Informe provisional - Informe núm. 354, Junio 2009

1. 441. The complaints in this case are contained in communications from Single Confederation of Workers of Colombia (CUT) and the Trade Union of Workers of the Silvania Lighting International Enterprise (SINTRAESLI) dated 3 August 2007, the National Trade Union of Workers of Omnitempus Ltda (SINTRAOMNITEMPUS) dated 15 February and 22 June 2007, and the National Unitary Trade Union of Official Workers and Public Servants of the State (SINUTSERES) dated 27 September and 27 November 2007.
2. 442. The Government sent its observations in communications dated 23 January and 10 October 2008, and 25 February 2009.
3. 443. Colombia has ratified the Freedom of Association and Protection of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 444. In its communications of 15 February and 22 June 2007, SINTRAOMNITEMPUS alleges that on 26 April 2005, an application for registration of the trade union was made to the Ministry of Social Protection. The trade union had been established on 24 April 2005. In Decision No. 001834 of 29 June 2005, the labour, employment and social security inspector issued the order for the trade union SINTRAOMNITEMPUS to be entered in the trade union register. However, the enterprise submitted a request for reconsideration with a subsidiary appeal.
2. 445. Through Decision No. 002626 of 19 August 2005, the labour, employment and social security inspector upheld Decision No. 001834 in its entirety. The enterprise submitted a request for reconsideration with a subsidiary appeal, against the same Decision No. 001834. Once again, the inspector of the Employment, Labour and Social Security Group, in Decision No. 003057 of 21 September 2005, upheld Decision No. 001834 of 29 June 2005 in its entirety.
3. 446. On 6 July 2006, the enterprise applied to the Ministry of Social Protection requesting direct annulment of Decision No. 001834 of June 2005. The inspector of the Employment, Labour and Social Security Group, in Decision No. 002247 of 29 August 2006, rejected the application for direct annulment of Decision No. 001834.
4. 447. On 1 December 2006, the enterprise applied to the Ministry of Social Protection requesting that Decisions Nos 001834, 002626 and 003057 of 2005, “ordering registration of the founding document, by-laws and executive committee of SINTRAOMNITEMPUS”, be declared unenforceable (invalid). The inspector of the Employment, Labour and Social Security Group, in Decision No. 004183 of 21 December 2006, issued the order declaring the abovementioned decisions unenforceable. The Omnitempus Ltda enterprise dismissed the entire executive committee and 80 per cent of the members of SINTRAOMNITEMPUS, all of whom were fully covered by special trade union immunity based on the fact that negotiations were under way on a list of demands which the trade union had presented to the enterprise. On the date on which administrative Decision No. 004183 was issued, the trade union was awaiting the holding of a compulsory arbitration tribunal ordered by Decisions Nos 002980 of 18 August 2006 and 004321 of 17 November 2006, signed by the Deputy Minister for Labour Relations, Ministry of Social Protection.
5. 448. In their communication of 3 August 2007, CUT and SINTRAESLI allege that in decision No. 00734 of 8 March 2007, the inspector of the employment group under the Ministry of Social Protection refused to register the trade union and its executive committee on the grounds that the union did not have the minimum number of workers required for the establishment of a trade union, without taking the content of the minutes of the assembly into account. In light of the above, the workers decided to hold another general assembly, in which 36 workers participated – 11 more than the legal requirement. Nevertheless, the administrative authority again refused to register the trade union and its executive committee in Decision No. 00842 of 21 March 2007, on the grounds that it amounted to a “trade union carousel” – a term that does not exist in law – and adding that trade unions were not set up to prevent workers from being dismissed. Once the decision became enforceable, the enterprise dismissed the workers who had established the trade union, with only two members remaining employed.
6. 449. The trade union filed two actions for protection of constitutional rights (tutela) which were initially rejected and challenges are now pending against these decisions.
7. 450. In its communications of 27 September and 27 November 2007, SINUTSERES alleges, firstly, that the Ministry of Social Protection refused to register trade union member María Gilma Barahona Roa as controller (fiscal) of the trade union, reiterating its refusal twice on the same grounds.
