Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 372, Junio 2014

1. 59. The complaint is contained in communications dated 1 August 2011 and 13 April 2012 from the Single Confederation of Workers of Colombia (CUT) and the Trade Union of Official Employees and other Public Servants of the Fund for Popular Housing (SINTRACVP).
2. 60. The Government sent its observations in communications dated 22 March and 6 December 2013.
3. 61. 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. 62. The complainant organizations allege that the Colombian authorities, of both the capital district of Bogota and, at the national level, have repeatedly denied the right of the workers of the Fund for Popular Housing (hereinafter the Fund) to bargain collectively and to assert the rights recognized in the collective agreements in force, which the Fund has signed, on the pretext that a change in the legal nature of the entity has converted the workers in question into public employees. The complainant organizations indicate that the right of the workers to employment stability, in particular, is being violated, a right which is recognized in the collective agreements in force within the Fund, by opening up the posts of several leaders and members of the SINTRACVP to a public competition.
2. 63. To support their allegations, the complainant organizations indicate that: (i) the Fund is a public entity that belongs to the administration of the capital district of Bogota. Founded in 1942, it is an autonomous legal entity that, as is established in its statutes, performs exclusively technical functions; (ii) the SINTRACVP was founded in 1964. Between 1964 and 1992, the Fund and the SINTRACVP concluded 12 collective labour agreements, the last one in November 1992; (iii) several clauses of those agreements remain valid in accordance with the provisions of section 478 of the Substantive Labour Code; and (iv) in particular, the clause on stability contained in the collective agreements (which provides that the employment contracts of all staff of the Fund are indefinite and may only be terminated when a number of the just causes expressly referred to in the collective agreement can be established), and the clause providing for the inclusion of the clauses contained in the collective agreements in all the employment contracts of the employees of the Fund, remain fully in force.
3. 64. The complainant organizations add that a labour dispute began in 1993 that led to the dismissal of several workers. In 1995, a significant number of workers, all of whom were members of the trade union and some of whom members of the organization’s executive committee, were dismissed without the requirements set out in the collective agreement in force being met and without trade union immunity being waived. A number of the dismissed workers submitted individual applications for reinstatement, on which the courts began to rule as from 2000.
4. 65. In 2001, the Labour Appeals Chamber of the Supreme Court of Justice handed down a ruling rejecting one of the abovementioned applications for reinstatement submitted by two female workers, arguing that, in the view of the Chamber, the Fund was a public entity and that the applicants had the status of public employees. However, out of more than 100 applications submitted, 24 led to a reinstatement, the ruling handed down by the Constitutional Court (T-510/02) being one of the most noteworthy legal decisions issued in favour of the workers. Another group of workers also had to institute proceedings to be reinstated to their respective posts, as had been ordered by the ordinary labour courts, and were subsequently issued with a legal order reinstating them as official employees and including them among the staff of the entity in question, which allowed them to reclaim the benefits provided for in the collective labour agreements.
5. 66. The complainant organizations state that, at the same time, in 1996, the administration of the Fund unilaterally registered the trade union members into the public administration, considering them to be public employees. The workers concerned contested that decision, especially because, at that time, public employees were not eligible to bargain collectively. Their complaint was found to be admissible and, that same year, the National Civil Service Commission of the Administrative Department of the Public Service decided to remove the complainants from the public administration and to return them the status of official employees. In 2001, the executive committee of the Fund issued the new statutes of the Fund, according its workers the status of public employees and making their employment relationship, and removal from public administration, subject to the legal provisions in force. On the basis of an opinion issued by the Council of State in 2002, the President of the Republic issued Decree No. 1919 of 2002, following which the manager of the Fund decided to disregard the collective rights of the workers of the Fund who were considered to be public employees. The workers in question instituted proceedings, following which ruling T-069 of 2003 was handed down. The ruling provisionally recognized the collective rights of the complainants until the labour courts determined whether the collective agreements signed by the Fund applied to those workers.
6. 67. Moreover, the SINTRACVP requested the National Civil Service Commission to respect the decisions it took in 1996 to remove all the workers of the Fund from public administration. The Commission rejected the request, indicating that the workers of the Fund who occupy posts considered to be public jobs “are accorded the status of temporary employees; should they wish to continue occupying their respective posts indefinitely and enter the public administration system, they will have to participate in the merit-based competition referred to in Official Announcement No. 001 of 2005”.
7. 68. The complainant organizations state that there are currently 20 posts occupied by trade union members who were reinstated to their posts under previous rulings and who are protected by ruling T-069 of 2003 while they wait for the labour courts to rule on whether the rights set out in the collective agreements apply to them, their right to remain in the enterprise being at stake. They indicate that the Fund ignored that ruling and the clause on stability contained in the collective agreements and opened up those posts to a public competition for public employees. They add that, in 2012, the High Court of the Judicial District of Bogota, in the framework of proceedings instituted by a citizen wishing to access the public jobs at the Fund, ordered the posts currently occupied by the General Secretary of the trade union, Ms Nancy Bohórquez Chacón, and the trade union legal adviser, Mr Omar Merchán Galeano, also to be opened up to a public competition.
8. 69. In the light of the above, the complainant organizations conclude that the Fund, which is an autonomous entity that performs exclusively technical functions, does not perform functions on behalf of the state administration and, therefore, its employees should be able to bargain collectively and to enjoy the benefits provided for in the collective agreements in force, and should be protected against any change in the legal nature of their relationship with the administration that would be detrimental to the trade union freedoms that they have exercised. The complainant organizations consider that the dismissal of trade union leaders with jurisdiction or of trade union members, and the inclusion of their posts in the list of posts that must be filled by means of a public competition, violate the clause on employment stability contained in the collective agreements, which, in turn, violates the right of trade unions to organize. Therefore, the complainant organizations request the Committee to urge the Government to take the necessary steps to ensure full respect for trade union rights and for the right of the workers of the Fund to bargain collectively and, in more general terms, to urge the State of Colombia to regulate effectively the right of all public employees to bargain collectively without the restrictions and limitations contained in Decree No. 535 of 2009, and in accordance with Conventions Nos 151 and 154.

