As regards the allegations relating to the default on the collective agreement in respect of the payment of travel expenses and the withholding of trade union dues owed to SINDICIENAGA by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga in the department of Magdalena, alleged by UTRADEC, the Ministry of Social Protection, through its territorial directorate of Magdalena, opened an administrative investigation and issued decision No. 174 of 12 September 2003 in which it abstained from settling the dispute on grounds of lack of competence, since the decision entailed making a value judgement or the adjudication of rights. An appeal has been lodged against this decision, which is currently before the territorial directorate.
14. (e) With regard to the administrative inquiry opened by the territorial directorate of Cundinamarca concerning the alleged dismissal without lifting trade union immunity and other anti-union acts against Gloria Castaño Valencia, that directorate issued decision No. 2194 of 15 September 2003 in which it abstained from taking administrative measures on grounds of lack of evidence. That decision is now final since the administrative and judicial appeals were rejected.

C. The Committee’s conclusions

1. 756. As regards the dismissal of the executive committee of ANTHOC without the judicial authorization required by Colombian legislation, in the framework of the mass dismissals that took place at the San Vicente de Paul Hospital, the Committee notes that the Government states that, according to Ruling C-262 of 1995 of the Constitutional Court, in the case of genuine administrative restructuring exercises it is not necessary to seek judicial authorization before eliminating posts of workers covered by trade union immunity, since the power to restructure state entities is based on constitutional provisions themselves. The Committee recalls that “one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom” and that “one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct” [see Digest of decisions and principles of the Freedom of Association Committee, paras. 724 and 727]. The Committee observes that this protection is reflected in Colombia in the form of “trade union immunity”, which consists in the impossibility of an employer’s dismissing a trade union official without just cause previously determined by the labour court (sections 405 ff of the Substantive Labour Code of Colombia). Noting that according to the Government’s statement there has been no request to lift the trade union immunity of the trade union officials dismissed from the San Vicente de Paul Hospital, the Committee recalls that in its previous recommendation it had requested the Government to provide information on whether the hospital requested judicial authorization for the dismissal of the executive committee, as laid down in the legislation for the dismissal of trade union officials and, if this is not the case, that it reinstate the dismissed trade union officials in their positions, without loss of pay. In these circumstances, the Committee requests the Government to take steps without delay to ensure the reinstatement of the dismissed trade union officials without loss of pay and to keep it informed in this respect.
2. 757. With regard to the alleged default on the collective agreement concluded between the Ministry of Labour and Social Security and the ISS with SINTRASEGURIDADSOCIAL, in respect of which the Committee had requested the Government to provide information on whether the complainant organization had begun legal proceedings in this respect, after the administrative investigation was closed by decision of 23 March 2003 on the grounds that neither the trade union nor the ISS had attended the hearings to which they were summoned, the Committee notes the information provided by the Government to the effect that the trade union did not file any legal proceedings.
3. 758. With regard to the allegations relating to the Government’s intention to renegotiate the collective agreement in force in the Social Security Institute (ISS) in accordance with CONPES document No. 3219 containing proposals aimed at restructuring the institution, the Committee notes that according to the recommendations made in the framework of that document, a tripartite commission was set up, comprised of members of the Ministry of Social Protection, the ISS and the trade union, in order to achieve a joint comprehensive solution. This commission met on eight occasions, during which a divergence of views emerged between the trade union, on the one hand, and the ISS and the Ministry of Social Protection, on the other. The Committee notes that, according to the Government, as a result of these divergences, SINTRASEGURIDADSOCIAL refused to attend the meeting convened for 6 June 2003 and to continue negotiations in the tripartite commission, and as a result the Government separated the ISS from the health service provider sector, in accordance with the extraordinary powers conferred upon it by Act No. 790 of 2002. The Committee requests the complainant organization to state the reasons why it withdrew from negotiations.
4. 759. With regard to the allegations relating to the default on the collective agreement as regards the payment of travel expenses and the withholding of trade union dues by the Institute of Traffic and Municipal Transport of Ciénaga in the department of Magdalena, alleged by UTRADEC, the Committee notes that the territorial directorate of Magdalena opened an administrative investigation and issued decision No. 174 of 12 September 2003, in which it abstained from settling the dispute on grounds of lack of competence, and that an appeal had been lodged against this decision and was now before the territorial directorate. The Committee considers that the powers of the administrative authority should include verifying whether or not the alleged acts occurred, without this entailing any value judgement, in particular given that collective agreements have force of law under Colombian legislation. The Committee requests the Government to keep it informed of the outcome of the appeal lodged against the administrative decision and expects that steps will be taken to guarantee compliance with the collective agreement in respect of the withholding of trade union dues and the payment of travel expenses to trade union officials.
5. 760. With regard to the administrative inquiry initiated by the territorial directorate of Cundinamarca concerning the allegations presented by the CUT on the dismissal without the lifting of trade union immunity and other anti-union acts against Gloria Castaño Valencia, the Committee notes that that the directorate issued decision No. 2194 of 15 September 2003, in which it abstained from taking administrative measures on grounds of lack of evidence and that, according to the Government, that decision is now final since the administrative and judicial appeals were rejected.
6. 761. With regard to the allegations presented by UTRADEC concerning the anti-union harassment against María Teresa Romero Constante, president of SINDICIENAGA, by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga, which refused to negotiate with her in particular, and issued threats to make her leave the trade union, the Committee notes that the Government has not sent observations on this subject. The Committee once again requests the Government to keep it informed of the outcome of the administrative investigation referred to in its previous examination of the case.