Rapport intérimaire - Rapport No. 319, Novembre 1999

1. 137. The Committee examined Case No. 1962 most recently at its March 1999 meeting (see the Committee's 314th Report, paragraphs 78 to 96).
2. 138. The CUT supplied additional information in communications dated 10 November 1998, 17 March, 25 and 29 June, 15 July, 4 August, and 3 September 1999. The CGTD sent new information in communications dated 17 March, 20 April and 18 May 1999. The Public Works Trade Union SINTRAMINOBRAS sent new allegations in a communication dated 14 April 1999.
3. 139. The Government sent its observations in communications dated 12 August and 3 September 1999.
4. 140. 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 examination of the case

1. 141. In its previous examination of the case, when it considered allegations relating to dismissals connected with restructuring, in breach of the collective agreement, the Committee made the following recommendations:
   • (a) Concerning the restructuring which led to the dismissal of 155 public employees (including 14 trade union leaders) from the Municipality of Neiva in January 1993, the Committee recalls the importance it attaches to the principle that governments consult with trade union organizations to discuss the consequences of restructuring on the employment and working conditions of employees.
   • (b) In order for the Committee to be in a position to come to conclusions on the allegations concerning the non-respect of the collective agreement in the Municipality of Neiva, it requests the Government to transmit all administrative and judicial decisions concerning this collective agreement.
   • (c) The Committee urges the Government to submit its comments in response to the allegations regarding the dismissal of the leaders of the National Trade Union of Public Servants and Employees of the Institute of Hydrology, Meteorology and Land Development and to communicate the text of the rulings handed down in that regard.

B. New allegations

1. 142. In a communication dated 10 November 1998, the CUT alleges that what had appeared to be an isolated instance of the labour courts disregarding the right of workers to reinstatement in the case of unjust and illegal dismissals has in fact been applied to all the unionized workers who were dismissed and sought reinstatement. The CUT refers specifically to the principle enunciated by the Supreme Court of Justice according to which "if the employer, in breach of the law, proceeds to carry out a partial or total closure of an undertaking resulting in the termination of employment contracts, there is no legally enforceable claim to reinstatement, even if such a right exists in legislation or in a collective agreement or accord" (ruling of 2 December 1997, Reg.10.157, Alvaro Vargas Gutiérrez and others versus the Municipality of Neiva). The CUT alleges that as a result of this, there is no longer any guaranteed right to reinstatement under the terms of a collective agreement, since it suffices for an employer to illegally close down his undertakings for the applicable collective agreement to be deprived of any legal force. The CUT cites as an example two rulings given by the Labour Chamber of Cassation in which the principle in question was set out, namely: the ruling of 30 April 1998 in case No. 10.425; and the ruling of 17 July 1998 in case No. 10.779.
2. 143. In communications dated 17 March and 20 April 1999, the CUT and CGTD respectively indicated that in February and March 1999, the Disciplinary Chamber of the Sectional Council of the Huila judiciary gave two rulings ordering the Neiva High Court (Chamber for Civil Labour Affairs) to re-examine the actions initiated by the trade union leadership in the Municipalities of Neiva and Pitalito on the grounds that the Chamber erred in law. Consequently, according to the CGTD, the reinstatement of the dismissed workers might be possible. An appeal was lodged against the ruling relating to the Municipality of Pitalito by the magistrates concerned and the municipal authorities.
3. 144. The CGTD in a communication of 18 May 1999 also states that the High Council of the Colombian Judiciary gave a ruling on 22 April 1999 ordering the High Court of Neiva to re-examine the case within 48 hours, taking into account the principle of benefit of penal law embodied in article 53 of the Political Constitution, which could imply the reinstatement of the Pitalito workers. The CGTD alleges that the ruling in question suggests that there was indeed a flagrant violation of labour standards by the municipal authorities and some judges.
4. 145. The union SINTRAMINOBRAS in its communication of 14 April 1999 alleges that Mr. Hernando Oviedo Polo, Mr. Fernando Leyva Zuleta and Mr. Omar Muñoz Cabrera, who were members of the Public Works Trade Union SINTRAMINOBRAS Executive Board, were dismissed at the end of December 1994, although the Ministry of Transport had not obtained the authorization required for such action under sections 405 and 406 to 411 of the Labour Code. Proceedings were initiated to obtain the reinstatement of the trade unionists in question and the labour court judge ruled that they enjoyed legal protection by virtue of their trade union office. This was confirmed by the Chamber for Civil Labour Affairs which, however, also found that the dismissals had been in keeping with a constitutional mandate and with the wishes of the Law Ministry and did not require judicial authorization. It is also alleged that other trade union officials in Barranquilla, Neiva and Santafé de Bogotá, who were dismissed in similar circumstances, have been reinstated.
5. 146. The CUT alleges that Mr. Oscar de Jesús Martinez Quintero, Mr. Alvaro Rojas Tovar, Mr. Hernando Cortes Yate, Mr. Isauro Lasso Vargas and Mr. Ascencio Gutierrez Chala, all of whom were members of the Public Works Trade Union at the Institute of Hydrology, Meteorology and Land Development (HIMAT, now INAT), were unjustly and illegally dismissed in August 1993 and received compensation below the statutory amount. In particular, the principle according to which replacement of the employer does not in itself render a contract of employment void, was disregarded and no account was taken, when compensation was calculated, of time spent working in INCORA, the entity replaced by HIMAT, which resulted in a failure to make the appropriate payments. Likewise, they failed to pay for overtime.

