Informe definitivo - Informe núm. 351, Noviembre 2008

1. 473. The Confederation of Workers of Colombia (CTC), the Single Confederation of Workers (CUT) and the Confederation of Pensioners of Colombia (CPC) presented their complaint in a communication dated 28 May 2007. They presented further allegations in a communication dated 22 May 2008. The CPC presented further allegations in communications dated 23 August and 19 September 2007 and 21 August 2008.
2. 474. The Government sent its observations in communications dated 7 December 2007 and 22 April 2008.
3. 475. 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. 476. In their communications dated 28 May 2007 and 22 May 2008, the CUT, CTC and CPC allege non-compliance with the collective labour agreement concluded between the trade unions of Puertos de Colombia and the enterprise Puertos de Colombia (COLPUERTOS) for the period 1991–93.
2. 477. In 1991, the Colombian Congress approved Act No. 1 ordering the liquidation of COLPUERTOS. Decrees Nos 35 and 36 regulating Act No. 1 of 1991 set up a fund with legal personality, administrative autonomy and its own assets, to take over the social liabilities and the obligations of COLPUERTOS. It was named the Social Liability Fund for the Enterprise Puertos de Colombia (FONCOLPUERTOS). It was established that COLPUERTOS was to be liquidated over a period of three years, by 31 December 1993.
3. 478. In June of 1997, the national Government issued Legislative Decree No. 1689 closing and liquidating FONCOLPUERTOS. The Ministry of Social Welfare set up an internal working group – the “Social Liability Fund” working group – by resolution No. 3137 of December 1998 to manage the social liability of COLPUERTOS.
4. 479. The complainant organizations state that the abovementioned working group passed various administrative resolutions ordering suspension of the payment of more than 400 invalidity pensions and the unilateral alteration of the initial amounts of numerous pensions; many of the pensioners concerned had these entitlements re-established through tutela (constitutional protection) proceedings, although a large number of former workers are still waiting for normal payments to resume.
5. 480. The complainant organizations also allege that the abovementioned working group has breached Acts Nos 44 of 1980, 717 of 2001 and 797 of 2003 by delaying the timely transfer and payment of survivors’ pensions by two to three years. They also allege that:
   • – Through resolutions Nos 264 of 3 May 2002, and 264 of 15 July 2002 and 745 of 2002, the working group ordered that minimum wages, both statutory and negotiated, be capped in the case of 192 pensioners. These resolutions also ordered the pensioners to repay certain sums of money, despite the fact that by law or by agreement they had acquired rights.
   • – The working group excluded over 337 pensioners from the payroll because, according to the Ministry, the individual records of their former work contained no pension certificate, which is what opens entitlement to the pension.
   • – The Ministry of Social Welfare ordered and is implementing deductions of up to 50 per cent from many pensions without the express and written consent of those concerned, in violation of section 73 of the Administrative Disputes Code on old-age pensions recognized by administrative decision.
   • – Special judges have been appointed for the portworkers. In agreement with the Higher Council of the Judicature, the body which appoints judges in Colombia, the national Government created special tribunals to review and quash legal rulings by courts of first and second instance that found in favour of former COLPUERTOS workers.
   • – Breach of due process in administrative rulings on pensions.
6. 481. In its communications of 23 August and 19 September 2007, the CPC alleges suspension of the payment of the pensions of over 700 pensioners and a reduction in the amount of the pensions paid to over 600 pensioners. In its communication of 21 August 2008, the CPC refers to the decision of the Second Criminal Court of the “circuito de decongestion” which declared null and void the administrative acts ordering the payment of numerous pensions.

B. The Government’s reply

1. 482. In its communications dated 7 December 2007 and 22 April 2008, the Government states that it can be inferred from the complaint that the former workers are able to exercise freedom of association; that they have had access to and made use of the mechanisms the law provides for the defence of their pension rights. Furthermore, the trade union rights of the former workers have been respected and no attempt has been made to prevent their free exercise. The Government stresses that pension entitlements are individual, and not collective, rights. It adds that the administration has had to take action under both labour and criminal law because some cases have involved procedural fraud committed with a view to gaining recognition of the said pension rights, leading to criminal proceedings. The Government considers that these issues are not within the competence of the Freedom of Association Committee being outside the scope of the rights and freedom of association. The Government furthermore considers that the occurrences recounted in the present complaint have nothing to do with Conventions Nos 87 and 98.
