Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 355, Noviembre 2009

1. 401. The Committee last examined this case at its November 2008 session and submitted a report to the Governing Body [see 351st Report, paras 381–425, approved by the Governing Body at its 303rd Session]. The Cali Municipal Enterprises Union (SINTRAEMCALI) sent new allegations in communications dated 10 December 2008 and 22 January, 12 February, 19 and 24 March, and 12 June 2009.
2. 402. The Government sent its observations in communications of 24 November and 16 December 2008 and 20 January, 16 March and 21 and 23 July 2009.
3. 403. 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. 404. In its previous examination of the case, the Committee made the following recommendations [see 351st Report, para. 425]:
   • (a) With regard to the cases concerning the lifting of the trade union immunity of trade union leaders as part of the restructuring process of the National Service for Training, the Committee requests the Government to keep it informed of the final outcome of the proceeding involving Pedro Sánchez Romero.
   • (b) With regard to the refusal of SENA to bargain collectively, the Committee, recalling that, even though collective bargaining in the public service can be subject to specific modalities, the right to bargain collectively has been recognized in general for all public employees on the basis of the ratification of Conventions Nos 151 and 154, requests the Government to keep it informed of developments regarding the decree to promote the collective bargaining of public employees.
   • (c) With regard to the new allegations regarding the refusal to grant trade union leave and other facilities that had been agreed on, such as plane tickets to attend trade union meetings, trade union premises and notice boards, the Committee, recalling the importance of providing facilities for the proper conduct of trade union activities, requests the Government to take the necessary measures to guarantee that the trade union can carry out its activities properly with the necessary facilities, as it has been doing until recently.
   • (d) The Committee requests the Government to keep it informed of the disciplinary proceedings under way in respect of six trade union leaders of SINDESENA.
   • (e) As to the declaration of illegality by the administrative authority concerning a permanent assembly (a work stoppage), held by SINTRAEMCALI within EMCALI, which led to the dismissal of 45 trade union members and six leaders for their alleged participation in the work stoppage (Decision No. 1696), the Committee requests the Government to keep it informed of the final outcome of the appeal for clarification which is pending.
   • (f) With regard to the investigation launched before the Office of the Attorney-General into the violent events that took place during the permanent assembly, the Committee expresses serious concern regarding the fact that the Government has not provided specific information on the investigation into the violent events that took place in EMCALI in May 2004, recalls the importance of conducting the investigations without delay and urges that the investigation be concluded in the near future and that it will as a result be possible to identify and punish those responsible.
   • (g) With regard to the launch of 462 disciplinary proceedings and the pressure put on workers not to discuss trade union issues under threat of dismissal, the Committee once again requests the Government to take the necessary measures to guarantee that the workers of EMCALI can exercise their trade union rights freely and without fear of reprisals, to carry out an independent investigation that has the confidence of the parties involved (such an investigation could be carried out by the judicial authority) into the pressure, threats and disciplinary proceedings against the workers and to keep it informed in this regard.
   • (h) With regard to the latest communication of the ASOPROFE-UPTC concerning threats against the President of the trade union, the Committee requests the Government to take the necessary measures so that an investigation is carried out in this respect and that adequate protection is provided to Mr Luis Diaz Samboa. The Committee requests the Government to keep it informed in this respect.

B. New allegations

1. 405. In its communications of 10 December 2008 and 22 January, 12 February, 19 and 24 March, and 12 June 2009, SINTRAEMCALI alleges that, on 19 March 2009, paid union leave was suspended. Furthermore, the enterprise supports another executive board, disregarding the democratic elections that had been carried out in compliance with the legal requirements. In addition, there is a risk that its resources may be judicially assigned, thereby depriving it of its means of survival. The complainant further confirms that the allegations remain pending. It indicates that the enterprise has no intention of settling the existing dispute or of reinstating the dismissed workers. Nevertheless, SINTRAEMCALI makes it clear that it is prepared to settle the matter through conciliation and tripartite negotiation with the Government.
2. 406. The complainant organization adds that no investigation has been launched to date into the violent events that took place in May 2004. Only administrative proceedings were initiated, leading to the dismissal of 51 workers by Decision No. 1696 of 2 June 2004, which was declared null and void by the Council of State in Decision No. 3536 of September 2008. The enterprise filed an appeal for clarification against that decision, which was rejected on 23 October 2008.

