Rapport définitif - Rapport No. 292, Mars 1994

1. 59. The Committee examined this case at its February 1993 meeting, at which it submitted an interim report to the Governing Body (see 286th Report of the Committee, paras. 385-399, approved by the Governing Body at its 255th Session (May 1993)). The Government sent new information in a communication of November 1993.
2. 60. Colombia has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 61. In its communication of 20 February 1992, the Single Confederation of Workers of Colombia (CUT) alleged that workers had been dismissed for exercising their right to trade union membership, as had occurred at the MULTIPLAST (40 dismissals), INDUNAL (45 dismissals) and WACKENHUT (70 dismissals) enterprises; pressure had been put on workers to leave their trade union as occurred in the GOOD YEAR company; and workers had been obliged to join trade unions which have links with their employer, as in the case of the San Carlos sugar mill in Tulua (Valle).
2. 62. As regards the right to strike, the complainant had alleged that, contrary to the provisions of the new National Constitution, the Government assumes the right to decide which public services are essential, among which it includes the banking and financial sectors, health, social security, telecommunications, energy (including electricity), ports, transport, water supply and sewage, education, state services in general and even a number of hotels. On this basis, the Government has declared strikes in these sectors to be illegal, with the resulting dismissals. The complainant stated further that where no agreement is reached in disputes occurring in the state sector and in many cases in the private sector, the Government ends up by convening a court of mandatory arbitration. Likewise, in the public sector, the right to collective bargaining is accorded to "official workers" (who have a contract of employment) but not to "public employees" (whose situation is governed by statute), to whom the right to strike is also denied. Furthermore, Act No. 60 of 1990 establishes that no state body shall be able to make pay adjustments that exceed the level set by the Government. Thus, section 18 of Decree No. 2914 of 1991 establishes that "the legal representatives and governing boards or councils of state industrial and commercial enterprises and of mixed-economy companies that are subject to the regulations governing state industrial and commercial enterprises shall be required, prior to concluding collective agreements envisaging wage increases higher than those decreed by the National Government for public service employees, to seek authorization from the Higher Council on Fiscal Policy (CONFIS) or the authority taking its place ...". The complainant added that when, exceptionally, a collective agreement was achieved, the Government modifies it, as occurred in the case of the state enterprise "Puertos de Colombia-Colpuertos" where the Government, by virtue of Decree No. 35 of 1992, modified the clauses on pensions and retirement.
3. 63. Not having received the Government's observations on these allegations, at its May 1993 meeting the Committee regretted that the Government had not provided a detailed reply to these allegations (anti-union dismissals and interference; restrictive regulations and practices in relation to strikes, collective bargaining and mandatory arbitration; submission of collective bargaining in the public sector to the Government's economic policy; and amendment by decree of a collective agreement in the enterprise Puertos de Colombia), and requested the Government to reply to these allegations without delay (see 286th Report, para. 399).