2. 483. The Government states that the actions of the Ministry of Social Welfare working group are in keeping with the legislation, according to an explanation given by the group’s general coordinator, and are in no way inconsistent with the text of the abovementioned Conventions.
3. 484. In his report, the coordinator of the working group states that the liquidation of Puertos de Colombia was ordered through Act No. 1 of 1991, with the State assuming the enterprise’s social liability. FONCOLPUERTOS was set up through Decree No. 036 of 3 January 1992. There were irregularities in the administration of the Fund, which are currently being investigated by the criminal authorities; Legislative Decree No. 1689 of 1997 liquidated the Fund, leaving the State (the Ministry of Labour and Social Security – now Social Welfare) to deal with the legal proceedings and other labour-related claims previously dealt with by the Fund. The Internal Working Group on Management of the Social Liability of Ports of Colombia was set up through resolution No. 3137 of 1998. While FONCOLPUERTOS was in operation, public servants and former portworkers and their representatives engaged in unlawful acts such as double payment and undue payment and the unlawful recognition of entitlements. These were investigated as punishable acts by the Office of the Public Prosecutor General and sanctions were imposed by judges of the Republic giving rise to criminal proceedings for embezzlement; aggravated fraud; falsification of public documents; procedural fraud and prevaricato por acción (positive breach of public duty). As a result, 136 convictions were handed down to 708 offenders, with damages amounting to over 298,786 million Colombian pesos. There are still 914 cases pending. Despite all this, during the period 1991–93, in which the body was already in liquidation, five collective agreements were concluded which are still in force to the extent that they have not been amended.
4. 485. The report denies the suspension of payments to a large number of individuals who had retired due to invalidity and points out that invalidity pensions are governed by mandatory provisions, so the administration is bound to apply them in carrying out its administrative duties. The group’s decisions do not contravene conventions and/or collective agreements, and are certainly not inconsistent with the provisions of section 281 of the Substantive Labour Code. On the contrary, the group works within the boundaries set by those provisions, which authorize “regular assessment of the invalid, with a view to identifying the development of incapacity, preventing simulation and monitoring permanence”. An invalidity assessment report determines the grant of the invalidity pension and is the responsibility of autonomous boards set up through Decree No. 2463 of 2001. It is the basis for either confirming or amending the invalidity. Thus, once an assessment board has determined that someone is not an invalid, the pension must by law be terminated through an administrative implementing order with immediate effect. With this order, the Ministry is quite simply applying the provisions of the law on the basis of the report issued for the purpose by the competent body.
5. 486. As to the delay in the grant and payment of survivors’ benefits, the coordinator states that the payroll of pensioners of the liquidated enterprise Puertos de Colombia currently stands at 15,279 and consists of both pensioners and beneficiaries of survivors’ pensions, and that around 418 pensioners die every year. This is why in the pensions dealt with by the group, there are on average 350 active administrative files of claims to entitlement to a survivors’ pension. Although the law states that a claim must be answered at the latest two months after it has been filed, this deadline does not allow enough time for compliance with the provisions. In the vast majority of cases, the applicants fail to provide all the necessary documents; and under Act No. 44 of 1980, an edicto emplazatorio (notice) must be published summoning those who believe they are entitled to a survivors’ pension to present themselves within 30 days, which in practice reduces the two months to a mere 15 days.
6. 487. Furthermore, the administrative decisions responding to the claims must be notified in person by a substitute of the official in charge and they are not infrequently the subject of administrative appeals. Only when it becomes final upon settlement of the appeal can a decision be applied to the pension payroll. It is thus impossible to process the claim within the legally established deadline.
7. 488. As to the allegation that by individual and specific administrative decisions pensions were reduced without the express written consent of the beneficiaries, the coordinator states that deductions from monthly pensions were ordered, on the basis of Decree No. 994 of 2003, so as to recover overpayments to pensioners and that it was not necessary to obtain the consent of the beneficiaries.
8. 489. The coordinator adds that resolutions Nos 262 and 264 of 3 May 2002 put an end to corrupt practices by applying caps – statutory or negotiated as the case may be – to 192 monthly pensions which had not been amended in accordance with the law and whose beneficiaries had been receiving undue and improper overpayments.
