Informe definitivo - Informe núm. 392, Octubre 2020

1. 496. The complaint is contained in a communication dated 29 July 2015 from the General Confederation of Labour (CGT) and the Union of Official Workers in the Road Repairs and Maintenance Special Administrative Unit of Bogotá (SINTRAUNIOBRAS).
2. 497. The Government sent its observations in communications dated 13 July 2017, 5 January, 30 October 2018 and 10 August 2020.
3. 498. 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. 499. In a communication dated 29 July 2015, the complainants allege that the Road Maintenance Unit of Bogotá (hereafter the public body) took disciplinary measures against two members of the trade union organization SINTRAUNIOBRAS in an irregular manner. The complainants refer firstly to the situation of Mr José Manuel Fonseca Rodríguez, a member of the board of directors of SINTRAUNIOBRAS, who, as a result of disciplinary proceedings that began in 2011, was dismissed in 2014 and barred for ten years, according to the complainant without due consideration of his trade union immunity and without respecting the rules of due process and the right to a defence established in law and in the public body’s collective agreement. Specifically, the complainants allege in this regard that: (i) Mr Fonseca Rodríguez was the subject of disciplinary proceedings in 2011, accused of misappropriation for allegedly having permitted the improper use of public materials and machinery to pave private car parks; (ii) the worker’s trade union immunity, which meant that the employer would have to request the authorization of a judge before dismissing him, was not respected; (iii) without having obtained the aforementioned legal authorization, Mr Fonseca Rodríguez was dismissed and barred for ten years by means of an administrative decision by the public body on 8 July 2014; (iv) the aforementioned administrative proceedings were not carried out in accordance with the time limit of two months established in the Labour Code of Procedure, during which an employer that has become aware that an offence has been committed by a trade union representative must make a legal request to lift their immunity; and (v) the clauses of the public body’s collective agreement stating that members of a trade union organization who are the subject of disciplinary proceedings shall be accompanied during appearances by a trade union representative were also violated. The complainants add that legal action before the administrative disputes tribunal is ongoing.
2. 500. In addition, the complainants allege that Mr Alberto Varela Herrera, an active member of SINTRAUNIOBRAS, was also the subject of disciplinary proceedings in 2011, leading to the cancellation of his employment contract and a ten-year bar, and that there were procedural irregularities in that case.

B. The Government’s reply

1. 501. In its first communication dated 13 July 2017, the Government initially sent the response of the public body to the complainants’ allegations. With regard to the situation of Mr Alberto Varela Herrera, the public body states that the worker was not a trade union leader, he therefore did not have trade union immunity, and that the disciplinary sanction imposed on him for having committed an offence did not in any way violate the principles of freedom of association. With regard to the situation of Mr José Manuel Fonseca Rodríguez, the public body states that: (i) by means of an administrative decision dated 8 July 2014, the public servant was found to have committed the offence of misappropriation as laid out in article 398 of the Criminal Code; (ii) on the basis of article 142 of the Single Disciplinary Code, Mr Fonseca Rodríguez was dismissed and given a general bar for a period of ten years; (iii) this sanction was put into effect on 13 November 2014 by means of Resolution No. 571 issued by the public body; (iv) on 20 January 2015, the Director-General of the administrative body revoked Resolution No. 571 because it was contrary to labour legislation on trade union immunity; (v) the worker’s immediate reinstatement to his former position was ordered and, at the same time, legal proceedings were initiated to request the lifting of his trade union immunity; (vi) on 3 May 2016, Circuit Labour Court 14 ruled in the first instance that Mr Fonseca Rodríguez’s trade union immunity should be lifted; and (vii) the aforementioned first instance ruling was appealed to the Labour Chamber of the Supreme Court of Bogotá, and the second instance ruling remained pending. The enterprise adds that, since the decision to reinstate Mr Fonseca Rodríguez, pending the decision on the lifting of his immunity, he has not returned to work. They also note that, as a result of the complaint presented to the ILO, the Labour Inspectorate carried out a preliminary investigation of the public body for alleged violations of collective labour law; that on 21 June 2016, the public body attended labour proceedings convened by the Labour Inspectorate, which SINTRAUNIOBRAS did not attend. Lastly, the public body states that the Ministry of Labour has not, to date, taken any other procedural measures.
2. 502. The Government goes on to provide its observations on the complainants’ allegations regarding Mr Fonseca Rodríguez. The Government notes that, the labour courts, both in first and second instance (appeal ruling from the Supreme Court of Bogotá of 27 April 2017), in full compliance with current law, authorized the lifting of Mr Fonseca Rodríguez’s trade union immunity because he had been dismissed for a just cause. The Government adds that, as the Committee on Freedom of Association has itself pointed out, although trade union officials should not suffer prejudice by reason of their trade union activities, holding trade union office cannot become a kind of immunity and that, in this case, the complainants have not presented any evidence of anti-union discrimination against Mr Fonseca Rodríguez, therefore the Committee should not continue its examination of this case.
3. 503. In a communication dated 30 October 2018, the Government reported that the administrative labour investigation that was triggered by the presentation of the complaint to the Committee concluded with a decision dated 30 August 2017 from the Coordination Committee of the Conflict Resolution and Conciliation Group in the Bogotá Territorial Directorate not to initiate any sanctions against the public body. In a communication dated 10 August 2020, the Government reiterates this information.

