Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 346, Junio 2007

396. The complaint is contained in a communication dated 9 February 2006 presented by the Trade Union Association of Public Health Professionals (ASDESALUD). The Union of Public Officials of the University Hospital of Valle ESE (SINSPUBLIC) and the Single Confederation of Workers (CUT) presented new allegations in communications dated 3 and 4 April 2006, respectively. The CUT and ASDESALUD presented additional information in communications dated 27 April and 5 May, respectively. Finally, ASDESALUD sent additional information in a communication dated 17 July 2006.

1. 397. The Government sent its observations in a communication dated 27 June 2006.
2. 398. 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. The complainants’ allegations

1. 399. In its communications dated 9 February, 5 May and 17 July 2006, ASDESALUD states that Decree No. 1750 of 2003 split the Social Security Institute (ISS) into seven state social companies (ESEs), including the Rafael Uribe and Uribe State Social Company. The split meant that the workers of the former Institute who had been public officials became public employees; as a result they no longer have the right to collective bargaining and are not covered by the signed collective agreement.
2. 400. ASDESALUD was founded on 3 July 2003, for the purpose of coping with the damaging effects of the new situation. It is affiliated to the National Union of State Workers and Public Services (UNETE) and the General Confederation of Workers (CGT).
3. 401. In view of the illegal act committed against the workers no longer covered by the collective agreement in force, an appeal of unconstitutionality was lodged against Decree No. 1750 of 2003. The Constitutional Court, in judgement C-314 of 2004, ruled that altering the legal employment relationship of the workers at the ISS when it changed from a state industrial and commercial company to a state social company (changing them from public officials to public employees) was legal. However, the Court also stated that the collective labour agreement is binding on the parties concerned, and a source of acquired rights for the workers covered by it, at least while the agreement remains in force. The collective agreement must therefore continue to apply to the public employees of the ESEs that previously benefited from it at the ISS, at least for as long as it remains in force.
4. 402. The complainant organization alleges that, notwithstanding the above, the ESEs refuse to apply the collective agreement, arguing that the ESEs established by Decree No. 1750 of 2003 were not, and are not, parties to the collective agreement, because they did not exist when it was signed.
5. 403. The complainant organization adds, moreover, that Decree No. 2813 of 2000 regulated article 13 of Act No. 584, 2000 on trade union leave for public servants’ representatives, establishing their right to the paid trade union leave needed to fulfil their duties. Despite this, the legal representative of the ESE Rafael Uribe and Uribe issued Circular No. 0005 of 2005 limiting trade union leave to 20 hours per month and establishing a cumbersome procedure for obtaining trade union leave. ASDESALUD states that restricting trade union leave to 20 hours per month prevents the union from fulfilling its objectives (holding meetings of national and sectional executive committees, attending conferences, coverage of the various headquarters and companies in the health sector) especially considering that it is a nationwide industrial trade union. The organization adds that Ms María Nubia Henao Castrillón, Ms Luz Elena Tejada Holguín and Ms Olga Araque Jaramillo are facing disciplinary proceedings for using their trade union leave.
6. 404. In its communications dated 4 and 27 April 2006 the CUT alleges that the Government failed to conduct collective bargaining (despite the fact that in 2000 Colombia ratified Conventions Nos 151 and 154) in regard to Act No. 909 of 23 September 2004, which issued standards regulating public employment and administrative posts, and its regulatory decrees (No. 3232 of 5 October 2004, Decrees Nos 760, 765, 770, 775, 780 and 785 of 17 March 2005) under which more than 120,000 state workers in provisional posts will have to sit competitive examinations to retain their jobs. According to the complainants, the new provisions require these competitions to take place not only to fill vacant posts but also for posts held by employees who, having fulfilled the criteria required at the time to obtain the post, were not entered into the official administrative database due to an oversight by the public authorities.
7. 405. The CUT states that the Government only allowed the trade union organizations to present their opinions, without their effective participation in any collective bargaining on the new legislation to be adopted. The CUT adds that the new system will undoubtedly affect trade unions given that thousands of the affected workers are members of them.