B. The Government’s reply

1. 70. In communications dated 22 March and 6 December 2013, the Government transmitted the observations of the Fund on the complaint submitted. The Fund states that: (i) its status as a public entity has been recognized by both the Labour Appeals Chamber of the Supreme Court of Justice and the Council of State and, therefore, those persons who provide their services to it have the status of public employees, except those persons involved in the construction and maintenance of public works, who have the status of official employees; (ii) as a consequence of the legal nature of the entity, its posts are governed by the public administration system and must be filled by means of a merit-based, public competition; (iii) there are longstanding official employees of the Fund who, in the exercise of their right to organize, founded the SINTRACVP; (iv) the administration of the Fund has always respected the fundamental right to organize, which it has proven by signing two collective agreements with the SINTRACVP, in 2012 and 2013, which apply to official employees of the Fund; (v) following the 2003 protection ruling that provisionally recognized the collective rights of a number of workers, until the labour courts determined whether the collective agreements signed by the Fund applied to them, four sets of ordinary labour proceedings were instituted. In one case, the labour courts issued a definitive ruling that the workers in question were public employees and that the collective agreements signed by the Fund did not apply to them. In the other three cases, a decision has yet to be taken on the appeals filed by the complainants; and (vi) the Fund informed the court in question that it would withdraw the temporary protection at the beginning of the 2013 tax year granted by the protection ruling to the workers affected by the definitive ruling mentioned in the previous point.
2. 71. The Government indicates that, in the light of the information provided by the Fund, it is clear that the context in which the acts that are the subject of the complaint took place did not necessarily arise from the Fund’s disregard for Conventions Nos 87, 98, 151 and 154 but from the determination of the legal nature of the entity and, therefore, from the classification of the posts occupied by the staff of the Fund, on which the domestic high courts have ruled on several occasions. In this regard, the Government states that the complainant organizations have failed to demonstrate why the institutional adjustment of the entity, in accordance with the legislation in force, constitutes a violation of the ILO Conventions concerning freedom of association and collective bargaining, as there is no causal link that can determine that acts undermining freedom of association and the right to organize were committed.
3. 72. The Government adds that, notwithstanding the above, the parties were summoned to a meeting before the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT), on 13 February 2013, with the aim of reaching an agreement that could resolve the present complaint, during which no agreement was reached, as the Fund considered that the different judicial authorities had confirmed the legal nature of the entity and the classification of the posts resulting from it.