C. The Government’s reply

1. 407. In its communications of 24 November and 16 December 2008 and 20 January, 16 March and 21 and 23 July 2009, the Government sent the following observations.
2. 408. With respect to subparagraph (a) of the recommendations, with regard to the case concerning the lifting of the trade union immunity of Mr Pedro Sánchez, the Government indicates that the proceedings are under way in the Fourth Labour Court of the Cartagena Circuit, pending a decision, and that the discussion of the evidence concluded on 14 August 2008. On 15 December 2008, the Fourth Labour Court of the Cartagena Circuit issued a decision upholding the waiver of the time bar, which was appealed before the Labour Tribunal of the High Court of Cartagena Judicial District. When information is received regarding the final outcome of this appeal, it will be sent to the Office.
3. 409. With regard to subparagraph (b) of the recommendations, the Government indicates that Decree No. 535 of 24 February 2009, concerning section 416 of the Labour Code, sets out the procedure to be followed with regard to collective bargaining in the public sector. The Government supplies a copy of the decree in question.
4. 410. With regard to subparagraph (c) of the recommendations on the allegations concerning the refusal to grant trade union leave, the Government states that, according to information provided by the National Service for Training (SENA), union leave has been granted. The Government recalls that, in its communication of 10 October 2008, it included a table containing information on the trade union leave granted to the National Union of Public Employees of the National Service for Training (SINDESENA) leaders. With regard to the airline tickets, the amount has been repaid in full to the union’s executive board and supporting documentation has been provided. Furthermore, the Government indicates that the administrative authority paid for the members of SINDESENA to travel by air to the 11th Educational Congress as proposed by SINDESENA and the Educational Studies and Vocational Training Circle (CEPF). The Government has attached SENA’s response. Accordingly, the Government considers that the present allegations do not merit further examination, given that SENA has provided documentation to prove that leave was granted and that the airline tickets of SINDESENA members were approved. The Government also reports that, according to information provided by the administrative authority, no investigation is being carried out against SENA for refusing to grant trade union leave.
5. 411. As for subparagraph (d) of the recommendations relating to the disciplinary proceedings under way, the Government reports, with regard to the proceedings initiated against Mr Aleyda Murillo, that, according to the information provided by the Domestic Disciplinary Monitoring Board, the disciplinary proceedings were shelved in August 2006 and September 2007. The Government adds that the proceedings concerning Ms María Inés Amézquita, Mr Jesús Horacio Sánchez, Mr Carlos Arturo Rubio and Mr Gustavo Gallego, public servants of the Quindío region, are under way. These are being conducted independently from the administration; in other words, there is no interference by the administration in the decision-making.
6. 412. With regard to subparagraph (e) of the recommendations on the appeal for clarification, which is pending against the Council of State’s decision to annul Decision No. 1696, which declared the work stoppage within Cali Municipal Enterprises (EMCALI) to be illegal, the Government indicates that it will send the corresponding observations when it receives information on the final outcome of this appeal. As regards the declaration of illegality, the Government indicates that the sentence announced by the Council of State is still not definitive given that appeals for annulment and rights of petition have been made.
7. 413. The Government states that the Council of State’s decision, which declared the illegality of Decision No. 1696 of 2 June 2004, rejected the other claims made by the claimants, including the request for the reinstatement of the workers dismissed by EMCALI. Indeed, when reaching this decision, the Council of State considered the following:
   • (a) The legal objection against the act declaring the illegality of a collective work stoppage does not give the judge who issued the act direct competency concerning the action initiated by the employer once an administrative decision has been taken by the labour authority. Indeed, the direct effect of the declaration of illegality is that the employer can decide whether or not to continue with administrative and legal actions that affect the employment relationship of those workers involved in the illegal work stoppage. Therefore, given that the legal personality of the trade union was not suspended, workers dismissed or trade union immunity lifted as a result of the declaration of illegality, the annulment of this administrative act does not, per se, affect the legal implications of a situation not related to the act in question, given that, as highlighted, the direct effect of this declaration is that the employer can decide whether or not to continue with procedures that would affect the employment relationship of workers.
