Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 338, Novembre 2005

Effect given to the recommendations of the Committee and the Governing Body

1. 116. The Committee last examined this case at its March 2005 meeting [see 336th Report, paras. 23-29]. On that occasion, the Committee made the following recommendations regarding the issues that remained outstanding.
   • Dismissal of trade union officials
2. 117. As regards the allegations relating to the dismissals of officials of SINTRABENEFICENCIAS for having formed a trade union organization in the Cundinamarca district, the Committee took note of the information provided by the Government according to which the decisions and agreements regarding the restructuring of the charitable institution of Cundinamarca pre-dated the notification given to that public body regarding the constitution of SINTRABENEFICENCIAS, and that the dismissed trade union officials had been paid compensation in accordance with the collective agreement in force at the time. The Committee took note of the fact that the majority of the judicial proceedings initiated by the dismissed officials had been concluded with rulings favourable to the public body. The Committee took note of the information provided by the trade union organization concerning the administrative decision of the Ministry of Labour that the time period for filing the appeal had lapsed. The Committee nevertheless recalled that in a previous examination of the case, it had requested a copy of the decision arising from the administrative inquiry initiated by the Territorial Directorate of Cundinamarca. Noting that the Government had sent no observations on that matter, the Committee once again requested the Government to provide a copy of the ruling in question.
3. 118. In a communication dated 4 May 2005, the Government states that upon learning of the complaint submitted by UNES against the charitable institution of Cundinamarca regarding the dismissal of workers with trade union immunity, it requested that an inquiry be initiated against the abovementioned body in accordance with the content of the complaint filed by UNES. Once the facts had been analysed by the Coordination Office for Inspection and Surveillance of the Territorial Directorate of Cundinamarca, it was concluded that given the period of time that had elapsed, the action was time-barred, as the national legislation in force lays down time limits within which workers can claim their rights that were allegedly infringed – this period being three years, pursuant to article 151 of the Code of Labour Procedure. The Government adds that the Ministry of Social Protection (formerly the Ministry of Labour and Social Security) is not competent to initiate inquiries into the dismissal of workers who have trade union immunity, and that this task falls within the competence of labour judges. The Government requested information from the charitable institution of Cundinamarca on the dismissal of workers with trade union immunity, asking it to indicate whether their respective immunity had been lifted in order to carry out the dismissals. The director of the charitable institution of Cundinamarca indicated that procedures for lifting their trade union immunity had not been initiated, but that statutory payments had been made and that compensation had been recognized and paid in accordance with the collective labour agreement. According to the Government, trade union immunity constitutes a guarantee of freedom of association, rather than protection of the labour rights of unionized workers, since this guarantee protects trade union organizations and therefore does not have financial significance, as the trade union organization claims; thus, when a worker with trade union immunity is dismissed, what is recognized is entitlement to compensation for unfair dismissal.
4. 119. In this regard, the Committee observes that sections 405 and 408 of the Substantive Labour Code provide for the following in relation to trade union immunity:
   • Section 405. Definition. “Trade union immunity” is the guarantee enjoyed by certain workers that they will not be dismissed or penalized in terms of their conditions of employment, or be transferred to other establishments within the same enterprise or to a different municipality, without just cause previously certified by a labour judge; and section 408. Content of the decision. The judge will deny an employer’s request for authorization to dismiss a worker protected by trade union immunity, or to penalize or transfer that worker, unless he establishes the existence of just cause. If, in the case referred to in the first paragraph of section 118 of the Labour Procedural Code, it is ascertained that a worker has been dismissed without complying with the provisions governing trade union immunity, he must be reinstated and the employer will be ordered to pay him, by way of compensation, the wages he failed to receive owing to his dismissal. Furthermore, in the cases referred to in the third paragraph of the same section, an order shall be issued for reinstatement of the worker in his previous post or with the same conditions of employment, and the employer shall be ordered to pay him the compensation due.
   • Under these circumstances, taking into account the fact that the Government has informed the Committee that the dismissal of officials of SINTRABENEFICENCIAS was carried out in breach of the provisions of the Labour Code, the Committee requests that the Government take the necessary measures to reinstate these officials, without any loss of wages.