8. 406. In its communication dated 3 April 2006, the Union of Public Officials of the University Hospital of Valle ESE (SINSPUBLIC HUV) adds that, in its particular case, the adoption of the aforementioned legislation infringed the collective agreement signed in 2003 by the trade union and the public authorities, article 24 of which provides that in accordance with the law, the “Evaristo García” Valle University Hospital ESE will continue to respect, for an indefinite period, the employment relationship of all public employees whose conditions of appointment and employment contracts are regulated by the collective agreement.
9. B. The Government’s reply
10. 407. In its communication dated 27 June 2006, the Government states that splitting up the ISS was legal, given the Constitutional Court’s ruling that Decree No. 1750 of 2003 was applicable in judgements C-314 and C-349 of 2004.
11. 408. The Government states that the collective agreement was signed by the ISS and SINTRASEGURIDAD SOCIAL, implying that the ESEs established by Decree No. 1750 of 26 June 2003 were not parties to the agreement, since the companies did not legally exist when it was signed (31 October 2001). The scope of the collective agreement is determined by law and in the present case the agreement was signed by the ISS without any reference to the possibility of its application to other companies, namely, the ESEs. There is therefore no legal provision to extend the application of the agreement beyond the company that signed it or to workers or employees of other companies.
12. 409. The Government adds that article 3 of the collective agreement states that the collective labour agreement will benefit the public officials engaged through the personnel department of the ISS in accordance with the established legal standards in force, and those who become part of that category as a result of future modifications to those legal standards and are members of the SINTRASEGURIDAD SOCIAL. The public officials engaged through the personnel department of the ISS who are members of the following organizations will also benefit: Sintraiss, Asmedas, Andec, Anec, Asteco, Asocolquifar, Acodin, Asincoltras, Asbas, Asdoas and Aciteq. The Government emphasizes that the scope of the collective agreement is clear since it states categorically that it applies to public officials engaged through the personnel department of the ISS.
13. 410. Article 16 of Decree No. 1750 of 2003, which split the ISS into seven ESEs, stipulated that for all legal purposes, the workers of the ESEs established by this Decree will be public employees. Article 18 of the Decree, setting out the system of wages and benefits, provided that the system of wages and benefits of public employees of the ESEs established by this Decree will be the same as those of public employees in the executive branch at national level. It is therefore clear that the Decree splitting up the ISS changed the legal nature of the connection between the workers and their institution when they became ESEs, since the workers became public employees instead of public officials by legal order. This change in the legal relationship between the workers and the State came into effect by virtue of the law on 26 June 2003. It implies that anyone who ceases being a public official and becomes a public employee will be subject to the general rules for that category of workers.
14. 411. The Constitutional Court, on declaring in judgement C-314 of 2004 that Decree No. 1750 of 2003 was applicable, stated that:
15. It was also common knowledge that while public employees are bound to the administration through a legal, prescribed relationship, public officials have an employment contract governed by special rules. The result of this difference is that, under current legislation, public officials are authorized to negotiate collective labour agreements, intended to improve the minimal privileges stipulated by law, while public employees do not have this privilege, although they are authorized to form trade unions. It can therefore be deduced that the public servants assigned to the ESEs who acquired the status of public employee and lost that of public official, also lost the right to present lists of claims and to negotiate collective labour agreements. Consequently, belonging to a specific employment category, be it public official or public employee, does not imply an acquired right to conclude collective agreements, which is merely a capacity derived from the specific type of employment regime. The Court finds it valid to consider that, in this case, the residual right follows from the principal right, namely that, since the right to be a public employee or a public official does not exist, then the right to present collective agreements does not exist either if the employment regime has been modified. The contrary conclusion would be absurd, implying that certain types of public employees, who were previously public officials, would have the right to present collective labour agreements, unlike those who had never been public officials. This would create a third type of public employee, not provided for by the law, resulting from the transition from one employment category to another, and ultimately would impinge on the right to equality since those who had never been public officials would not have the right to improve their employment conditions through collective bargaining. It is therefore clear to the Court that the public employees working for the ESEs since 26 June 2003 cannot bargain collectively, nor can they aspire to benefit from collective agreements, as these are restricted by law to public officials.
