Rapport définitif - Rapport No. 104, 1968

1. 55. The complaint by the Workers' Trade Union of the Colombian National University was made in a communication sent directly to the I.L.O and dated 5 September 1967. The text was transmitted to the Colombian Government, which sent its observations in a letter dated 17 October 1967.
2. 56. Colombia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 57. The complainants base their complaint on the following assertions: created in 1945, the Workers' Trade Union of the Colombian National University has since that date steadily fought to secure acceptance of its claims and to obtain the right of collective bargaining. A first collective agreement was signed after claims had been filed in 1961, and a second in 1962. In December 1963 the union submitted further claims, but the then Rector declined to accept them on the grounds that the workers represented by the union were public employees and as such were not entitled to make claims or sign collective agreements. The resulting dispute was settled in August 1964 to the union's satisfaction, and a third collective agreement was concluded. The latest collective agreement was signed in 1966, after negotiations between the parties about claims submitted by the union in November 1965.
2. 58. The complainants allege that, since this last agreement was due to expire on 31 December 1966, they submitted further claims on 9 December 1966, but that the Rector of the university informed the union that he did not intend to engage in negotiations on these claims, on the grounds that university employees were not entitled to bargain collectively. The complainants further state that this position was corroborated by the Minister of Labour in an opinion dated 23 December 1966.
3. 59. The complainants conclude by declaring that the Government's attitude overrides a long-standing, hard-won right enjoyed by the union, and is a breach of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
4. 60. In its observations the Government quotes sections 414 and 416 of the Labour Code, which show that all servants of the State enjoy the right to organise. However, the Government states that such persons are divided into two separate classes: " public employees " and " public workers ", and that the rules governing the exercise of the right of association are not the same for the two classes in question.
5. 61. While, according to the Government, the public " workers' " union enjoys this right, the public " employees' " union can neither submit claims nor enter into collective agreements (section 416 of the Labour Code).
6. 62. The Government explains that up to 19 December 1963, under the legislation whereby servants of the State were classified into two categories, it was entirely true to say that two categories existed in the Colombian National University, i.e. public " employees ", not entitled to make claims or to enter into collective agreements, and public " workers ", who enjoyed these rights. Hence, the Government continues, under section 416 of the Labour Code, whereby " unions of public employees shall not be entitled to make claims or conclude collective agreements ", while " unions of public workers shall enjoy the same rights as other workers' unions and their claims shall be transmitted under the same conditions as for other unions ", it was perfectly lawful, up to 19 December 1963, to allow the workers of the Colombian National University, organised in a union, to submit claims and to enter into collective agreements.
7. 63. However, the Government continues, Act No. 65, which came into effect on 19 December 1963, establishes the status of the Colombian National University and provides, inter alia, that the relationship between the staff and the university shall be subject to public law, so that the staff in question belongs to the class of " public employees ", and hence is entitled neither to make claims nor to enter into collective agreements.
8. 64. In conclusion the Government states that the permission given to the Workers' Trade Union of the Colombian National University, after adoption of Act No. 65 on 19 December 1963, to submit claims and conclude collective agreements was a manifest breach of the law. " Clearly ", the Government continues, " such a breach of the law creates no right, much less that of continuing to break it."

B. B. The Committee's conclusions

1. 65. In the light of the Government's explanations it appears that the refusal to enter into collective bargaining with the complaining organisation was in accordance with the national legislation in force. The Committee wishes to state that, nonetheless, the right to present their claims is generally recognised to exist even in the case of employees belonging to the category of workers referred to here. Furthermore, the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), to which Colombia is incidentally not a party, stipulates in Article 6 that it " does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their right or status in any way ", but it should be remembered that public servants, who do not come within the scope of this Convention, should normally be covered by national legislation specifying their proper rights and duties.