Informe provisional - Informe núm. 343, Noviembre 2006

558. The Committee last examined this case at its November 2005 meeting [see 338th Report, paras. 738 to 755] and presented a report to the Governing Body.

1. 559. The Trade Union of Workers and Employees in Public and Autonomous Services and Decentralized Institutions of Colombia (SINTRAEMSDES) sent new allegations in communications dated October 2005 and in the communication dated 17 December 2005. SINTRAEMSDES sent further information in a communication dated 22 March 2006.
2. 560. The Government sent its observations in communications dated 21 November 2005, 23 January and 24 July 2006.
3. 561. 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. 562. At its November 2005 meeting, the Committee made the following recommendations regarding this case [see 338th Report, para. 755]:
2. (a) With regard to the alleged dismissal of 54 members of the Trade Union of Public Employees of the Medellín Municipal Sports and Recreation Institute (ASINDER) three days after the union was founded without lifting the trade union immunity, the Committee requests the Government to keep it informed on the appeals proceedings brought in respect of the decision of the ordinary courts rejecting the workers’ reinstatement.
3. (b) With regard to the alleged refusal to register the new committee of the Trade Union of Workers at the Cartagena Communications Company (SINTRATELECARTAGENA) as a result of the company going into liquidation, the Committee requests the Government to send its observations in this regard without delay.
4. (c) With regard to the alleged dismissal of the president of the Trade Union of Workers and Employees in Public and Autonomous Services and Decentralized Institutions of Colombia (SINTRAEMSDES) three days after having entered the new committee on the trade union register, the Committee requests the Government to send its observations in this regard without delay.
5. B. New allegations
6. 563. In its communication of 17 December 2005, the Trade Union of Workers and Employees in Public and Autonomous Services and Decentralized Institutions of Colombia (SINTRAEMSDES) alleges that the departmental government of Antioquia, Colombia, created a state industrial and commercial enterprise, Productora Metalmecánica de Gaviones de Antioquia (PROMEGA), to which a number of workers were transferred, with the initial aim of taking members away from the Trade Union of Workers of Antioquia Department (SINTRADEPARTAMENTO).
7. 564. As the workers transferred to PROMEGA could no longer remain members of SINTRADEPARTAMENTO, given that it is an establishment trade union, they joined SINTRAEMSDES, an industry trade union. PROMEGA began operating using assets provided by the Public Works Office, but the director did not carry out his duties, allowing PROMEGA to decline and thus justifying its immediate liquidation.
8. 565. SINTRADEPARTAMENTO was one of the most militant and effective trade unions in terms of the active defence of the occupational guarantees of its members, in particular those related to the right to organize and collective bargaining.
9. 566. While it was active, SINTRADEPARTAMENTO achieved coverage of all of the official employees by the terms of the collective agreement, especially those regarding stability of employment and procedures.
10. 567. The employment relationship of the employees of the department is unique, given that public servants are appointed by regulation and the workers are subject to a body of regulations applied by the State.
11. 568. However, a contractual relationship exists in the case of official employees who are governed by the terms of a collective agreement, when these exist, or legislation (Act 6a of 1945) which sets out a presumed or hypothetical contract concluded between the parties every six months, unless a different duration is agreed on by the parties.
12. 569. SINTRADEPARTAMENTO had managed to establish an indefinite stability agreement, under which the workers could only be dismissed under the clauses expressly set out in sections 62 and 63 of Decree No. 2351 of 1965 and in full compliance with the agreed procedure, dismissal, moreover, being a disciplinary sanction under the agreement. This means that, in order to terminate an employment relationship with a worker, the department was obliged to follow due process.
13. 570. Through Ordinance No. 10 of 8 June 1993, the Departmental Assembly, an administrative body elected by the people, authorized the Governor to establish a departmental-level industrial and commercial enterprise.
14. 571. The Governor then proceeded to establish the departmental-level industrial and commercial enterprise known as “Productora Metalmecánica de Gaviones de Antioquia – PROMEGA” and, this being an industrial and commercial enterprise, the workers of the Machinery and Production Directorate of the Public Works Office were incorporated into PROMEGA as official employees, while their membership was transferred from the enterprise trade union SINTRADEPARTAMENTO to the Medellín local section of the industry trade union SINTRAEMSDES and the same collective agreement signed by SINTRADEPARTAMENTO was immediately negotiated with SINTRAEMSDES.
15. 572. From the time of its inception until 1996, the enterprise, while it existed, did not operate. In March 1996, the workers went out to lunch as usual and, on their return, found the premises locked with chains and padlocks – a real lockout by the employer, in other words closure without authorization from the competent authority.