8. 451. On 4 September 2004, the general assembly of members of the trade union elected its national executive committee for the statutory period 2004–06. One of the officers elected (to the post of controller) was María Gilma Barahona Roa, an employee of the National Local Road Fund, which is in the process of being liquidated.
9. 452. The trade union recalls that after a number of decisions and appeals, the labour inspectorate, by Decision No. 00015 of 21 January 2005, ordered the registration of the executive committee, except for the post of controller, which was left vacant since Ms Barahona Roa was employed by a body in the process of liquidation.
10. 453. The same situation arose when the executive committee for the period 2005–07 was registered: Decision No. 0047 of 7 October 2008 ordered the registration of the executive committee, but left the post of controller vacant. A request for reconsideration and an appeal were filed, but were turned down.
11. 454. Meanwhile, the National Local Road Fund dismissed more than 20 employees, including three members of the national executive committee and of the Bogotá branch committee of the trade union (María Gilma Barahona Roa, Olga Mercedes Suárez Galvis and Yolanda Montilla).
12. 455. In addition, despite the recommendations made by the Committee on Freedom of Association during its examination of Case No. 2448, the Meta office of the Ministry of Social Protection has not complied with these recommendations.
13. 456. María Gilma Barahona Roa, who was elected as a trade union officer by the general assembly of members, has not been registered to date.
14. 457. SINUTSERES alleges further that the labour inspectorate of the Ministry of Social Protection did not register the executive committee and the Soacha Cundinamarca Colombia branch committee of the trade union.
15. 458. On 25 October 2006, the workers and officials employed by the Soacha Cundinamarca municipality, who are members of the trade union, met in assembly and voted by an absolute majority in favour of establishing the Soacha Cundinamarca branch committee, the officers of which were elected at the same assembly. On 31 October, the documents were submitted to the labour inspectorate of the Ministry of Social Protection with a view to applying for registration of the trade union. On 6 November of the same year, 2006, the labour inspector drew up a list of observations requesting the organization to provide certain documents and add the list of officers and the name and address of the employer, among other items. The trade union was given two months in which to provide the information.
16. 459. The complainant adds that the mayor of that town issued Decree No. 768 of 21 December 2006, dismissing the chairperson of the executive committee of the branch union.
17. 460. On 11 January 2007, the additional information requested in the list of observations was provided. However, on 15 January 2007, the labour inspector returned the supporting documents on the grounds that they had been submitted late.
18. 461. On 26 January 2007, the trade union submitted a request for reconsideration with a subsidiary appeal, which was rejected.
19. B. The Government’s reply
20. 462. In its communications dated 23 January and 10 October 2008 and 25 February 2009, the Government sent its observations on the allegations.
21. 463. As regards the allegations presented by SINTRAOMNITEMPUS concerning the declaration of unenforceability of decisions registering the trade union, the Government reports that the workers filed an amparo action and obtained a temporary suspension of the effects of declaration of unenforceability, pending a ruling by the administrative court.
22. 464. An action to have the decision revoked and the right restored is currently pending in the administrative court; hence it is essential that the trade union provide information on the proceedings and the case number, so that enquiries may be made concerning the state of the proceedings.
23. 465. The Government provides information on the measures taken by the Ministry of Social Protection in the proceedings concerning registration of trade unions. Firstly, in accordance with Rulings Nos C-465 of 14 May and C-695 of 9 July 2008, the Inspection, Monitoring and Control Unit of the Ministry of Social Protection issued instructions to the officials of the different regional directorates indicating the procedure to be followed for registering trade unions, with attached models of acknowledgment of receipt of amendments to by-laws and changes in some or all of the members of the executive committee.