B. The Government's reply

1. 64. In its communication of November 1993, the Government states that at no time was Act No. 50 of 1990 intended to generalize the practice of short-term contracts, and that the spirit and purpose of the Act centred on introducing greater flexibility in substantive labour standards which hampered job creation at a given time. Neither did it call into question the guarantees for workers to organize in trade unions, given that this prerogative is enshrined in the National Constitution. Every worker has the right to decide, at his discretion, whether to belong to a trade union organization.
2. 65. As regards the right to strike, it is enshrined in the National Constitution. None the less, the right to strike is subject to regulation by Congress, which has the power to determine and specify which activities constitute essential public services. The cases in which the Ministry declared a strike illegal conformed to the legislation in force at the time of the event, and there can be no discrimination in determining public services until Congress approves relevant legislation.
3. 66. Concerning the right to bargain collectively, the legislation (Act No. 50 of 1990) is very precise and provides that the Compulsory Arbitration Tribunal has legal competence only for the public sector, and in cases when no agreement ending the interests dispute between the parties is reached. It should be pointed out that public employees do not have the right to bargain collectively or to exercise the right to strike, since there is no provision for this in Colombian legislation. Except for the right to strike, these rights are enjoyed in the public sector only by persons with the status of official workers. While it is true that section 2 of Act No. 60 of 1990 empowers the Government to fix wage scales, commissions, per diems and expenses, this only applies to public employees. In state institutions or bodies where the persons termed official workers are organized in trade unions, wage increases, per diems, expenses and other emoluments are governed by the collective labour agreements which are signed, or have been signed between the parties in conformity with the legal formalities.
4. 67. As regards the policy of wage increases for state workers, the National Labour Council (consisting of employers, workers and Government) fixes wage increase percentages annually, but only for the statutory minimum wage, and not for other categories of remuneration. Lastly, the Government states that the terms of collective agreements can never be amended by decree, and that there has been no instance to date of the Government disregarding the terms of collective contracts.
5. 68. As regards the allegations concerning specific cases presented by the complainants, the Government states the following:
   • - MULTIPLAST enterprise: there was no collective dismissal in this enterprise as a result of the exercise of the workers' right to organize in trade unions. The trade union had denounced an alleged collective dismissal, and when the administrative investigation by the Ministry of Labour was under way and a decision was about to be issued, the trade union withdrew its complaint;
   • - WACKENHUT DE COLOMBIA S.A. enterprise: this enterprise signed a fixed-term contract for services with the Ministry of Public Works and Transport - the National Road Fund. The contract expired and the Ministry of Public Works and Transport decided not to renew it. Once the original reason for the contracts of employment no longer existed, the enterprise requested the Ministry of Labour to authorize the dismissal of workers in accordance with the law. At no time were workers dismissed as a result of the exercise of the right to organize in trade unions. By Resolution No. 2001 of 25 August 1992, the Ministry of Labour resolved to authorize the dismissal of 444 workers and ordered the necessary guarantees for payment of retirement pensions, severance pay, social benefits and other rights. The Resolution issued by the Ministry of Labour remained final as the legal remedies have not been exercised against it;
   • - INDUNAL enterprise: In 1992, 13 workers were unilaterally dismissed from this enterprise without just cause and without the enterprise applying to the Ministry of Labour. The enterprise also dismissed 17 workers in 1993 without just cause and without having gone through the necessary formalities with the Ministry. The dismissed workers have been paid compensation in accordance with the law, and to date no complaint has been lodged by the trade union or by the workers citing collective dismissals or anti-union policies;
   • - GOOD YEAR: regarding the allegation of pressure on workers to withdraw from the trade union, there has not been any investigation lending credence to the complaint, neither have any denunciations or judicial appeals been lodged on the matter;
   • - SAN CARLOS sugar mill: for some time there has been a power struggle in the enterprise for trade union representation by two industrial workers' unions, "SINTRACANAISUCOL" and "SINTRAINDUL", which have 250 and 100 members, respectively. There is also an enterprise-level trade union with a total membership of 1,000 workers. At the latest negotiations, there was a confrontation between the different trade union organizations. None the less, the collective agreement was signed for a term of about one year. No anti-union acts took place, neither were any complaints lodged nor actions brought in connection with the conflict.