16. 573. Faced with non-compliance by the department and inactivity on the part of the directors of PROMEGA, the workers were offered a retirement plan that would extinguish their right to organize.
17. 574. The administrative authority had indeed closed the enterprise without the authorization of the Departmental Assembly or that of the Ministry of Labour, and this authorization was only granted later, through Ordinance No. 27E, authorizing the Governor to wind up the enterprise PROMEGA, before 31 December 1996.
18. 575. As a consequence of the closure, many workers were forced to accept the settlements offered by PROMEGA with the approval of the department. But the employees referred to in this complaint were dismissed and, in the course of demanding their rights, took their case to the ordinary labour courts, where all their rights were rejected by the judges. Despite the fact that there are more than ten tribunals in the city of Medellín, the employees were obliged to undergo a process of conciliation before a single court, but the workers refused to engage in conciliation regarding their retirement from the department, considering that they had been forced into this situation through the use of underhanded tactics and pressure.
19. 576. In its communication of 22 March 2006, SINTRAEMSDES sends further information on the allegations presented with regard to the legal proceedings in which Medellín Public Enterprises was acquitted of the charges brought against it. The complainant organization refers to the said legal proceedings, which involve several employees of Medellín Public Enterprises, and gives a detailed description of the proceedings.
20. 577. In its communication of November 2005, SINTRAEMSDES alleges that, in 1995, the District Public Services Enterprises of Cartagena dismissed all the workers belonging to the trade union. This included Mr. Rafael León Padilla (referred to in the allegations previously examined) and Libardo Pearson Beleño, who, as members of the executive committee, enjoyed trade union immunity. According to the allegations, the legal proceedings brought and the requests for tutela (protection) of constitutional rights were rejected.
21. C. The Government’s reply
22. 578. In its communications dated 21 November 2005, 23 January and 24 July 2006, the Government sends the following observations.
23. 579. With regard to subparagraph (a) of the recommendations, regarding the alleged dismissal of 54 members of the Trade Union of Public Employees of the Medellín Municipal Sports and Recreation Institute (ASINDER), the Government points out that, according to Record No. 370 of 14 December 2004, the Fourth Labour Division of the High Court of Medellín ordered the payment of full compensation – given the impossibility of reinstatement owing to the abolition of posts – for unpaid wages for the period between the date of dismissal and that of the decision, with the adjustments and benefits due, as a direct consequence of the dismissals.
24. 580. The Government adds that compensation was paid in full to the 49 claimants by the Medellín Municipal Sports and Recreation Institute (INDER). No appeal lies against decisions in the second instance under the special trade union immunity procedure, this being expressly prohibited under section 117 of the Procedural Labour Code.
25. 581. Furthermore, with regard to the 52 claims lodged with the administrative disputes jurisdiction by the same number of workers dismissed from INDER seeking the annulment of the decision on the abolition of posts – or restructuring – (Decision No. 017 of 23 January 2001) and dismissal and, consequently, reinstatement in their previous posts, on 12 September 2005 the Second Division of the Administrative Disputes Tribunal of Antioquia rejected these claims.
26. 582. As to subparagraph (b) of the recommendations on the alleged refusal to register the new executive committee of the Trade Union of Workers at the Cartagena Communications Company (SINTRATELECARTAGENA) owing to the fact that the enterprise is in liquidation, the Government states that, through Decision No. 483 of 28 October 2004, the Inspector of the Labour, Employment and Social Security Unit of the Territorial Directorate of Bolívar turned down the request for registration of the executive committee of the trade union organization, based on a precept of the Legal Office of the Ministry of Social Protection, according to which “within public bodies in the process of liquidation, the establishment of trade union organizations and the registration of executive committees are not feasible, given that once the liquidation of a public body has been ordered, the word ‘liquidation’ must be indicated from that moment whenever it is referred to, to all effects and purposes, thus drawing a distinction with respect to the previous body and the only actions which may be undertaken are those directed towards this end. Consequently, the employment relationship of those public servants continuing to work for the body shall only last until the date on which that body ceases to exist, its legal representative lacking the capacity to conclude collective agreements, and hence any action in this regard therefore lacks any validity whatsoever”.
27. 583. According to the Government, workers forming trade unions, establishing locals or electing executive committees within official bodies in liquidation cannot fulfil the aims of the right to organize, in that the legal representatives of the public bodies employing them do not have the capacity to conclude collective labour agreements or improve working conditions, and hence they cannot be entered on the trade union register in these cases, all the more so given that the Ministry of Social Protection is responsible for monitoring and verifying compliance with the legal framework governing labour, and especially collective labour law in the public and private sectors, as stated under sections 3 and 465 of the Substantive Labour Code. The Government adds that appeals for reversal and special appeals were lodged against the abovementioned decision, and the decision not to register the executive committee of SINTRATELECARTAGENA was upheld.