16. 412. The Government adds that in judgement C-314 the Constitutional Court stated that:
17. … the Court believes that this harmonization is possible, hence the authorities’ competence to fix labour conditions and salaries unilaterally does not in any way preclude the holding of consultations between the authorities and the workers on this matter, and in the event of disagreement, mutually acceptable solutions should be sought, as laid down in article 55. This means that nothing in the judgement prevents public employees from petitioning the authorities on their employment conditions and entering into discussions with them to come to an agreement on the subject, which implies that the right to collective bargaining should not be considered negated. However, unlike public officials, who have a right to comprehensive bargaining, the search for mutually acceptable negotiated solutions cannot affect the competence conferred upon the authorities by the judgement to fix employment conditions unilaterally. The creation of mechanisms allowing public employees, or their representatives, to participate in determining their employment conditions is valid, provided it is understood that the final decision lies with the authorities specified in the Constitution, namely, Congress and the President at national level, and the assemblies, councils, governors and mayors working independently at the various territorial levels. Even with this restriction, requests can still legitimately be made to reach a mutually acceptable negotiated solution between the parties in the event of dispute between public employees and the authorities. The above clarifications in no way suggest that the Court should impose conditions on the implementation of Articles 7 and 8 of Convention No. 151, under revision, concerning public employees, which authorize taking specific national conditions into account. Article 7 does not confer a right to comprehensive collective bargaining on all public servants, but lays down that States must adopt measures appropriate to national conditions which promote negotiation between public authorities and public servants’ organizations, which is compatible with the judgement. Article 7 further provides for the possibility of establishing such other methods as will allow representatives of public employees to participate in the determination of these matters, which is in keeping with the possibility of public employees consulting and petitioning the authorities, without infringing the constitutional competences of those bodies to fix unilaterally the pay and employment conditions of those employees. Likewise, Article 8 recognizes that the methods aimed at resolving conflicts should be appropriate to national conditions; therefore the Court understands this provision to be consistent with the judgement, as it does not contradict the authorities’ right to unilaterally enact the laws which fix public employees’ functions and pay, once all attempts at reaching mutual agreement have been exhausted.
18. 413. With regard to trade union leave, the Government states that Circular No. 0005 of 18 May 2005, issued by the general management of the ESE Rafael Uribe Uribe, stipulates the procedure to follow for granting trade union leave. This is neither an automatic right nor an imposition, and the strict criteria required by law must be met so as to avoid disrupting or affecting the provision of the public health service. The Legal Office of the Ministry of Social Protection stated in File No. 3821 of 23 March 2004, that as things stand, it found that the executive committee members of the public employees’ trade unions and the subcommittee members have the right by means of an administrative application and prior request by the trade union organization, to be granted the leave needed to conduct their trade union activities, in a reasonable manner and in keeping with the ruling of the honourable Constitutional Court, without this affecting the provision of the public service where they work as public servants and under the terms of article 2 of Decree No. 2813, 2000. Decree No. 2813 stipulates that trade union leave must be regulated by each company, taking into account the needs of the trade union applying for the leave and also of the company’s own need to ensure that it does not affect the provision of service. Circular No. 0005 seeks to comply with the parameters laid down by this Decree.

C. The Committee’s conclusions

1. 414. The Committee observes that this case refers to: (1) the refusal to grant the right of collective bargaining to the workers of the former ISS, which was split into seven ESEs under the terms of Decree No. 1750 of 2003, and the refusal to recognize the collective agreement in force; (2) the limitation of trade union leave to 20 hours per month contained in Circular No. 0005 of 2005, and the initiation of disciplinary proceedings against three trade union officials for using that leave; (3) the CUT allegation that the Government of Colombia failed to bargain collectively with the trade unions with regard to adopting Act No. 909 of 23 September 2004 and its regulatory decrees on public employment and administrative posts; and (4) the violation pursuant to previous legislation of the agreement signed in 2003 between the public authorities and SINSPUBLIC regarding the employment conditions of the workers at the “Evaristo García” University Hospital of Valle.
