Rapport intérimaire - Rapport No. 337, Juin 2005

596. The complaints are contained in communications dated 7 June 2004 from the Single Confederation of Workers of Colombia (CUT), the General Confederation of Democratic Workers (CGTD), and the Confederation of Workers of Colombia (CTC), dated 8 June 2004 from the Association of Managers and Technical Staff of the Colombian Petroleum Industry (ADECO), and dated 18 June and 27 July 2004 from the Workers’ Trade Union (USO). The International Confederation of Free Trade Unions (ICFTU) supported the complaint in a communication dated 28 June 2004.

1. 597. The Government sent its observations in communications dated 22 September 2004 and 15 and 17 February and 11 and 20 April 2005.
2. 598. 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. The complainants’ allegations

1. 599. In their communications of 7, 8 and 18 June and 27 July 2004, the Single Confederation of Workers of Colombia (CUT), the General Confederation of Democratic Workers (CGTD), the Confederation of Workers of Colombia (CTC) and the Workers’ Trade Union (USO) state that in November 2002, the Workers’ Trade Union (USO) presented a list of claims to the Government and the administration of ECOPETROL with the principal aim of defending and strengthening the Colombian national petroleum enterprise. At the same time, ECOPETROL lodged a set of counterclaims with the Ministry of Social Protection. The purpose of this was to terminate the collective agreement and negate the discussion on oil policy and the situation of the company. Once the direct settlement phase began and for a period of four months thereafter, the administration refused to discuss the union’s claims and insisted on imposing the counterclaims, as a result of which the process ended without achieving any result.
2. 600. The complainants add that ECOPETROL persuaded the Ministry of Social Protection arbitrarily to set up a compulsory arbitration tribunal in order to terminate the existing collective agreement. The USO, considering that this was arbitrary and contrary to the principles of freedom of association set out in Conventions Nos. 87 and 98 and interpreted in the jurisprudence of the Committee on Freedom of Association, declined to appoint an arbitrator as required under Colombian law. The Ministry then appointed the “workers’ arbitrator” on the union’s behalf.
3. 601. The complainants state that the arbitration tribunal was established and gave a ruling contrary to law and against the interests of the workers represented by the USO. The USO lodged an appeal against this ruling within the time allowed. The Labour Division of the Supreme Court handed down a ruling on 31 March 2004 in which it exceeded its competence and not only failed to set aside the original ruling but also referred the case back to the compulsory arbitration tribunal, in order to rule on a great number of issues on which it had handed down a decision without considering the records of the direct negotiations between the parties.
4. 602. The complainants state that, once the collective dispute was announced, the state enterprise ECOPETROL in November dismissed 11 USO officials in Cartagena (they do not indicate the names of the officials in question).
5. 603. The complainants indicate that the USO, faithful to its historical role not only of defending workers’ interests but also, and especially, of promoting national development, made every effort to avoid strike action by giving preference to dialogue and negotiation. As the opportunity for settling the dispute by direct talks was lost, ECOPETROL employees affiliated to USO went on strike on 22 April 2004. On 23 April 2004, the Ministry of Social Protection in resolution No. 1116 declared the strike illegal. In the resolution, the Ministry authorized ECOPETROL to dismiss workers who promoted or participated in the strike.
6. 604. The Ministry of Social Protection based its ruling that the strike was illegal on the assumption that a strike in the oil industry concerned an essential public service. The state company, ECOPETROL, dismissed 248 workers on the basis of the resolution, and threatened a large number of USO members who remained on strike with sanctions and criminal proceedings.
