Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 292, Mars 1994

266. The Committee examined these cases at its meetings of February and May 1993 when it presented an interim report to the Governing Body (see 286th and 287th Reports of the Committee, paras. 360-384 and 490-505, approved by the Governing Body at its 255th and 256th Sessions (March and May 1993)). The Government sent new information in a communication of November 1993.

1. 266. The Committee examined these cases at its meetings of February and May 1993 when it presented an interim report to the Governing Body (see 286th and 287th Reports of the Committee, paras. 360-384 and 490-505, approved by the Governing Body at its 255th and 256th Sessions (March and May 1993)). The Government sent new information in a communication of November 1993.
2. 267. Colombia has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), as well as the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the cases

• Case No. 1620
  268. 268 In its communication of 30 January 1992, the CLAT had denounced the infringement of the rights of workers and their organizations in different enterprises. According to the CLAT, workers of the SINTRACEITALES trade union in the Empresa Aceitalera S.A. enterprise, in defence of their right to collective bargaining, did not accept the new labour system established by Act No. 50 of 1990 under which, with the authorization of the superintendency of companies and the Ministry of Labour, the enterprise created six subsidiary enterprises and announced its own liquidation so as to leave more than 800 workers of the said trade union without jobs. In the same way, in the Agrarian, Industrial and Mining Credit Fund, in the National Railways, in the Bank of the Republic, in TELECOM (the allegation concerning this enterprise is examined in Case No. 1686), in the Telephone Company of Bogotá, in the Territorial Credit Institute and COLPUERTOS, which are state-dependent enterprises, policies of "adjustment and privatization" were carried out, with trade union activity being subject to a "scorched earth" policy. More specifically, in the Colombian Ports enterprise (COLPUERTOS), under the provisions of Decree No. 035, the Government rejected the provisions of the recently concluded collective agreement, thereby violating Colombian legislation which guarantees the right to collective bargaining. This situation affects more than 2,000 workers who are on the point of retirement and who, as a result of the Government Decree mentioned above, will only be entitled to termination allowances. Furthermore, the CLAT points out that in the San Juan de Dios Hospital in Santa Marta, more than 500 workers have gone on strike following an attempt by the Government to dismiss workers with more than ten years' service without providing the compensation required by the provisions of the respective collective agreement. Finally, the CLAT alleges that the National Community Roads Fund will cease activities in 1993 and dismiss more than 1,500 workers who will join the ranks of the 150,000 workers whom the Colombian State is threatening to dismiss to "remedy the fiscal deficit".
  269. 269 In the absence of any observations from the Government on these allegations, at its meeting of February 1993 the Committee made the following recommendation (see 286th Report of the Committee, para. 384): "The Committee requests the Government to furnish its observations on the allegations concerning violations of trade union rights in enterprises named by the CLAT".
• Case No. 1702
  270. 270 In its communications of 19 March and 21 April 1993, the WCL stated that the reorganization of the administration of the department of Córdoba resulted in the dismissal of seven trade union leaders and 200 members of the National Union of State Employees (UTRADEC), who were not compensated. At its meeting of May 1993, in the absence of any observations from the Government on these allegations, the Committee noted that these allegations were forwarded to the Government recently and requested it to respond as soon as possible (see 287th Report, para. 505).