9. 490. Resolution No. 262 set out instructions for overseeing and coordinating the management of the group’s functions to ensure compliance with the applicable constitutional and legal provisions, and for the liquidation of monthly pensions within the legal and/or agreed parameters. Furthermore, the resolution banned the payment of any amount by which a pension exceeded the maximum statutory or negotiated minimum monthly wage. A thorough in-depth study was conducted to determine those pensions that exceeded the applicable statutory or agreed monthly limits. The group has still not carried out a full review of each and every one of the pensions in accordance with Act No. 797 of 2003, which will allow the real amount of the pensions to be determined, as the Office of the Comptroller General of the Republic has requested.
10. 491. Through resolutions Nos 262 and 264 of May 2002, the pensions payroll of enterprise Puertos de Colombia was revised, blatant illegalities were eliminated and monthly pensions aligned with the legal or agreed limits on a case-by-case basis, while rights acquired legitimately and in good faith were respected, the aim being to protect public resources effectively. Resolution No. 264 of 3 May 2002 was communicated to the persons concerned but not notified to them personally, the point being made that both it and resolution No. 262 of 2002 are administrative acts of a general nature setting a policy framework. They ordered a revision of the payroll and laid down an obligation to issue individual and specific administrative acts. And this was done in every case.
11. 492. In its ruling of 10 March 2005, the Administrative Disputes Court of the Council of State, Second Section, Subsection B, found resolution No. 262 to be consistent with the law.
12. 493. All the foregoing justifies and explains why the group ordered the refund of undue payments to pensioners, whereas it would be untenable to claim that former workers acted in good faith when it was perfectly plain that their pensions might not exceed the agreed or legal limit. Yet workers willingly accepted sums far higher than those to which they were legally entitled.
13. 494. As to the issuing of resolution No. 482 of 15 July 2002 suspending payments to more than 300 COLPUERTOS pensioners, the coordinator states that the Advisory Council for the National Public Pensions Fund, through Act No. 32 of 4 July 2002, recommended to the pension administrators, in this case the group, that they refrain from paying those pensions on the payroll which did not have the number and date of the administrative act justifying payment of the pension. In order to regularize the situation of these workers and/or public employees, the pensions coordinator searched through the archives of the work records of the group and of the Ministry of Transport, and among the documents stored at the Office of the Public Prosecutor, for administrative acts justifying past payments, as there was no proper justification for meeting these costs out of public funds. The coordinator states that in accordance with resolution No. 482 and in the interests of due process, the opportunity was provided to show “proper justification for payments made” with payees being allotted a certain amount of time to produce evidence of their entitlement.
14. 495. As to the judges hearing the cases, the coordinator states that the appointment of magistrates and judges is the responsibility of a public authority other than the executive, with constitutional duties and guarantees of autonomy and independence. Jueces de decongestión (judges called in to clear a backlog of cases) are widely used in Colombia as the caseload is such that timely completion of proceedings is impossible; so as to avoid impunity in cases of great import, judges and magistrates are made and appointed by the competent bodies.
15. 496. As to the drawing up of administrative acts by civil servants of the group during the
16. 2003–04 period despite the fact that this was not within their competence, the coordinator states that, in order to carry out the important task with which it had been entrusted, the Ministry of Labour and Social Security issued resolution No. 3137 of 1998, creating the internal working group on the management of FONCOLPUERTOS, which answered to the office of the Minister. In accordance with abovementioned Legislative Decree No. 1689, the group was set up specifically to deal with judicial proceedings, labour claims, payments due from the Fund on judicial order, labour-related reconciliations and payments to creditors, and the administration and revision of the pensions payroll. Later on the specific duties of the posts of the group’s staff were set out in resolution No. 219 of 2000, in order to implement the legal purpose laid down in section 6 of Legislative Decree No. 1689 of 1997. Following on from Act No. 790 of 2002, which ordered the abovementioned merger, Decree No. 205 of 2003 set out the objectives, organic structure and duties of the Ministry of Social Welfare in general, but not those of the group itself. However, the group is covered by resolution No. 2 of 2003 which creates, organizes and authorizes internal working groups within the Ministry of Social Welfare and determines the duties to be assigned to them.