   • Collective bargaining in the public sector
5. 120. The Committee requested that the Government provide information on progress made with regard to collective bargaining in the public sector in the Capital District.
6. 121. The Government indicates that Decree No. 137 of 2004 has been adopted, establishing the District Committee on Labour Dialogue and Coordination and the Subcommittees on Wages, the Public Administration and Trade Union Guarantees, with the participation of the District’s trade union organizations. Within the framework of the abovementioned subcommittees, a number of agreements have been concluded, for example, an agreement regarding the wage increase applicable to all public servants in the Capital District. Furthermore, the Subcommittee on the Public Administration has held numerous meetings, in which agreements were concluded on mechanisms for applying Act No. 909 of 2002 on the public administration. One of these agreements relates to the procedure for electing workers’ representatives on staff committees – such elections will take place on the same date in all the administrations of the Capital District; this contributes to strengthen democratic processes and the participation of workers in matters which directly concern them. The Subcommittee on Trade Union Guarantees has been responsible for the granting of trade union leave and other matters relating to the protection of the right to organize and freedom of association.
7. 122. The Committee takes note of this information.
   • Pending judicial decisions
8. 123. The Committee requested that the Government provide information on the outcome of the proceedings pending before the Council of State concerning the legality of Decree No. 1919 which suspended certain advantages in respect of wages and benefits required under the terms of collective agreements.
9. 124. The Government states that no ruling has been handed down yet.
10. 125. The Committee takes note of this information and requests that the Government keep it informed of any rulings handed down.
    • Failure to consult
11. 126. The Committee requested that the Government provide information on the allegations by SINTRAGOBERNACIONES concerning failure to consult the trade union during the preparation of a draft by-law aimed at modifying the Basic Statute of the Public Administration of Cundinamarca and reorganizing the structure of the departmental administration.
12. 127. The Government states that section 4 of by-law No. 14 of 2004, issued by the Cundinamarca Assembly, provides for the establishment of a monitoring committee made up of the following: two members representing the Assembly and appointed by its officers; two members representing officials of the public administration and official employees, of which at least one must belong to a trade union organization; and two representing the departmental government and designated by the Governor. In order to ensure the democratic participation of all departmental public servants, and given that by-law No. 14 did not provide mechanisms for the election of members of the committee, the Governor of the Department issued, on 23 September 2004, Circular No. 7 which established the procedures for doing so. Once the election had taken place, the public servants failed to designate their representative, and therefore the department complied with the obligation to promote democratic participation, in accordance with the procedures set forth in Circular No. 7 of 2004. Given that blank ballot papers were submitted in the said election, an alternative mechanism of electing the committee was sought, and in Circular No. 08 of 3 December 2004 a new procedure was established with a view to ensuring the participation of public officials in the Support and Monitoring Committee. In compliance with Circular No. 08, elections were held and Mr. Wilson López Sánchez, in his capacity as member of SINTRAGOBERNACIONES (Bogotá branch), was unanimously elected as representative of the official workers. At the time of his election, Mr. Wilson López Sánchez was a member of the trade union organization’s Complainants Committee. Also elected was Mr. Fernando Ernesto Fierro Barragán, who is an expert from the Departmental Institute of Community Action and an official listed in the public register of the public administration. The trade union executive committee subsequently removed Mr. Wilson López Sánchez immediately and arbitrarily from the Claims Committee, thus “penalizing” the fact that a unionized worker was a member of the Support and Monitoring Committee established under by-law No. 14 of 2004. The Government adds that on 14 December 2004, the departmental administration, with a view to providing information on progress made in the restructuring process, held a meeting with the heads of the trade union organizations of the departments, at which they were informed of the methodology adopted, in order to dispel any misgivings they may have had in that regard. The Government indicates that the departmental government of Cundinamarca is implementing procedures to liaise with trade union organizations as to ensure that they can participate in the restructuring process.
13. 128. The Committee takes note of this information.