     • It is evident that, as a result of the annulment of the act decreeing the illegality of a work stoppage, the employer may terminate an employment contract with just cause, or the legal personality of the trade union may be affected if it promoted the illegal work stoppage. However, these matters are resolved through legal and administrative channels, and, in such discussions, the competency of each authority includes the possibility of evaluating facts surrounding the events. Accordingly, the annulment of the administrative act that declared the illegality of the stoppage does not necessarily annul the other effects on the employment relationship inasmuch as these will also depend on the material conditions of each case, in such a manner that the petitions filed by the trade union bringing this lawsuit imply unjustified interference in the matters of other legal and administrative authorities.
   • (b) The application for the annulment of administrative acts, as described in section 85 of the Administrative Disputes Code, in addition to implying the possibility of invalidating the opposed act, gives the petitioner the opportunity to request the restoration of rights and compensation for any damages that may have been caused by the annulled administrative act. These three elements are part of the action and, owing to their nature, keep their independence, while interacting according to the evidence furnished during the proceedings, of course in full knowledge of the fact that the restoration of rights and granting of damages are legally viable only when the act is declared null and void. This definition aims to highlight the fact that the annulment of the administrative act does not necessarily lead to the restoration of rights or to damages insofar as these latter two components depend on the circumstances that come to light during the case (...).
8. 414. The Government indicates that it can be deduced from the above that the annulment of the administrative act does not, ipso facto, lead to the restoration of the rights at issue in the labour proceedings currently under way. The trade union’s statement that the restoration of rights is automatic is incorrect, given that this was rejected by the Council of State and, accordingly, the matter should be the subject of legal debate in each case. The restoration of rights was unsuccessful because the Council of State considered that acts of vandalism had occurred and damage sustained at EMCALI. In its opinion, such issues should be examined by the labour courts that are dealing with the proceedings initiated by the former workers who participated in the work stoppage.
9. 415. Given that the sentence handed down by the Council of State is not definitive, it is not possible to refer to a lack of substance, a situation that can occur, although not always, when a legal text is declared null and void. However, when the declaration of illegality refers to a specific administrative text, even if it is annulled on grounds of form and substance and does not lead to the restoration of rights in labour proceedings filed in parallel, the presiding judge must analyse facts and rights on a case-by-case basis.
10. 416. The Government sent the reply from the EMCALI representative, along with a communication containing an account of events, a DVD and a USB memory stick.
11. 417. With regard to subparagraph (f) of the recommendations on the investigation under way before the Office of the Attorney-General into the violent events that took place during the permanent assembly in EMCALI in May 2004, the Government sent a copy of Decision No. 234 of the Office of the Public Prosecutor No. 58 of the Cali City Economic Resources Unit No. 1, which decided not to initiate criminal proceedings for such events, given the impossibility of identifying those responsible.
12. 418. With regard to subparagraph (g) of the recommendations on the launch of 462 disciplinary proceedings as a result of the work stoppage and the pressure placed on workers not to discuss trade union issues under threat of dismissal, the Government indicates that the Government of Colombia guarantees the free exercise of trade union rights and freedom of association. A range of actions (both administrative and legal) can be filed by Colombian workers within the terms prescribed by law. Furthermore, justice in Colombia has to be sought, which means that the party claiming to be affected has to file a complaint before a court. The Government also sent the statement of the enterprise’s representative, according to which the Political Constitution of Colombia establishes that the Office of the AttorneyGeneral is the highest decision-making body of the Public Prosecutor’s Office and is an independent procedural body of the executive, legislative and judicial branch of the public authorities. One of its constitutional duties is to “intervene in proceedings, and before judicial or administrative authorities, whenever necessary to protect the legal order, public resources or fundamental rights and guarantees” (section 277, paragraph 7). On this basis, EMCALI requested the provincial prosecutor of Cauca Valley to take note of the ILO recommendation and to conduct inspections at EMCALI. The Office of the AttorneyGeneral carried out an independent investigation and determined that the 462 disciplinary proceedings denounced by SINTRAEMCALI, relating to the events that occurred between 27 and 30 May 2004, were not initiated and that the enterprise gives its workers and their union officials complete freedom to carry out their union activities.
13. 419. With regard to subparagraph (h) of the recommendations regarding the threats against the President of the Academic Trade Union Association of Lecturers of the University of Pedagogy and Technology of Colombia (ASOPROFE-UPTC), the Government reports that it has referred the allegations to the Office for the Defence of Human Rights to launch the necessary inquiries. The Government requests that these allegations be transferred to Case No. 1787.