C. The Committee’s conclusions

1. 504. The Committee notes that the allegations in this case refer to alleged irregularities in the disciplinary dismissal from a public body of two workers who are members of the trade union organization SINTRAUNIOBRAS.
2. 505. With regard to Mr José Fonseca Rodríguez, the Committee notes that the complainants allege that: (i) the worker was the subject of disciplinary proceedings that began in 2011 for allegedly having permitted the improper use of public materials and machinery for private use (misappropriation); (ii) although the worker had trade union immunity as a result of being a member of the board of directors of SINTRAUNIOBRAS, the public body dismissed him in 2014 without having made a legal request to lift his immunity in advance, as required by national law; and (iii) in addition, the worker’s dismissal was not carried out in accordance with the time limits established in the Labour Code of Procedure with regard to the lifting of trade union immunity or the clauses of the applicable collective agreement stating that the trade union member shall be accompanied by a trade union representative throughout the disciplinary proceedings.
3. 506. The Committee observes that, on the other hand, both the Government and the public body state that: (i) the disciplinary proceedings against Mr Fonseca Rodríguez led to the conclusion that he had committed a serious offence; (ii) the courts, both in first and second instance, have ruled that the lifting of Mr Fonseca Rodríguez’s trade union immunity was justified and that the disciplinary proceedings complied with all the relevant standards; and (iii) the Labour Inspectorate has not found any freedom of association violations in the public body.
4. 507. The Committee observes that it appears from the above, as well as from the text of the legal rulings supplied by the parties that: (i) as a result of disciplinary proceedings that began in 2011, in November 2014 the public body dismissed Mr Fonseca Rodríguez and barred him for ten years because he had committed a serious offence; (ii) the dismissal order was cancelled by the public body itself in January 2015, because a legal request to lift the trade union immunity of the worker – who was a reserve member of the board of directors of SINTRAUNIOBRAS – had not been made in advance; and (iii) the public body’s 2015 request to lift the worker’s trade union immunity has been approved by the courts, both in first and second instance, which resulted in his definitive dismissal.
5. 508. The Committee recalls that the principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds a trade union office confers immunity against dismissal irrespective of the circumstances [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1119]. The Committee also recalls that it is not called upon to pronounce upon the question of the breaking of a contract of employment by dismissal except in cases in which the provisions on dismissal imply anti-union discrimination [see Compilation, para. 1085]. The Committee observes that in this case the courts, both in first and second instance, found that the worker’s dismissal was justified by the commission of a serious offence and that, beyond the alleged non-compliance with the rules relating to trade union immunity, the complainants made no allegation to the national authorities that the sanction imposed on Mr Fonseca Rodríguez had any anti-union motivation, element that has been corroborated by the investigations carried out by the Labour Inspectorate. In these circumstances, the Committee will not pursue its examination of this allegation.
6. 509. With regard to Mr Alberto Varela Herrera, a member of SINTRAUNIOBRAS, the Committee notes the complainants’ allegation that he was the subject of disciplinary proceedings in 2011, leading to the cancellation of his employment contract and a ten-year bar, and that there were procedural irregularities in that case. The Committee also notes that the public body states that Mr Varela Herrera was dismissed for committing an offence, that he was not a trade union leader and he therefore did not have trade union immunity, and that his dismissal had no relationship to his trade union membership.
7. 510. Observing that the complainants have not provided specific details about the alleged irregularity in Mr Varela Herrera’s dismissal or its anti-union nature, the Committee will not pursue its examination of this allegation.