C. The Committee's conclusions

1. 69. The Committee observes that the allegations which remained pending when it examined this case at its May 1993 meeting referred to anti-union dismissals and interference, restrictive regulations and practices in relation to strikes, collective bargaining and mandatory arbitration; subordination of collective bargaining in the public sector to the Government's economic policy; and amendment by decree of a collective agreement in the enterprise Puertos de Colombia.
2. 70. As regards the alleged dismissals of workers in the enterprises MULTIPLAST (40), INDUNAL (45) and WACKENHUT (70) for having exercised their right to organize in trade unions, the Committee notes the Government's observations denying that anti-union dismissals had taken place in the enterprise MULTIPLAST and pointing out that the enterprise's trade union withdrew the complaint it had presented, and that in the case of the WACKENHUT enterprise (a security enterprise) the fixed-term contract with the Ministry of Public Works and Transport had come to an end. Concerning the INDUNAL enterprise, the Committee notes the fact that the Government states that 30 workers have been dismissed without just cause, that they have been paid compensation in accordance with legal provisions and that no actions have been brought in court. In these circumstances, since the Government admits that the workers were dismissed without just cause, the Committee points out the principle according to which it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is accorded by legislation which enables employers in practice - on condition that they pay the compensation prescribed by law for cases of unjustified dismissal - to dismiss any worker, if the true reason is his trade union membership or activities. The Committee requests the Government to ensure that the competent authorities re-examine the case of the workers dismissed from the INDUNAL enterprise and, if it is found that they were dismissed for anti-union motives, to take measures to reinstate them in their posts.
3. 71. As regards the allegations of pressure on workers to leave their trade union in the GOOD YEAR enterprise and pressure on workers in the San Carlos sugar mill in Tulua to join a trade union which has links with their employer, the Committee notes that the Government states that no complaints or judicial appeals have been filed in this connection. The Committee requests the Government to carry out an investigation into the allegations, and if they are confirmed, to adopt the necessary sanctions.
4. 72. Concerning the allegations that the Government assumes the right to decide which public services are essential (including banking, the financial sector, social security, ports, transport, water supply and sewage, education, hotels, etc.) and on this basis has declared strikes in these sectors to be illegal, with the resulting dismissals, and that where no agreement is reached in disputes occurring in the state sector and in many cases in the private sector, the Government convenes a court of mandatory arbitration, the Committee notes the Government's observations to the effect that the right to strike is subject to regulation by Congress, which is empowered to determine and specify which activities are essential public services, and that the legislation provides that the legal competence of the Compulsory Arbitration Tribunal applies only to the public sector, and in cases where no agreement ending the interest dispute is reached. It also notes that, according to the Government, in cases where the Ministry has declared a strike illegal, it has been in pursuance of the legislation in force, and that no distinction can be made among the public services where strikes may or may not be held until the legislation to this effect is approved by Congress.
5. 73. The Committee observes that matters relating to essential services and the imposition of mandatory arbitration in Colombia have already been examined by the Committee on several occasions (see 270th, 275th and 284th Reports of the Committee, Cases Nos. 1434, 1477 and 1631 (Colombia), paras. 256, 199 and 398, respectively), and it must therefore reiterate the conclusions it reached on those occasions:
   • ... the Committee draws the Government's attention to the fact that in accordance with its jurisprudence, the right to strike can only be restricted (as by the imposition of obligatory arbitration to end a strike) or prohibited in essential services in the strict sense of the term; i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Furthermore, the Committee notes that the Committee of Experts on the Application of Conventions and Recommendations, when examining the application of Convention No. 87 by Colombia at its March 1989 meeting, stressed that the prohibition of strikes in the legislation not only applied to essential services in the strict sense of the term, but also to a very wide range of public services which are not necessarily essential ...
   • The Committee likewise observes that, according to the Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 80th Session, Report III (Part 4A), 1993, the Government has provided information to the Conference Committee on the Application of Standards indicating that the new Constitution of 1991 only lays down restrictions on the right to strike in essential services, to be defined by the legislature in a future law, and there will be tripartite consultation on the subject. In this connection, the Committee trusts that this tripartite consultation will be achieved in the near future and that the principles outlined by the Committee on this subject will be fully taken into account in drafting the new legislation.
6. 74. Regarding the allegations that the strikes were declared illegal, with resulting dismissals, the Committee observes that the complainants do not provide specific information - enterprises in which strikes were declared, dates, persons affected, etc. - and that the Government merely replies that the law was complied with. In these circumstances, the Committee is unable to reach conclusions in this respect. However, it brings the Government's attention to the following principles: when trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against contrary to Article 1 of Convention No. 98; the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association (Digest of decisions and principles of the Committee on Freedom of Association, 1985, paras. 443-444).
7. 75. Concerning the allegation that the right to collective bargaining is accorded only to "official workers" (who have a contract of employment) but not to "public employees" (whose situation is governed by statute), even when they are not acting on behalf of the public authorities, and that this category of workers is also denied the right to strike, the Committee observes that the Government declares that Colombian legislation does not provide for these rights for public employees. The Committee recalls that it examined similar allegations to those which are presented in this case at its November 1988 meeting, and therefore reiterates the following conclusions drawn at that time (see 259th Report of the Committee, Case No. 1465 (Colombia), para. 677):
   • (The Committee) wishes to emphasize that, within the framework of Conventions Nos. 87 and 98, the legal status of Colombian public servants (not acting on behalf of the public authorities) is not satisfactory, to the extent that the workers of state-owned commercial or industrial enterprises should have the right to negotiate collective agreements, enjoy suitable protection against acts of anti-union discrimination and enjoy the right to strike, provided that the interruption of services does not endanger the life, personal safety or health of the whole or part of the population ... The Committee requests the Government to take measures to ensure that legislation grants to public servants the basic guarantees and rights deriving from Conventions Nos. 87 and 98.
8. 76. As regards the allegation that no state body can make pay adjustments that exceed the levels set by the Government, the Committee notes the Government's observations to the effect that Act No. 60 empowers the Government to fix wage scales, but that this only applies to public employees and that in state institutions or bodies where there are trade unions of official workers, the wage scale is determined by the terms of collective agreements. In this connection, the Committee refers to its conclusions in the preceding paragraph and requests the Government to take measures to ensure that public employees who are not acting on behalf of the public authorities may determine their remuneration freely through collective bargaining, on the same footing as official workers.
9. 77. Lastly, the Committee notes that the Government denies the allegation that it amended clauses of the collective agreement on retirement and pensions in the state enterprise Puertos de Colombia-Colpuertos, following the enactment of Decree No. 35 of 1992 (this allegation is dealt with in detail in Case No. 1620).