B. The Government's replies

1. 271. In its communication of November 1993, the Government states that when the National Government adopted the new economic plan based on the internationalization of the economy, and in compliance with the constitutional mandate of modernizing the State in line with just social, political, territorial and economic needs (article 20 transitional of the National Political Constitution), it was anticipated that the labour market would experience some economic maladjustment which would affect the employment of some long-standing workers and require the introduction of vocational training, retraining and advanced training programmes in line with the new methods, processes and technological developments required for private and some state enterprises. In an act of social responsibility, the Government had studies carried out on establishing which sectors of the economy would be more affected by the opening up of the economy and what would be its effect on employment, with a view to establishing programmes to deal with cases of termination of employment and facilitate the re-recruitment of workers concerned, in accordance with economic circumstances and the occupational profile of the workers.
2. 272. In response to this official concern, an integrated labour adaptation system (SAL) was drawn up and implemented which covered all private enterprises in the country which had to dismiss workers because of the temporary or definitive closing down of operations or administrative adjustments designed to increase the level of competitiveness in the external economy and the Labour Adaptation Service for the Public Sector (SAL-SP) for all public servants whose jobs would be eliminated as a result of the state modernization policies. The programme is designed to avoid the loss of jobs and to increase the employment alternatives of the workers laid off through vocational training or retraining, labour mediation or self-employment (employees, associate staff, micro or medium-sized enterprises, etc.). The Government had to apply article 20 of the new National Political Constitution, which was issued by an Act of the Constituent Assembly in 1991, which states: "... The National Government, within a period of 18 months after the entry into force of this Constitution and with account being taken of the evaluation and recommendations of a commission made up of three experts in public administration or administrative law appointed by the Council of State; three members appointed by the National Government and one in representation of the Colombian Federation of Municipalities, shall suppress, merge or restructure bodies within the executive branch, public establishments, industrial and commercial enterprises and national mixed-economy companies with a view to bringing them into line with the provisions of the present constitutional reform and in particular with the redistribution of functions and resources which it establishes." On the basis of these provisions, 62 bodies and 65,000 workers will be affected in three years, although the Government established several alternatives to assist the workers concerned: the payment of life annuities; compensation in accordance with Act No. 50 of 1990 or collective agreement, and special employment programmes through the adoption and application of Decree No. 2151 of 1992 which obliges all bodies affected to apply the labour adaptation system (SAL) in the public sector. This shows that faced with possible dismissals the Government has proposed solutions whose success will strengthen the organization of workers, either in grass-roots trade unions, industry, economic activities or sectors, pressure groups, etc.
3. 273. As regards the specific allegations made by the complainants in Case No. 1620, the Government states the following:
   • - ACEITALERA S.A. ENTERPRISE. Because of the economic crisis which it was facing, the Aceitalera S.A. enterprise went into liquidation with the knowledge of the Superintendency of Companies and the Liquidation Board, and since no solution was found to the problem, the liquidators approved the liquidation of the enterprise, which was carried out in accordance with the legal regulations. The enterprise made a request to the Ministry of Labour to authorize its closure and the respective economic study was carried out to determine the feasibility of the closure. Subsequently, workers and the enterprise, through conciliation, reached an agreement on existing differences. At no moment was there any action which might be considered as anti-trade union conduct.
   • - AGRARIAN CREDIT FUND. The administration, in accordance with the government policy for the modernization of the State (section 20 transitional of the National Constitution and executive decrees) and the restructuring of some establishments and institutions, drew up a plan for the voluntary departure of all its workers, who were given the possibility of receiving compensation which exceptionally was higher than that stipulated by the Labour Code for such cases. According to the Government, at no time was this process motivated by discriminatory anti-trade union policy.