2. 415. With regard to the allegations presented by ASDESALUD relating to the refusal to grant the right to collective bargaining to public employees working at the Rafael Uribe and Uribe State Social Company (ESE) and the failure to apply the collective agreement in force, the Committee notes, that according to the allegations and the Government’s reply, the former ISS was split into seven ESEs by Decree No. 1750 of 2003 which meant that the workers ceased to be public officials with the right to collective bargaining and became public employees who are denied that right. The collective agreement in force at the Institute does not apply to the new ESEs succeeding the Institute as it covers different subjects. The Committee further notes that ASDESALUD lodged a demand for the Constitutional Court to declare the Decree unconstitutional (a copy of the judgement is attached) because it violates acquired rights, inter alia. The Court believed that the legal change in the category of the workers was constitutional given that it is the legislator who is invested with the authority to lay down rules appropriate to those providing services in state companies and bodies and, furthermore, the public servants who acquired the category of public employee and lost that of public official, also lost the right to present lists of claims and to negotiate collective labour agreements. The Committee further notes that the Constitutional Court ruled that, in any event, the collective agreement in force at the time of the split had given rise to acquired rights. However, despite the Court’s judgement, the ESEs do not apply it because they are not parties to its negotiation since they did not exist at that time and the collective agreement did not provide that it be applied in other companies. In this regard, the Committee considers that a legal provision which modified unilaterally the content of signed collective agreements, or requires that they be renegotiated, is contrary to the principles of collective bargaining, as well as the principle of the acquired rights of the parties [see 344th Report, Case No. 2434, para. 791].
3. 416. Regarding the recognition of public employees’ right to collective bargaining, the Committee recalls that in accordance with Conventions Nos 98, 151 and 154, ratified by Colombia, public sector workers in the central public service should have the right to collective bargaining. The Committee however, notes that, under Convention No. 154, collective bargaining in the public service allows for special modalities of application to be fixed. In effect, the Committee, sharing the view of the Committee of Experts in its 1994 General Survey, recalls that, even when the principle of the autonomy of the parties in the collective bargaining process remains valid with regard to public servants and public employers covered by Convention No. 151, this may be applied with a degree of flexibility, given the particular characteristics of the public service, mentioned earlier, while at the same time, the authorities should, to the greatest possible extent, promote the collective bargaining process as a mechanism for fixing the employment conditions of public servants. The Committee therefore considers, as it had in other previously examined cases concerning Colombia [see 337th Report, Case No. 2331, para. 594], that in this case the limits imposed upon public employees with regard to the possibility of collective bargaining are not in accordance with the terms of the abovementioned Conventions as public employees can present only “appropriate written representations”, which are non-negotiable, in particular with regard to conditions of employment, which may be determined only by the authorities, which have exclusive competence in the matter. The Committee therefore requests the Government to take the necessary measures to ensure that, in consultation with the trade unions concerned, the legislation is amended to bring it into line with the Conventions ratified by Colombia so that the public employees in question can enjoy the right to collective bargaining. The Committee requests the Government to keep it informed of any measure adopted on this matter and reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.
4. 417. With regard to applying the collective agreement in force at the time of the split, the Committee, recalling the importance of abiding by judicial decisions, requests the Government to take the necessary measures to assure respect for acquired rights as established in the collective agreement in force at the ISS and applied at the Rafael Uribe and Uribe ESE, for the period it is in force and in accordance with the Constitutional Court decision.
5. 418. With regard to the restriction on granting trade union leave to 20 hours per month contained in Circular No. 0005 of 2005 which, according to ASDESALUD allegations makes it much more difficult to carry out its activities given that it covers a wide area, the Committee notes that, according to the Government, the circular issued by the general management of the Rafael Uribe and Uribe ESE lays down the procedure to follow when granting trade union leave, which is not an automatic right, but is subject to strict criteria required by law so as to avoid affecting the provision of public services. The Committee notes that the Government states that Decree No. 2813 stipulates that trade union leave must be regulated by each company, taking into account the needs both of the trade union applying for the leave, and of the company; in granting the leave, it must be ensured that provision of the service is not affected. Circular No. 0005 therefore sought to comply with the parameters laid down in the aforementioned Decree.