C. The Government's reply

1. 147. The Government of Colombia reiterates that in the past it has been willing to consult the social actors in formulating state restructuring policies and procedures at all levels of the public administration. It cites the examples of the programmes that have been implemented to prepare workers not included in new staffing plans by enhancing their employment mobility through training in skills, occupations and technologies which should help them to find suitable employment. It adds that these initiatives have been and continue to be financially supported by the State and have helped workers to become independent. It also adds that the advisability of holding consultations on all labour policies was established in constitutional and legal terms (article 56 of the Constitution and Act 278/96). The Government also states that the President of the Republic issued Circular No. 02 in March 1999 welcoming the Committee's recommendation that there should be consultation on state restructuring with the workers concerned.
2. 148. As regards the allegation of failure to comply with a collective agreement by the municipal authorities of Neiva, the Government explains that the workers who were dismissed as a result of the restructuring of the Public Works Department in the Municipality of Neiva lodged a complaint of violation of a clause in the collective agreement which according to them gave them complete stability of employment. The Ministry of Labour, (Labour, Inspection and Monitoring Division, Regional Labour Directorate of Huila) as the authority of first instance fined the Municipality for violating clause No. 3 of the collective agreement; the decision was upheld by the Ministry of Labour, as the authority of second instance. In the third and final administrative appeal, the two previous rulings were upheld, giving the sanctions imposed by the Government on the Municipality of Neiva the status of a definitive judgement.
3. 149. As regards the alleged dismissals of officials of HIMAT (now INAT), the Government states that they occurred under the terms of an interim mandate of the national Constitution (article 20) which required the Government to "abolish, merge and restructure entities in the executive branch, public institutions and mixed-economy national companies"; to that end, in accordance with this mandate, the Government issued Decrees Nos. 2135/92 and 1598/93, ratified by Agreement No. 53 of 1993 of the HIMAT Executive Board, and proceeded with the abolition of posts which led to the complaint. The Government maintains that the Institute was restructured in accordance with legal and constitutional provisions in force at the time. It adds that the workers concerned (Mr. Hernando Bonilla Buendía, Mr. Jesús Antonio Mejía Díaz and Mr. José Antonio Alarcón), in a September judgement, obtained compensation for infringement of certain economic rights, but the judges found that their dismissals were lawful although without a just cause, and that they would therefore not be reinstated but would receive compensation including retirement benefits as a sanction for the employer. The Government is sending information on the status of the proceedings initiated by Mr. Hernando Bonilla and others, Mr. Ascencio Gutiérrez Chala and others, Mr. Cesar Augusto Ramírez and others, Mr. Fernando González Grande and others, and Mr. Idalid Tafur Calderón, against the INAT.