   • - NATIONAL RAILWAYS. The process for the liquidation of this enterprise was due to the economic crisis which it had faced for many years prior to the modernization and restructuring process of state enterprises. Within the liquidation process, the enterprise established a plan for pensions, compensations and the full recognition of the social benefits of its workers. At no time was the liquidation process a result of anti-trade union policies by the enterprise or the Government.
   • - BANK OF THE REPUBLIC. This institution introduced a partial programme within the state modernization and restructuring plans. It was partial in the sense that the institution merely made reforms in certain areas and departments. There was close collaboration with the trade union organization of the body and the trade union organization itself allowed all its members full freedom in accepting or not the plans presented by the Bank for its modernization. These plans included a programme for the retirement of employees with more than 20 years' service in the institution even if workers were not of retirement age to receive a pension. At no time were collective dismissals made nor was there any anti-trade union action. To date, no judicial proceedings have been initiated against the Bank.
   • - TELEPHONE COMPANY OF BOGOTA. At the beginning of 1993, the enterprise opted for a restructuring plan. Under this plan, functions were reallocated, staff were redistributed and areas of responsibility were redefined. At no time were staff dismissed nor were there any programmes of voluntary departures. In the same way, at no time was trade union action hindered or made subject to conditions, nor was any pressure exercised against trade union officials; a proof of this is the fact that a new collective agreement was signed for the period 1 January 1994 to 31 December 1995.
   • - TERRITORIAL CREDIT INSTITUTE. No dismissals have been registered in this body and the administration of the institute has not carried out any anti-trade union policies.
   • - COLPUERTOS. This enterprise embarked on a process of restructuring which was the result of the financial and administrative crisis which had occurred in the years before the state modernization and restructuring policy (Act No. 1 of January 1991, Decree No. 035 of January 1992, Decree No. 036 of January 1992 and Resolution No. 0300 of May 1993). Notwithstanding this process, the enterprise at all times respected the standards established by the collective labour agreement for all legal purposes. Furthermore, there was a voluntary withdrawal programme for workers who wished to leave, and who could choose between special or standard compensation. The enterprise pensioned off a large number of workers who, either through collective agreement or in an agreement with the enterprise or under the provisions of the law, benefited from this prerogative. At no time did the enterprise or the Government fail to respect the acquired rights of the workers and there was no pressure exerted for the workers to select any of the alternatives proposed concerning their departure. There was constant consultation and dialogue with the trade union organizations of the enterprise concerning the departure plans and other basic aspects covered by the collective agreement. (The form of the liquidation of social benefits, pensions, compensation and bonuses was made on the basis of the collective agreements in force; the total number of workers compensated was 9,900 and the amounts paid as benefits were approximately 130 billion pesos; for the purposes of the liquidation of COLPUERTOS, account was taken of the legal system in force and there was a series of meetings between the general manager of the liquidation process and the trade union officials representing port workers during which agreements and clarifications were reached which were registered with the Ministry of Labour and Social Security.)
   • - SAN JUAN DE DIOS HOSPITAL - SANTA MARTA. There were no collective dismissals or any infringements of freedom of association at the San Juan de Dios Hospital in Santa Marta.
   • - NATIONAL COMMUNITY ROADS FUND. With regard to the allegation made by the CLAT that more than 1,500 workers will be laid off beginning in 1993, the Government states that this was one of the other government organizations included in the national plan for the modernization and restructuring of the State. These policies involved no anti-trade union activity nor collective dismissals.
4. 274. As regards the allegations made in Case No. 1702, the Government states that under the Ordinances Nos. 03 of 17 December 1991 and 07 of 12 November 1992, promulgated by the Departmental Assembly of Córdoba, and Decree No. 000845 of 31 December 1991, the local administration was restructured and some posts were suppressed and more than 200 workers dismissed. These dismissals were not the result of an anti-trade union policy but exclusively due to the restructuring plans. Trade union officials took legal action in the ordinary labour courts of Montería, and in some cases the rulings in the first instance were in favour of the "official" workers, although the superior court revoked the decision. The Government states that the other workers dismissed (public employees) were not compensated and initiated proceedings in the ordinary labour courts.