28. 584. The Government also states that, at the stage of examination of evidence, the coordinator warned that the trade union organization did not have the minimum number of members to justify its existence, as certified by the administrative director of TELECARTAGENA. The trade union organization attempted to register a new executive committee with only 12 members, without taking into account the provisions of section 359 of the Substantive Labour Code, which stipulates that, in order to be formed, trade union shall have at least 25 members.
29. 585. As to subparagraph (c) of the recommendations, regarding the dismissal of Mr. Rafael León Padilla, a member of the Trade Union of Workers and Employees in Public and Autonomous Services and Decentralized Institutions of Colombia (SINTRAEMSDES), three days after the registration of the new executive committee, the Government states that, according to the receiver of the Public Services Enterprise of Cartagena, Mr. Rafael León Padilla was an employee of the said enterprise from 25 May 1982 to 4 August 1997, and has been paid his statutory entitlements. Mr. León Padilla’s dismissal, along with that of the 496 employees of the Public Services Enterprise of Cartagena, was due to the liquidation of the Public Services Enterprise of Cartagena, ordered by the Municipal Council of Cartagena in a decision of 5 March 1994. In addition to ordering the dissolution and liquidation of the Public Services Enterprise of Cartagena, the decision orders that the District of Cartagena shall be responsible for the administration, management, execution and provision of public services, empowering the Mayor to that end. Decree No. 1540 of 23 December 1992 changed the legal status of the Public Services Enterprise of Cartagena, transforming it into an industrial and commercial public services enterprise of the district level. The receiver, in accordance with that legislation, issued Decisions Nos. 1294 of December 1995 and 125 of 30 December 1997, abolishing the posts of the staff of the Public Services Enterprise of Cartagena.
30. 586. The Government states that Mr. León Padilla initiated proceedings before the ordinary labour courts, which led to the Eighth Labour Court of the Cartagena Circuit ordering the Public Services Enterprise of Cartagena to pay the sum of US$17,994,540.20 in wages unpaid from the date of retirement, 4 March 1997, until 30 March 1999. This decision was upheld by the Labour Division of the High Court of Cartagena, through a ruling of 13 December 1999. The High Court of Cartagena ruled that the order for the reinstatement of the claimant was inadvisable given that it was physically impossible for the enterprise to reinstate him. For this reason, the court only recognized the claimant’s right to wages covering the period between the date of dismissal and the date on which the said ruling was handed down. The Public Services Enterprise of Cartagena is in liquidation and therefore has no staff members, neither is it providing the services it was created to provide, and hence cannot be required to reinstate a former worker, even if he is a trade union official. In accordance with the decision of 12 March 1999 of the Eighth Labour Court of the Cartagena Circuit, it is clear that the reinstatement action was litigated within the context of the trade union immunity proceedings, and is thus now res judicata. The Government adds that the enterprise paid Mr. León Padilla the following sums: US$19,367,682 in compensation and benefits and US$46,804,059 in accordance with the decision of the Eighth Labour Court of the Cartagena Circuit.
31. 587. As for the case of Mr. Libardo Pearson Beleño, according to the information provided by the receivership, he was granted a retirement pension to be paid in part, according to resolution No. 021 of 18 March 1999, by the national army as from 5 August 1997, i.e. from the day he stopped working. Mr. Libardo Pearson Beleño filed an application against the enterprise, examined by the Labour Tribunal of Cartagena.
32. 588. The Government refers to other questions, not related to the allegations. They are therefore not transcribed.

D. The Committee’s conclusions

1. 589. Concerning subparagraph (a) of the recommendations on the alleged dismissal of 54 members of the Trade Union of Public Employees of the Medellín Municipal Sports and Recreation Institute (ASINDER), three days after the union was founded, with regard to which the Committee requested the Government to keep it informed on the appeals proceedings brought in respect of the decision of the ordinary courts rejecting the workers’ reinstatement, the Committee notes that, the Government, according to Record No. 370 of 14 December 2004, the Fourth Labour Division of the High Court of Medellín ordered the payment of full compensation – given the impossibility of reinstatement owing to the abolition of posts – for unpaid wages for the period between the date of dismissal and that of the decision, with the adjustments and benefits due. The Government adds that compensation was paid in full to the 49 claimants by the Medellín Municipal Sports and Recreation Institute (INDER). The Committee points out, however, that the allegations refer to 54 dismissals. Consequently, the Committee requests the Government to inform it whether the other five trade union members who were dismissed were duly compensated.