6. 419. The Committee observes that ASDESALUD is an industrial trade union with many tasks to carry out and that the restriction of trade union leave to 20 hours per month could make it difficult for it to fulfil its functions. The Committee recalls that, while account must be taken of the characteristics of the industrial relations system of a country, and while the granting of such facilities should not impair the efficient operation of the undertaking concerned, Paragraph 10(1) of the Workers’ Representatives Recommendation, 1971 (No. 143) provides that workers’ representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions in the undertaking. Paragraph 10(2) adds that while a workers’ representative may be required to obtain permission from his supervisors before he takes time off from work, such permission should not be unreasonably withheld. The affording of facilities to representatives of public employees, including the granting of time off, has as its corollary ensuring the “efficient operation of the administration or service concerned”. This corollary means that there can be checks on requests for time off for absences during hours of work by the competent authorities solely responsible for the “efficient operation” of their services [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 1110 and 1111]. The Committee draws the Government’s attention to the fact that trade union leave, its extension and conditions are another issue that can be a subject for negotiation by the parties concerned. The Committee, therefore, asks the Government, in the light of Decree No. 2813 according to which leave has to be regulated, while taking into account the needs of the trade union, to take the necessary measures to review Circular No. 0005 of 2005, which restricts the granting of trade union leave to 20 hours per month, after consultations with the trade unions concerned, in order to obtain a solution satisfactory to the parties.
7. 420. The Committee observes that the Government has not sent its observations regarding the disciplinary proceedings against Ms María Nubia Henao Castrillón, Ms Luz Elena Tejada Holguín and Ms Olga Araque Jaramillo for using their trade union leave. The Committee refers to the previous paragraph and requests the Government to ensure that the disciplinary measures are withdrawn and that adequate compensation is paid to them for any damages caused. It also requests the Government to ensure that trade union officials working at the Rafael Uribe and Uribe ESE can use their trade union leave in accordance with the principles set forth, having due regard for existing and future agreements.
8. 421. With regard to the allegations presented by the CUT concerning the Government of Colombia’s failure to bargain collectively with the trade unions regarding the adoption of Act No. 909 of 23 September 2004 and its regulatory decrees on public employment and administrative posts, the Committee notes that the complainant organization states that the new legislation will mean that about 120,000 public service workers will have to sit competitive examinations to retain their jobs even though they fulfilled the required criteria at the time of obtaining the post, but were not entered into the official administrative database due to an oversight on the part of the public authorities. The Committee further notes that the CUT states that the Government did not negotiate with the trade unions before adopting this legislation, but merely consulted them. The Committee notes that, according to the complainant organization, the Government is unwilling to bargain collectively with public service workers, in violation of Conventions Nos 98, 151 and 154, ratified by Colombia.
9. 422. The Committee observes with regret that the Government did not send its observations on this matter. The Committee further regrets that the Government did not bargain collectively before promulgating Act No. 909 of 23 September 2004 and its regulatory decrees as this legislation seriously affects the employment conditions of thousands of workers. The Committee, observing that this is contrary to the commitments made by the Government when it ratified Conventions Nos 98, 151 and 154, refers to the principles set forth in the previous paragraphs regarding collective bargaining in the public sector. The Committee requests the Government to fulfil its obligations under these Conventions and negotiate collectively with the trade unions concerned.
10. 423. On the subject of the allegations presented by SINSPUBLIC to the effect that Act No. 909 of 23 September 2004 and its regulatory decrees violate the collective agreement signed in 2003 between the public authorities and the trade union, article 24 of that agreement stipulating that in accordance with the law, the “Evaristo García” Valle University Hospital will continue for an indefinite period to maintain the employment relationship of all those public employees whose conditions of appointment and contract of employment is governed by the collective agreement, the Committee observes with regret that the Government has not sent its observations on this subject and recalls that agreements should be binding on the parties [see Digest, op. cit., para. 939 ]. In these circumstances, the Committee asks the Government to take the necessary measures to ensure that the collective agreement between the public authorities and SINSPUBLIC is duly applied. The Committee requests the Government to keep it informed on this matter.