C. The Committee’s conclusions

1. 73. The Committee notes that the present case refers to the alleged violation of the right of the workers of the Fund to bargain collectively, and especially of their right to enjoy the rights recognized in the collective agreements in force within the entity in question (particularly the clause on employment stability), the Fund having been determined to be a public entity and its workers having been classified as “public employees”. The Committee also notes that the allegations contained in the complaint refer specifically to the situation of a group of 20 workers, which include the General Secretary and the legal adviser of the SINTRACVP, who have both been employees of the Fund since 1992 and 1978, respectively, and whose posts have been, or are about to be, opened up to a public competition in accordance with the legislation governing public jobs and public administration, which, according to the complainant organization, violates their right to employment stability recognized in the collective agreements signed by the Fund until 1992.
2. 74. The Committee takes note of the Government’s reply to the effect that the facts that are the subject of the complaint are not necessarily related to the Fund’s disregard for the ILO Conventions concerning freedom of association, but to the determination of the legal nature of the entity and, therefore, to the classification of the posts occupied by the staff of the Fund as public jobs, on which the domestic high courts have ruled on several occasions since 2001, and that, as a consequence of this legal nature, the posts within the entity are governed by the public administration system and must be filled by means of a merit-based, public competition. The Committee also takes note of the information provided by the Fund and transmitted by the Government indicating that, following the 2003 protection ruling that provisionally recognized the collective rights of a number of Fund workers until the labour courts determined whether the collective agreements signed by the Fund applied to the workers in question, four sets of ordinary labour proceedings were instituted; that in one case, the labour courts made a definitive ruling that the workers in question were “public employees” governed by administrative law and that the collective agreements signed by the Fund did not apply to them, while in the other three cases, a decision has yet to be taken on the appeals filed by the complainants. Moreover, the Committee notes that, in 2012 and 2013, the Fund signed two collective agreements with the SINTRACVP, the scope of which is expressly limited to “official employees” of the Fund.
3. 75. Lastly, the Committee notes that the parties were summoned to a meeting before the CETCOIT, on 13 February 2013, with the aim of reaching an agreement that could resolve the present complaint, during which no agreement was reached, as the Fund considered that the different judicial authorities had confirmed the legal nature of the entity and the classification of the posts resulting from it.
4. 76. The Committee notes that the facts that are the subject of the present complaint took place in the context of a dispute over the legal nature of the Fund and the resulting legal status of its workers (“public employees” to whom the law governing public administration would apply or “official employees” to whom the Labour Code would apply). In this regard, the Committee notes that, following several decades during which the workers of the Fund were considered to be official employees, linked to the entity through an employment contract, a change in the legal status of those workers has taken place after the legal nature of the Fund was determined to be that of a public entity, on account of which the workers of the Fund are now considered to be “public employees”, except those persons involved in the construction and maintenance of public works. The Committee notes that the change in the legal status of the workers of the Fund, who are now considered to be “public employees”, was provided for in the new statutes of the Fund adopted in 2002, and has been endorsed by both the Labour Appeals Chamber of the Supreme Court of Justice and the Council of State.
5. 77. Recalling that currently, under Decree No. 1092 of 2012, the Colombian legal order also recognizes the right of public employees to bargain collectively, the Committee notes that the relevant aspects of the present complaint deal with what is essentially a legal dispute over whether the collective agreements signed by the Fund up until 1992 (and especially the clause on employment stability) still apply to a group of 20 workers from the Fund who, when the public nature of the entity was determined, became “public employees” subject to the law governing public administration. The Committee recalls that paragraph 6 of the Collective Agreements Recommendation, 1951 (No. 91), provides that “disputes arising out of the interpretation of a collective agreement should be submitted to an appropriate procedure for settlement established either by agreement between the parties or by laws or regulations as may be appropriate under national conditions”. Noting that the above point of law is currently the subject of various legal proceedings, the Committee requests the Government to keep it informed of the rulings handed down in those proceedings.
6. 78. Furthermore, the Committee notes that the 20 workers mentioned include two leaders of the SINTRACVP, the General Secretary, Ms Nancy Bohórquez Chacón, who has been working for the Fund since 1992, and the legal adviser, Mr Omar Merchán Galeano, who has been working for the Fund since 1978. Recalling that it has pointed out that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 804], the Committee requests the Government to take the necessary steps to ensure that opening up several posts within the Fund to a public competition does not lead to the dismissal of the abovementioned trade union leaders.