D. The Committee's conclusions

1. 150. The Committee notes that the allegations made by the complainants relate to dismissals of workers and trade union officials in the Municipalities of Neiva and Pitalito, at the Institute of Hydrology, Meteorology and Land Development (Neiva section) and in the Ministry of Public Works and Transport and National Highway Districts.
2. 151. As regards the abolition of the Public Works Office in the Municipality of Neiva which resulted in the dismissal of 155 workers, the Committee recalls that in its previous recommendations concerning these allegations it reminded the Government of the importance which it attaches to "the principle that Governments consult with trade union organizations to discuss the consequences of restructuring on the employment and working conditions of employees". In this regard, the Committee takes note of Presidential Circular No. 02 of March 1999, in particular the provision according to which procedures for restructuring state bodies should be broad and involve all persons affected and should above all allow participation of the trade unions. The Committee requests the Government to ensure that this is implemented so as to allow consultations with trade union organizations on the consequences of restructuring for employment and working conditions.
3. 152. As regards the alleged failure of the Neiva municipal authorities to comply with the stability of employment clause in the collective agreement by dismissing the 155 workers referred to in the preceding paragraph, the Committee notes that according to the Government, at every instance the Ministry of Labour (Labour, Inspection and Monitoring Division, Regional Labour Directorate of Huila) fined the Municipality for violating the clause in question. The Committee notes that, according to the CUT in its previous allegations (see 314th Report of the Freedom of Association Committee, para. 81), the Supreme Court of Justice in this specific case ruled that reinstatement of the workers concerned was not legally possible, given that the posts had been abolished, that the municipal authority was not exonerated from paying compensation for the dismissals but that, under the terms of the ruling, such compensation had not been granted because it had not been requested. The Committee considers that the collective agreement which guaranteed stability of employment of the workers was violated, which constitutes a violation of the principles of freedom of association. Under these circumstances, the Committee requests the Government to take the necessary measures to bring about the reinstatement in the public administration in question, without loss of pay of the 155 workers who were dismissed. If this is not practicable, given the considerable time that has elapsed since the dismissals, the Committee requests the Government to take steps to ensure that the workers receive full compensation without delay.
4. 153. As regards the alleged dismissals without prior judicial authorization of trade union officials of HIMAT (now INAT) (Alberto Medina Medina, José Antonio Alarcón, José Antonio Mejía Díaz, Alvaro Cabrera Achury, Hernando Bonilla Buendía), the Committee notes that according to the Government, the dismissals in question were carried out under the terms of provisional constitutional mandate (provisional article 20) ordering the Government to "abolish, merge and restructure entities in the executive branch, public institutions and mixed-economy national companies", and that the Institute was restructured on the basis of legal and constitutional provisions in force at the time. The Committee notes the ruling, a copy of which has been provided by the Government, in which the Third Labour Tribunal of Neiva (court of first instance) ruled that the dismissals were legal but without just cause and for this reason it would not reinstate the workers but would compensate them. The Committee recalls that in one case in which a government considered the dismissal of nine workers to be part of state restructuring programmes, the Committee emphasized "the advisability of giving priority to workers' representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paragraph 961). Under these circumstances, the Committee urges the Government to take measures to bring about the reinstatement of the dismissed trade union officials and, in the event that it is not practicable to do so, given the considerable time that has elapsed since the dismissals, to ensure that they receive full compensation without delay.
5. 154. With regard to the new allegations concerning inadequate compensation paid by the HIMAT (now INAT) to Mr. Oscar de Jesús Martínez Quintero, Mr. Alvaro Rojas Tovar, Mr. Hernando Cortes Yate, Mr. Isauro Lasso Vargas and Mr. Ascencio Gutierrez Chala, all of whom were members of the Trade Union of Public Servants and Employees of HIMAT and were dismissed in 1993 by the Institute of Hydrology, Meteorology and Land Development, the Committee notes that the information supplied by the complainants does not include anything that would lead to the conclusion that the matter is linked to the exercise of trade union rights. Under these circumstances, the Committee is unable to express an opinion on these allegations.
6. 155. As regards the ruling, which has been criticized by the complainant, rejecting the reinstatement of the SINTRAMINOBRAS officials (Hernando Oviedo Polo, Fernando Leyva Zuleta and Omar Muñoz Cabrera), who were dismissed at the end of December 1994 without the previous judicial authorization required under law, the Committee notes that the Government has sent no observations on the matter and therefore urges the Government to reply without delay to the allegation and to provide a copy of any rulings handed down in this regard.