24. 466. In its Ruling No. C-465 of 14 May 2008, the Consitutional Court gave the following reasoning:
25. … Firstly, the purpose of the requirement to inform the Ministry of Social Protection and employers of changes in membership of trade union executive committees is to make public the decisions taken in the organization, so that they may be enforceable against third parties – in regard to trade union immunity, for example – and so that the trade union may be bound by the acts of its officers. The purpose of the regulation at issue is to guarantee the rights of trade unions and third parties by defining the moment at which the changes in the membership of a trade union executive committee become effective. Notification is thus a prerequisite, not for validity but for enforceability against third parties.
26. Two questions arise in regard to the regulation at issue, having a bearing on freedom of association and trade unions’ independence to organize their activities and elect their officers.
27. The first is whether the Ministry of Social protection may refuse to register changes approved by a trade union in the membership of its executive committee. The Court considers that this is not the case. Pursuant to the principle of trade union autonomy, it is for the trade union to decide who its officers shall be.
28. Notification of the Ministry is in fact equivalent to a deposit of information before the … The administration cannot refuse to register members of an executive committee who have been appointed in compliance with the legal requirements. This would constitute undue interference by the administration in the internal affairs of trade unions.
29. If the Ministry – or the employer – considers that a person cannot hold trade union office, it must bring the case before the labour courts, which shall rule on the issue.
30. … For all of the above reasons, the regulation at issue is declared constitutional, subject to two conditions: (i) the Ministry cannot refuse to register the new trade union officers, since if it, or the employer, considers that there are grounds to deny registration they must bring the case before the labour courts, which shall rule on the issue; and (ii) the guarantee of trade union immunity for new officers takes effect immediately after the Ministry or the employer has been notified of their appointment. The regulation at issue is thus enforceable, on the understanding that notification to the Ministry of changes in a trade union’s executive committee is solely for the purpose of publicity, and that trade union immunity takes effect immediately after the first notification.
31. 467. In Ruling No. C-695 of 2008, the Constitutional Court found as follows:
32. ... Fourth. – TO DECLARE ENFORCEABLE, subject to conditions, on the counts set forth in this judgment, section 372, subsection 1, of the Substantive Labour Code, replaced by section 50 of Act No. 50 of 1990 and expressly amended by section 6 of Act No. 584 of 2000, on the understanding that registration of the founding document of a trade union with the Ministry of Social Protection is solely for the purpose of publicity, and does not authorize the Ministry to exercise prior control over its content.
33. 468. Pursuant to the above, the Ministry of Social Protection can no longer refuse to enter trade unions in the register; in the event of an irregularity, it is the courts that are competent to rule on such an irregularity.
34. 469. Lastly, as regards the case of SINTRAOMNITEMPUS, the Government will abide by the decision of the administrative court, which is competent to rule on decisions taken by the Ministry of Social Protection.
35. 470. As regards the allegations presented by CUT and SINTRAESLI, on refusal by the Ministry of Social protection to enter SINTRAESLI in the trade union register, the Government states that according to the report sent by the Cundinamarca Regional Directorate, refusal to register the trade union was due to its failure to comply with national legislation. Concerning registration formalities, the documents provided by the trade union did not contain the names, signatures and identification numbers of the members, so that it was not possible to determine whether it was a constituent assembly of a trade union, or the date on which it was held; the same applied to the list of persons elected as members of the executive committee. In this regard, the Constitutional Court ruled that it was appropriate for a newly established trade union to submit a written application for registration within a legal time limit, with a copy of the founding document attached. The documents required have a direct bearing on the establishment itself of the trade union, as they provide information on its members and representatives, and thus the State does not exercise any prior control over the legality of the trade union’s existence, and hence there is no infringement either of the Political Constitution or of the provisions of Convention No. 87 in the requirement that a newly established trade union, which already has legal personality, subsequently comply with statutory requirements in order to be registered with the competent authority, for purposes of publicity, security and proof of its existence.
36. 471. The Government emphasizes that the official of the Ministry of Social Protection acted in accordance with national legislation, given that she required compliance with the statutory requirements for the inscription of a trade union in the trade union register.
37. 472. As regards the allegations presented by SINUTSERES, the Government points out that those allegations have already been examined in the context of Case No. 2448.