D. The Committee’s conclusions

1. 420. The Committee takes note of the new allegations presented by SINTRAEMCALI and of the Government’s observations regarding the matters that are pending.
   • Restructuring of SENA
2. 421. With respect to subparagraph (a) of the recommendations with regard to the case concerning the lifting of the trade union immunity of Mr Pedro Sánchez Romero as part of the process of restructuring SENA, the Committee takes note of the Government’s information, according to which the case has been brought before the Fourth Labour Court of the Cartagena Circuit, which decided to uphold the time bar, a decision which was appealed before the High Court of the District of Cartagena. The Committee requests the Government to keep it informed of the final outcome of this case.
3. 422. With regard to subparagraph (b) of the recommendations concerning the refusal of SENA to bargain collectively with SINDESENA, the Committee notes with interest the adoption, on 24 February 2009, of Decree No. 535 concerning section 416 of the Labour Code, which sets out the procedure to be followed with regard to collective bargaining in the public sector, and requests the Government to take the necessary measures to ensure that the trade union organization is able to negotiate collectively within SENA.
4. 423. As for subparagraph (c) of the recommendations concerning the allegations regarding the refusal to grant trade union leave and other facilities that had previously been granted to the trade union leaders, the Committee notes that, according to the Government, trade union leave has been granted by SENA and, with regard to the facilities, the cost of airline tickets for the entire executive board has been covered for various meetings and training sessions and that the Government has attached the corresponding documentation. For this reason, the Committee will not pursue its examination of these allegations.
5. 424. With regard to subparagraph (d) of the recommendations relating to the allegations that many disciplinary proceedings have been initiated in various regional offices against trade union leaders and members for their participation in activities planned by the trade union, the Committee notes that, according to the Government, the disciplinary proceedings concerning Mr Aleyda Murillo and Mr Wilson Arias Castillo have been shelved. With regard to the proceedings concerning Ms María Inés Amézquita, Mr Jesús Horacio Sánchez, Mr Carlos Arturo Rubio and Mr Gustavo Gallego, the Committee notes that these are still under way. The Committee expects that the trade union rights of the leaders will be fully respected and that these proceedings will be concluded rapidly. The Committee requests the Government to keep it informed in this regard.
   • EMCALI
6. 425. As to subparagraph (e) of the recommendations regarding the declaration of illegality by the administrative authority concerning a permanent assembly held by SINTRAEMCALI within EMCALI, which led to the dismissal of 45 trade union members and six union leaders, the Committee recalls that this declaration (contained in Decision No. 1696 of 2004) was the subject of an appeal before the Council of State which was upheld, and that a decision was made in favour of its annulment which was, in turn, the subject of an appeal for clarification by the enterprise. The Committee notes that, according to SINTRAEMCALI, this appeal for clarification was rejected by the Council of State on 23 October 2008 and that SINTRAEMCALI has supplied a copy of this decision.
7. 426. The Committee notes that according to the Government, the declaration of illegality of Decision No. 1696 does not lead to the automatic reinstatement of the dismissed workers, a request rejected by the Council of State, but rather implies that this matter should be resolved for each legal proceeding initiated by the dismissed workers and that, on the other hand, the sentence of nullity is still not definitive, given that the enterprise EMCALI filed an appeal for annulment and rights of petition against the declaration of illegality, which is still pending.
8. 427. In such circumstances, taking into account that: (1) Decision No. 1696 of 2004, which declared the permanent assembly illegal, and under which the 45 trade union members and six union leaders were dismissed, was declared null and void by the Council of State; (2) the appeal for clarification against this Council decision was rejected (even though the appeal filed by the enterprise is still pending); (3) there are no criminal charges of any kind against the trade unionists for violent acts; and (4) more than five years have elapsed since the events occurred, the Committee requests the Government to consider taking the necessary measures to ensure the reinstatement of the 45 trade union members and six union leaders who were dismissed, until the ordinary judicial authority pronounces definitive rulings. The Committee requests the Government to keep it informed in this regard.
9. 428. With regard to subparagraph (f) of the recommendations on the investigation launched before the Office of the Attorney-General into the violent events that took place during the permanent assembly in EMCALI in May 2004, the Committee notes that, according to the complainant organization, an investigation involving its members has not yet been launched into these events. The Committee also notes that, for its part, the Government indicates that the Office of the Public Prosecutor No. 58 of the Cali City Economic Resources Unit No. 1 decided, through Decision No. 234 of 27 October 2004, not to initiate criminal proceedings relating to such events, given the impossibility of identifying those responsible.
10. 429. With regard to subparagraph (g) of the recommendations relating to the launch of 462 disciplinary proceedings as a result of the permanent assembly and the pressure placed on workers not to discuss trade union issues under threat of dismissal, the Committee recalls that it requested the Government to carry out an independent investigation, which could be carried out by the judicial authority, into the pressure, threats and disciplinary proceedings against the workers of EMCALI. The Committee notes that, according to the information from the enterprise’s representative sent by the Government, in accordance with the report of the Attorney-General, the proceedings in question were not initiated and the enterprise allows the trade union’s officials and members to fully exercise their trade union rights. The Committee requests the Government to send a copy of the Attorney-General’s report, which was not enclosed.
11. 430. Furthermore, recalling that according to the Government, since 5 September 2007, the matters raised in this case are also being examined by the Special Committee on the Handling of Cases referred to the ILO (CETCOIT) [see 351st Report, para. 409], and taking note of the fact that the trade union organization has indicated its willingness for, and openness to, conciliation, the Committee invites the parties to examine ways to give effect to its present recommendations within the framework of the Special Committee.
    • UPTC
12. 431. With regard to subparagraph (h) of the recommendations on the threats against the President of ASOPROFE-UPTC, the Committee takes note of the Government’s information, according to which the allegations have been referred to the Office for the Defence of Human Rights to conduct the necessary inquiries. For its part, the Government requests that these allegations be transferred to Case No. 1787. The Committee urges the Government to take the necessary measures without delay to ensure that the safety of Mr Luis Díaz Gamboa, the President of ASOPROFE, is guaranteed and to ensure that an investigation is carried out in this respect. The Committee requests the Government to keep it informed in this regard within the context of Case No. 1787.