C. The Committee’s conclusions

1. 497. The Committee takes note of the allegations presented by the CTC, CUT and CPC dated 28 May 2007 and 22 May 2008 and the communications of the CPC dated 23 August and 19 September 2007 referring to non-compliance with the collective labour agreement between the trade unions of Puertos de Colombia and COLPUERTOS. The Committee notes that according to the allegations the liquidation of the abovementioned enterprise was ordered through Act No. 1 of 1991, and FONCOLPUERTOS with legal personality and administrative autonomy was created to deal with the social liabilities of the enterprise (Regulatory Decrees Nos 35 and 36). The Committee notes that, owing to a series of irregularities, Legislative Decree No. 1689 of 1997 was issued ordering the closure and liquidation of FONCOLPUERTOS, with an internal working group being set up in the Ministry of Labour (now the Ministry of Social Welfare) through resolution No. 3137 of 1998, in order to manage the social liability of COLPUERTOS.
2. 498. The Committee notes that the complainant organizations state that the abovementioned working group ordered suspension, pending administrative rulings, of the payment of over 400 invalidity pensions and suspended payments to a further 700 persons; that it is in breach of the legislation on survivors’ benefits; that it has terminated and reduced existing pensions (600 pensions), ordered the capping of 192 pensions, excluded 337 pensioners from the pension payroll and cut pensions by up to 50 per cent in other cases. The complainant organizations also allege that special judges were appointed to examine these issues and that there has been breach of due process.
3. 499. The Committee notes the Government’s statement in this regard to the effect that the former COLPUERTOS workers enjoyed their right of association and were able to make use of the administrative and legal mechanisms at their disposal, and that the issues in dispute are not related to freedom of association. The Committee notes that the Government transmits the report sent by the coordinator of the working group stating that between 1991 and 1993 five collective agreements were signed in COLPUERTOS. The Committee also notes that, according to the coordinator, while FONCOLPUERTOS was in operation irregularities took place that were notorious throughout Colombia and led to the liquidation of the fund and the bringing of numerous legal proceedings. The Committee notes that according to the coordinator all these matters are being investigated by the labour courts and also by the criminal courts because offences were committed including double payment and undue payment of pensions; aggravated fraud; falsification of public documents and procedural fraud against the Treasury, involving amounts in excess of 298,786 million Colombian pesos. As a result, 708 individuals have been convicted.
4. 500. With regard to the suspension of the payment of 400 invalidity pensions, the Committee notes that the coordinator of the working group states that invalidity pensions are governed by binding rules and that, in the present case, following the relevant inquiries, it was shown that in some cases payments were being unduly made to persons suffering from no incapacity at all. As to the suspension of payment of a further 700 pensions, the Committee notes that, according to the coordinator’s report, this was owing to the applicants’ failure to produce proper justification. As to the delay in processing applications for survivors’ pensions, the coordinator admits that because there are so many beneficiaries there have been some delays, but states that everything possible is being done to improve the situation. As to deductions and reductions in pensions, the Committee notes the coordinator’s statement that these were made in the light of a thorough in-depth study and only where it was proved that the pension paid was greater than that provided for under the legislation or collective agreement. As to the appointment of special judges, the Committee notes the coordinator’s statement that the judges known as “jueces de decongestión” were appointed for the purpose of speeding up legal proceedings, clarifying the facts and convicting offenders and that in the present case this was necessary because there were so many cases pending.
5. 501. The Committee notes the extensive documentation provided both by the complainant organizations and by the Government. It observes that, according to this evidence and to the statements submitted by the parties, the present complaint concerns the suspension and reduction of pensions payments to the former workers of COLPUERTOS, provided for under the legislation and collective agreements. The Committee observes that the abovementioned measures were adopted within the framework of inquiries carried out to determine whether the pensions were indeed payable, in the course of which breaches of the law, procedural fraud, undue payments and other offences were uncovered, in some cases involving the payment of sums considerably greater than those provided for in the legislation and collective agreements, as well as payments to individuals who had no right to such benefits. The Committee observes that the judicial authorities, both labour and criminal, have examined many individual cases and that many more remain pending. The Committee observes furthermore that the individuals concerned have brought numerous administrative and judicial actions against such decisions, including applications for amparo (protection under the Constitution), and that in some cases these actions have been successful.
6. 502. However, having examined the allegations and the Government’s reply, the Committee takes the view that the issues raised are not related to freedom of association. Under these circumstances, unless the complainant organizations specify the manner in which the facts alleged affect freedom of association, the Committee will not pursue its examination of these matters.