C. The Committee’s conclusions

1. 473. The Committee observes that this case refers to: (1) the declaration of loss of enforceability (validity) of the decisions entering in the trade union register, the founding document, executive board and by-laws of SINTRAOMNITEMPUS and subsequent dismissal of all of the officers and 80 per cent of the members; (2) refusal by the administrative authority to enter SINTRAESLI in the trade union register; (3) refusal by the administrative authority to register Ms María Gilma Barahona Roa as national controller (fiscal) of SINUTSERES and her subsequent dismissal, along with other union officers and over 20 employees of the National Local Road Fund, which is in the process of being liquidated, in which Ms Barahona Roa was employed; and (4) refusal by the administrative authority to register the executive committee of the Soacha Cundinamarca Colombia branch of the same trade union.
2. 474. As regards the allegations presented by SINTRAOMNITEMPUS, the Committee notes that according to the complainant, on 26 April 2005, an application for registration of the trade union was made to the Ministry of Social Protection, which was ordered by Decision No. 001834 issued in June 2005. The Committee notes that the enterprise filed two consecutive requests for reconsideration against that decision, which were rejected on 19 August 2005 (Decision No. 002626) and 21 September 2005, as well as a request for direct annulment on 6 July 2006, which was also rejected (Decision No. 002247). The Committee notes that despite the above, on 1 December 2006, the enterprise applied to the Ministry of Social Protection requesting that the decisions issued up to that date be declared unenforceable (invalid), this request being granted by Decision No. 004183 of 21 December 2006. The Committee notes that the enterprise then proceeded to dismiss all the officers and 80 per cent of the members of the trade union, despite the fact that negotiations were under way on a list of demands and they were thus covered by the special trade union immunity applicable to workers in the process of collective bargaining.
3. 475. The Committee notes that the Government reports that the workers filed an amparo action and obtained a temporary suspension of the effect of the declaration of unenforceability, pending a ruling by the administrative court, and that an action to have Decision No. 004183 invalidating the trade union registration revoked and the right restored is currently pending in the administrative court.
4. 476. The Committee also notes recent Constitutional Court Rulings Nos C-465 of 14 May and C-695 of 9 July 2008, which found that registration with the Ministry of Social Protection of the founding document or changes in membership of the executive committees is solely for purposes of publicity, and does not authorize the Ministry to exercise prior control over the content of such documents. According to the Court, in the event of an irregularity, it is the courts that are competent to rule on such an irregularity. In that regard, the Committee notes the information provided by the Government to the effect that, pursuant to those rulings, the Inspection, Monitoring and Control Unit of the Ministry of Social Protection issued instructions to the officials of the different regional directorates indicating the procedure to be followed for registering trade unions, with attached models of acknowledgment of receipt of amendments to by-laws and changes in some or all of the members of the executive committee. The Committee notes that in this case, the Government states that it will abide by the decision of the administrative court.
5. 477. The Committee requests the Government, in accordance with Constitutional Court Rulings Nos C-465 of 14 May and. C-695 of 9 July 2008, to provisionally reinstate the dismissed officers and members of the trade union, and provisionally register SINTRAOMNITEMPUS pending a final decision by the administrative court on both the refusal to register the trade union and the subsequent dismissal of the officers and members of the trade union. The Committee requests the Government to keep it informed in this regard.
6. 478. As regards the allegations of refusal by the administrative authority to register SINTRAESLI, the Committee notes that CUT and SINTRAESLI allege that: (1) the administrative authority refused to register SINTRAESLI and its executive committee by Decision No. 000734 of 8 March 2007 on the grounds that the trade union did not have the minimum number of members required to establish a trade union; (2) the organization held another constituent assembly with 36 members (more than the 25 required by the legislation) but the administrative authority again refused registration by Decision No. 000842 of 21 March 2007, pointing out that trade unions were not set up to prevent workers from being dismissed; (3) once the decision became enforceable, the enterprise dismissed the workers who had established the trade union, with only two members remaining employed; and (4) the trade union filed two actions for protection of constitutional rights (tutela) which were initially rejected and challenges are now pending against these decisions.