2. 590. Concerning subparagraph (b) of the recommendations on the alleged refusal to register the new committee of the Trade Union of Workers at the Cartagena Communications Company (SINTRATELECARTAGENA) as a result of the company going into liquidation, the Committee notes that, according to the Government, the request for registration of the executive committee of the trade union organization was refused by the administrative authority based on a precept of the Legal Office of the Ministry of Social Protection, according to which, within public bodies in the process of liquidation, the establishment of trade union organizations and the registration of executive committees are not feasible, given that, once the liquidation of a public body has been declared, the only actions which may be undertaken are those directed towards this end. Consequently, the employment relationship of those public servants continuing to work for the body shall only last until the date on which that body ceases to exist, its legal representative lacking the capacity to conclude collective agreements, and hence the registration of the new executive committee is invalid. The Committee also notes that the Government adds that, in any case, when the new executive committee was formed, the trade union organization did not have the minimum number of members required by law to enable it to function.
3. 591. In general, the Committee notes that although the legislation stipulates that a body in liquidation may not conclude collective agreements, the members of the executive committee continue to play a fundamental role within the body in liquidation. This role mainly consists of defending workers’ interests during the liquidation process. Furthermore, the Committee recalls that, in accordance with Article 3 of Convention No. 87, the workers shall have the right to elect their representatives in full freedom. As to the Government’s statement to the effect that, at the time of the request for registration of the new executive committee, the trade union organization did not have the minimum number of members required by law to enable it to function, the Committee notes that, according to section 401 of the Substantive Labour Code, a trade union may be dissolved “(d) When the number of members falls below twenty-five (25), in the case of trade unions”. However, subparagraph (e) of the same section stipulates that, in the event of one of the grounds for dissolution applying to a trade union, federation or confederation, the Ministry of Labour and Social Security, or whosoever can demonstrate that they have a legal interest, may request the competent labour judge to proceed with the dissolution and liquidation of the trade union and the cancellation of its registration in the trade union register. Consequently, the Committee requests the Government to ensure that, until the judicial authority hands down a ruling on the substance with regard to the lack of the minimum number of members required for the trade union to function, the executive committee is duly registered, taking into account the aforementioned fundamental role that the trade union plays during the liquidation process.
4. 592. Concerning subparagraph (c) of the recommendations on the dismissal of Mr. Rafael León Padilla, a member of the Trade Union of Workers and Employees in Public and Autonomous Services and Decentralized Institutions of Colombia (SINTRAEMSDES), three days after the registration of the new executive committee, the Committee notes that, according to the Government, Mr. Padilla was dismissed in the context of a restructuring process along with 496 other employees of the Public Services Enterprise of Cartagena, that Mr. Padilla had recourse to the judicial authority in the first and second instance because he enjoyed trade union immunity and that the Labour Division of the High Court of Cartagena, through a ruling of 13 December 1999, ruled that the order for the reinstatement of the claimant was inadvisable given that it was physically impossible for the enterprise to continue its activities, and that the court therefore only recognized the claimant’s right to wages covering the period between the date of dismissal and the date of the ruling, which was complied with by the enterprise through the payment of compensation.
5. 593. With regard to Mr. Libardo Pearson Beleño, the Committeee takes note, according to the Government’s reply, that he retired the day of his dismissal and that he brought a suit against the enterprise whch is now before the court. The Committeee requests the Government to keep it informed of the final result of this case.
6. 594. The Committee notes that, in its new allegations, SINTRAEMSDES refers to the mass dismissal of the workers of the Public Services Enterprise of Cartagena, as well as to the dismissal of Mr. Libardo Pearson Beleño, a member of the executive committee of the trade union organization, along with Mr. Padilla. The Committee notes that the Government has not sent its observations in this respect and requests it to do so without delay.
7. 595. The Committee notes with regard to these allegations that, in one of its communications, SINTRAEMSDES refers to Medellín Public Enterprises and to certain legal proceedings brought against this enterprise. Taking into account the fact that this enterprise is not clearly linked to the allegations presented, the Committee will not proceed to examine these allegations.
8. 596. Concerning the allegations presented by SINTRAEMSDES regarding the creation of a state industrial and commercial enterprise, Productora Metalmecánica de Gaviones de Antioquia (PROMEGA), to which a number of workers of the department of Antioquia formerly belonging to SINTRAEMSDES were transferred and its liquidation, resulting in the dismissal of all the workers belonging to the trade union organization, due to its no longer functioning, the Committee observes that the Government has not sent observations in this respect and requests it to do so without delay.