Rapport définitif - Rapport No. 190, Mars 1979

1. 128. The Committee has already examined this case, in February and November 1978, and at each of these sessions it submitted the interim conclusions contained in its 177th and 187th Reports' respectively.
2. 129. Colombia has ratified 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. Previous examinations of the case by the Committee

1. 130. The case relates essentially to the alleged death, imprisonment, lay-off or dismissal of large numbers of trade union officials and militants and to the suspension of several trade union organisations or the withdrawal or denial of their legal status. According to the complainants, these incidents have taken place mainly - though not entirely - as a result of a 24-hour general strike called on 14 September 1977 by the trade union federations of the country.
2. 131. When examining the case, the Committee took note of Decree No. 2004 adopted by the Colombian Government on 25 August 1977. Under this Decree, and for the duration of the state of emergency, persons responsible for organising, leading, instigating, encouraging or promoting in any way the total or partial, continuous or staggered stoppage of normal occupational or other activities are liable to 30 to 180 days, imprisonment. The sentence can be passed by the governors, administrators and commissioners and by the mayor of the special district of Bogotá, by means of a resolution specifying the grounds adduced therefor. These penalties or participation in the above-mentioned work stoppages are moreover considered to be reasonable grounds for dismissal. The Government confirmed that the Decree had been adopted as a preventive measure to contain the national strike of 14 September 1977. While observing that the versions of the events given by the complainants and by the Government were contradictory, the Committee had noted the severity of the methods employed in response to a 24-hour strike which seemed to have been largely an expression of discontent by a great many workers since it was organised by all the major tendencies of the Colombian trade union movement. The Committee had considered that, if no steps were taken, the repercussions of the strike were liable to cause a lasting deterioration in industrial relations in the country.
3. 132. With regard to the deaths of trade unionists, the Government had stated that it was not for the Ministry of Labour to conduct an inquiry but that this was rather a matter for the courts. The Committee explained that it in no way sought to question the prerogatives of the judiciary, considering, on the contrary, that a regular legal procedure conducted by the competent courts would permit a fully objective and independent elucidation of the facts and determination of responsibilities.
4. 133. The Government also stated that a limited number of dismissal authorisations had been granted following the general strike of 14 September 1977. The Committee observed, however, that the complainants had mentioned several hundred dismissals of workers and trade unionists and that, in particular, the ICFTU had referred to some 380 measures of this nature, indicating the names of the undertakings or unions concerned, in an annex to its complaint. In regard to other cases, the Committee had considered that dismissals following strikes involved serious risks of abuse and serious threats to freedom of association. It had also considered that the development of labour relations could be impaired as a result of an inflexible attitude being adopted in the application of excessively severe penalties to workers who participated in strike action. In view of these considerations, the Committee had felt that it would be desirable for the Government to take measures to promote the reinstatement of the dismissed workers.
5. 134. The Government had further stated that the withdrawal of legal status was a prerogative of the ordinary labour courts. The Committee had, in fact, noted that the most severe penalty (laid down in section 380 of the Labour Code) that could be imposed on a trade union for contravening the provisions of the Code was the withdrawal of its legal status and the dissolution of the union; this was a measure taken by the labour courts at the request of the Ministry of Labour. Nevertheless, the Committee also noted that, in the event of a strike being declared illegal, the Ministry could decide to suspend the legal status of a union for up to six months, and even to dissolve it (section 450). In these circumstances, the Committee recalled the importance of the principle laid down in Article 4 of Convention No. 87 according to which workers' and employers' organisations should not be liable to be dissolved or suspended by administrative authority. For this principle to be properly complied with, moreover, it would not suffice for legislation to provide for a right of appeal against administrative decisions; it would be necessary to stipulate that such decisions could not become effective until the statutory period had expired without an appeal being lodged against them or until they had been confirmed by a court decision. It was also important that judges should be able to inquire into the substance of the matter before them.
6. 135. The Committee added that these principles were particularly important in the case of Colombia since, under section 372 of the Labour Code, no union could operate as such or carry out functions conferred on it by law and by its own rules or exercise, its own rights without having been granted legal status. Furthermore, the union could function only for so long as such legal status remained valid. Consequently, the suspension of the legal status of a union made it impossible for it to promote and defend the interests of its members. In the light of these considerations, the Committee felt it desirable that the Government should take the necessary steps to bring the legislation fully into conformity with the principles set forth above.
7. 136. The Government did not communicate its observations on the arrest of trade unionists. In this respect, the Committee expressed its concern regarding the summary nature of the procedure laid down in the above-mentioned Decree No. 2004. The bringing of detained persons before the appropriate judge without delay was one of the civil liberties which should be ensured by the authorities in order to safeguard the exercise of trade union rights.
8. 137. In these circumstances, and on the recommendation of the Committee, the Governing Body decided in November 1978:
   • (a) as regards the deaths of trade unionists, to draw the attention of the Government to a need for complete inquiries to be made in such cases in order to elucidate the facts and determine responsibilities;
   • (b) as regards the dismissal measures, to draw the attention of the Government to the principles and considerations recalled above and to suggest to in the desirability of taking the necessary steps to promote the reinstatement of the dismissed workers;
   • (c) as regards the suspension of the legal status of a number of trade unions or their dissolution, to request the Government to take the necessary steps to bring the legislation fully into conformity with Article 4 of Convention No. 87 according to which organisations of workers should not be liable to be suspended by administrative authority, and to re-examine the situation of the trade unions which were dissolved on the occasion of the general strike of 14 September 1977;
   • (d) as regards the arrests of workers and trade unionists, to express its concern at the summary nature of the procedure provided for under Decree No. 2004 and to request the Government to provide information on the present situation of the persons arrested during the general strike of 14 September 1977.