7. 479. The Committee notes in this regard that the Government states that according to the report sent by the Cundinamarca Regional Directorate, refusal to register the trade union was due to its failure to comply with national legislation (the documents provided by the trade union did not contain the names, signatures and identification numbers of the members, so that it was not possible to determine whether it was a constituent assembly of a trade union, or the date on which it was held; the same applied to the list of persons elected as members of the executive committee). The Committee notes that the Government states that these are statutory requirements laid down by the authority for purposes of publicity, security and proof of the trade union’s existence.
8. 480. In this regard, the Committee observes that it is clear from the allegations that registration was refused, despite the fact that the statutory requirements had been met, on the grounds that the trade union had been established to prevent the founding members from being dismissed (the Committee recalls that under section 406, subsection (a) of the Substantive Labour Code, founding members of a trade union shall be covered by trade union immunity from the date on which it was established, up to two months from the date of registration of the trade union, for a period not to exceed six months).
9. 481. The Committee observes that the Government states that the statutory requirements for the establishment of a trade union were not met. The Committee observes further that according to the allegations, once registration had been refused, the enterprise proceeded to dismiss the founding members of the organization, which meant that the trade union did not currently have the number of members required to establish an organization. In these circumstances, the Committee requests the Government to take the necessary steps to ensure that an investigation is carried out without delay into these allegations and, should they be found to be true, to take appropriate steps to reinstate the workers dismissed for having attempted to form a trade union, with back pay and compensation constituting sufficiently dissuasive sanctions, and to proceed with the registration of the SINTRAESLI trade union, in accordance with the two abovementioned Constitutional Court rulings stating that the registration authority cannot refuse registration on the grounds of irregularities in the content of the documents submitted by the trade union; it is for the judicial authority to rule on such irregularities. The Committee requests the Government to keep it informed in this regard, as well as on the challenges filed against the rejection of the tutela actions initiated by the trade union.
10. 482. As regards the allegations made by SINUTSERES, the Committee notes that according to the trade union, Ms Barahona Roa was elected in 2004 to the post of controller (fiscal) of the national executive committee for the period 2004–06. However, the administrative authority refused to register Ms Barahona Roa because she was employed in the National Local Road Fund, which is in the process of being liquidated; it refused again when Ms Barahona Roa was re-elected to the same post in 2007. The Committee notes that according to the trade union, despite having presented a complaint on this issue to the Committee and the latter’s recommendations, Ms Barahona Roa was never registered. The Committee notes further that after the appeals were rejected, the authorities of the National Local Road Fund, pursuant to the decree ordering its liquidation (according to the evidence enclosed by the complainant) proceeded to dismiss Ms Barahona Roa and two other officers (Olga Mercedes Suárez Galvis and Yolanda Montilla), as well as over 20 other employees of the Fund. Moreover, the Committee notes the allegations concerning the refusal to register the executive committee of the Soacha Cundinamarca Colombia branch of the same trade union.
11. 483. The Committee notes that according to the Government, these allegations have already been examined in the context of Case No. 2448. In this regard, the Committee observes that the allegations examined in that case indeed refer to the refusal by the administrative authority to register Ms Barahona Roa as controller (fiscal) of the national executive committee of SINUTSERES (see 342nd Report, paras 373–411; 344th Report, paras 802–823, and 349th Report, paras 47–54). On those occasions, the Committee requested the Government to take the necessary measures for Ms Barahona Roa to be registered without delay as a member of the executive committee of SINUTSERES. The Committee observes, however, that the new allegations concerning the administrative authorities’ disregard for the Committee’s recommendations on the registration of Ms Barahona Roa as controller and the subsequent dismissal of Ms Barahona Roa and other union officers, as well as other officials of the National Local Road Fund, and their refusal to register the executive committee of the Soacha Cundinamarca Colombia branch of the same trade union and dismissal of the president of the executive committee of the branch were not examined under Case No. 2448. In these circumstances, and given that that case is closed, the Committee requests the Government to send its observations in this regard in the context of the present case.