C. The Committee's conclusions

1. 275. The Committee observes that the allegations pending from its examination of these cases in February and May 1993 refer to different infringements of the rights of workers and their organizations (job stability and collective bargaining) in several enterprises, as a result of restructuring.
2. 276. The Committee notes the general observations of the Government that under the new National Constitution, it was decided to suppress, merge or restructure bodies in the executive branch, public enterprises, industrial and commercial enterprises and mixed economy companies in the public sector. According to the Government, this was due to the economic crisis and the need to modernize state enterprises and institutions. It also notes that an integrated labour adaptation system has been introduced to help all private enterprises in the country which have to lay off workers because of temporary or final closing down of operations and the establishment of the Labour Adaptation Service for the public sector on behalf of public servants whose jobs have been suppressed as a result of the state modernization policies.
3. 277. As regards the allegations made by the complainants in Case No. 1620, it was alleged that in the Aceitalera S.A. enterprise, since the workers affiliated with the trade union (SINTRACEITALES) had not accepted the new labour scheme established by Act No. 50, the enterprise established six subsidiary enterprises so as to leave more than 800 workers of the said trade union without jobs. The Committee notes the observations of the Government that this enterprise was liquidated because of the economic crisis which it was facing although workers were able to reach an agreement with the enterprise.
4. 278. The Committee notes that the Government denies that there were dismissals in the following state enterprises: Bank of the Republic, Telephone Company of Bogotá, Territorial Credit Institute, the National Community Roads Fund, and the San Juan de Dios Hospital of Santa Marta.
5. 279. As regards the Agrarian, Industrial and Mining Credit Fund, and the National Railways, the Committee notes the observations of the Government that in the first of these enterprises workers accepted a programme of voluntary departure and that the second enterprise was liquidated as a result of financial problems, with full compensation being provided to workers and without the liquidation having any anti-trade union purpose. As regards the COLPUERTOS enterprise, the Committee notes that according to the Government this enterprise fully respected the collective agreement in force in the restructuring process, that there was coordination with trade union organizations and that a plan for voluntary withdrawal was established.
6. 280. The Committee points out that since its mandate is to examine allegations of infringements of trade union rights, it can express its opinions on restructuring programmes, which may or may not involve staff reductions, only to the extent that they may have given rise to acts of anti-trade union discrimination or interference. Furthermore, the Committee observes that although the allegations affected a large number of trade unionists whose interests have been prejudiced by the state modernization and restructuring process, these processes were of a global nature and affected not only trade unionists but a large number of workers both in the public and private sectors. Finally, the Committee notes that the complainants have provided no evidence allowing these events to be classified as anti-trade union acts, that no judicial proceedings have been initiated in this respect and that the Government denies that the restructurings had any anti-trade union objective.
7. 281. However, although the Government has emphasized that there was concertation between the COLPUERTOS enterprise and trade union organizations, the Committee cannot say in the case of the Agrarian, Industrial and Mining Credit Fund, and the National Railways, whether there was or was not consultation with the trade union organizations on the restructurings.
8. 282. The Committee notes that this case must be set within the context of macroeconomic rationalization with the subsequent restructuring of public enterprises. In most cases these restructurings have been carried out in the enterprises mentioned by the complainants with significant consequences in terms of employment and working conditions. In the absence of any consultation with the trade union organizations, the Committee emphasizes that it is important that the Government consult with trade union organizations to discuss the consequences of restructuring programmes on employment and working conditions of employees (see in this respect the 286th Report of the Committee, Case No. 1609 (Peru), para. 437).
9. 283. As regards the allegations made in Case No. 1702, in which the complainants allege that a reorganization of the department of Córdoba resulted in the dismissal, without compensation, of seven trade union officials and 200 members of the Union of State Workers, the Committee notes the observations of the Government that the Departmental Assembly of Córdoba promulgated different ordinances for the restructuring of the local administration, resulting in the suppression of several posts and the dismissal of more than 200 persons, not as part of an anti-trade union policy but exclusively as a result of the restructuring plans. In the same way, the Committee notes that as a result of these events the leaders of the trade union organization took the matter to the courts. The Committee notes that although some of the legal rulings in the first instance were in favour of the workers, these rulings were revoked by the superior court since the plaintiffs failed to establish their status as "official workers"; it also notes that the other workers dismissed were not compensated and have taken judicial action in the labour courts.
10. 284. In these circumstances, since the dismissed workers include seven trade union officials and 200 members and given the lack of further information on the total number of dismissed workers, the Committee cannot determine whether there was an overall restructuring process which affected all employees or only trade unionists. Noting that judicial proceedings are under way in connection with these dismissals, the Committee therefore asks the Government to keep it informed of the final outcome of these proceedings, which will allow it to reach a decision on the allegations in full knowledge of all the facts.