B. Reply of the Government

1. 138. The Government replied by letters dated 10 and 17 January 1979. As regards the inquiries into the deaths of persons, it states that such inquiries are a matter for the legal authorities and that the Government does not have access to the documents on the case. Nevertheless, the Government continues, it is impossible to maintain, on the basis of available information, that there were trade unionists among those who died on 14 September 1977: the list (which the Government has communicated) of the 14 persons who died that day does not include the name of any trade union leader or any member of a trade union organisation.
2. 139. The Government also states that it is not informed officially when workers are dismissed except when an administrative authorisation is required, which is seldom. Decree No. 2004, issued on the basis of the state of emergency, provides that a justified cause for terminating the contract of employment is the application of penalties in accordance with the Decree or participation in the work stoppages referred to therein. An inquiry that was carried out (inevitably of a limited nature) indicates that not many dismissals took place. The Ministry of Labour is not empowered to order the reinstatement of workers who have been dismissed; this is a matter for the courts and the trade union organisations are awaiting rulings in the matter. The Government adds that in several cases judgements ordering reinstatement have already been handed down by different judges.
3. 140. The Government specifies that the Ministry of Labour has not decreed the dissolution of any union. The temporary suspension (by administrative decision), provided for in section 450 of the Labour Code, of workers' organisations in the event of a strike that is declared to be illegal may last up to six months. Measures of this kind have been taken, the Government adds, but these penalties have not exceeded two months and all the unions concerned, without exception, have seen their rights fully restored to them. The Government has submitted draft legislation to Congress whereby extraordinary powers would be granted for the revision of current labour laws on this basis, the Government proposes to inform the studies Committees that will be set up of the recommendation relating to the harmonisation of national laws and regulations with Article 4 of Convention No. 87. The Government will adopt a final decision when it has heard the opinion of the workers, the employers, the legal experts and the parliamentarians on these Committees.
4. 141. The Government goes on to say that it has not been established that the provisions of Decree No. 2004 have been applied to trade union leaders or to well-known members of their organisations. Moreover, the sentences that were imposed on the basis of this Decree to various persons for reasons connected with public order have already been served since the heaviest penalty did not exceed 180 days' imprisonment. There is no longer anyone in prison as a result of the events of 14 September 1977.

C. Conclusions of the Committee

1. 142. The Committee notes the new information communicated by the Government, and in particular its statement that no trade unionist was among those who died on 14 September 1977 nor among those who were imprisoned on the basis of Decree No. 2004; and that in any case there is no longer anyone is prison on the basis of this Decree.
2. 143. The Committee also notes the Government's statement to the effect that the Ministry of Labour has not decreed the dissolution of any union; and that the measures of suspension have come to an end. Furthermore, the Government proposes to refer the Committee's recommendations on harmonising of its laws and regulations with Article 4 of Convention No. 87. As recalled in paragraphs 134 and 135 above, the Committee has already set out a number of principles and considerations concerning this aspect of the case. It is examining the issue again, in the present report, in connection with Cases Nos. 871 and 907, also concerning Colombia.
3. 144. As regards the dismissals which took place, the Committee notes that Decree No. 2004 of 25 August 1977 authorises the dismissal of workers for strike activities during a state of emergency. The Committee considers that this provision, which must be heeded by the courts, entails serious risks of abuse and threatens freedom of association. However, it notes that, according to the Government, there have already been a number of court rulings ordering reinstatement and that not many dismissals took place on the basis of the Decree. The Committee considers it desirable to be kept informed of developments in the situation in this respect.