7. 605. According to the complainants, the resolution of the Ministry of Social Protection which declared the strike illegal is unlawful in that it infringes Conventions No. 87 and 98, and disregards the concept of “essential service”. The Ministry violates Convention No. 87 by its blatant administrative interference.
8. 606. The complainants add that during the collective dispute and strike, the company committed a number of acts of anti-union discrimination.
9. 607. The complainants allege that on the basis of the declaration of illegality of the strike, dismissals of the following workers took place:
10. - on 28 April 2004, the trade union officials Alirio Rueda Gómez, Fernando Coneo García, Juvencio Seija Mejía and Gregorio Alfonso Mejía Mancera;
11. - on 30 April 2004, Danilo Marín Sánchez, José Ramiro Luna Martínez, Manuel Jesús Coronado, Jairo Alberto Suárez Murcio, Luis Roberto Schmalbach, Luis Alberto Ramos Arenilla, Nelson Abril Hernández and Dagoberto Tovar Gómez;
12. - on 3 May 2004, Hernando Hernández Pardo, Rafael Enrique Torres Noguera, Abel Antonio Giraldo, José Antonio Meneses Becerra, Javier Antonio Calderón Chona, Carlos Eduardo Oviedo Barrios, César Muñoz Suárez, Gustavo Cardozo Ramírez, Dairo de Jesús Sánchez, and Fernando Tapias Ayal;
13. - on 4 May 2004, Fernando Tapias Ayala, Luis Carlos Zapata Araque, Víctor Julio Bayona Arévalo, Alfonso Acosta Viña, Cristóbal Salas Angulo, Javier Rodríguez Rincón, Bernardo Urrego Beltrán, Edwin Geliz Pérez, Salomón Ayala Vásquez, Arnulfo Núñez Herrera, Freddy Jair Díaz Rojas, Alvaro Gómez Lizarazo, Luis Carlos Días García, Roberto Plata Dueñas, José Miguel Vera Meza, Pedro Nel Quintero, Jaminthon Meza Alvarado, Julio César Mantilla Chinchila, Jaime Villadiego Hernández, Rusbel de la Rosa Morales, Luis Serrano Cifuentes, Alvaro Remolina Gutiérrez and Gabriel Alvis Ulloque – President of USO;
14. - on 5 May 2004, Eduardo Araujo Ortega, Gilberto Durán Higuera, Carlos García Chona, Emilio Manrique Alfonso, Raúl Atuesta Cano, Manuel Pianeta Matute, Alvaro Meléndez Arroyo, Héctor Carrillo Villamizar, Orlando Moreno Páez, Edwar Humberto Heredia Duarte, Julio Emilio Rico B., Leonardo Muñoz Velez, Juan Manuel Fonseca Beltrán and Pedro Nel González;
15. - on 6 May 2004, Luz Stella Acero de Forero, Elvia Vega de Escobar, Abelardo Gamarra Fonseca, Pedro Elías Herrera Ramírez, Olga Lucía Amaya Páez, Gladis Suárez Vertel, Yomber Sierra Ospina, José Vicente Morales, Carmen Helena Mármol Vásquez, Alfredo Cabarcas Martínez, Néstor William Parrado Ruiz, Joselito Cristancho Solano, Jaime Pachón Mejía, Ricardo Parrada Escano, Julio Flores Oses, Germán Alvarino Soracá, Jhon Freddy Henao Espitia, Jhon Freddy Certuche Vásquez, Víctor Manuel Pedraza Roa, Hermes Francisco Montiel, Nelson Fuentes Cabarcas, Gustavo Torres Castro, Pedro Julián Cote Parra, Jorge Alberto Zambrano Ramírez, Juan Carlos Aguilar Durán, Oscar Manuel Monsalve, Martín Emilio Rendón Castillo, Mario García Ochoa, Ludwing Fabián Villamizar, Omar Darío Gómez Galeano, Carlos Enrique Padilla Muñoz, Cynthia King Muleth and Guillermo Duque Pedrozo;
16. - on 7 May 2004, Fredys Jesús Rueda Uribe, José F. Blanco Landinez, Luz Miryam García Quivano, Rocío Sandoval Sánchez, Carlos Sarmiento Centeno, Alexander Giovann Campos Vega, Javier Hernández Acosta, Neil Armstrong Ramírez Delgado, Jorge Enrique Gómez Prada, Ricardo Forero Rondano, Carlos Alonso Ardila, Braulio Mosquera Uribe, Reinaldo Mantilla Florez, Wilson Alfredo Villaba Giraldo, Alfredo Salazar Díaz, Leonardo Mauricio González, Sergio Luis Peinado Barranco, Oscar Sánchez Pinto, Alfonso Plata Sarmiento, Ludwing Gómez Almeida, Pedro Pablo Moreno Cortés, Ariel Corzo Díaz, Juan Carlos González Canal, Ariel Rosero, Jhon Jairo Castillo, William Hernán Chanchi, Edmundo Julián Buchelly, Nelson Martín Luna, William Hernández Castaño, Jorge Coral Paladines, Néstor Cortés Oliveros, Iván Botero Osorio, Jorge Elicer Palencia Alvarino, Alonso Rangel Zambrano and Henry Valero Rincón;
17. - on 8 May 2004, Oscar Martínez González, Carlos Cevallos Castro, Jairo Eduardo Solarte, Nelson Franco Mendoza, Moisés Barón Cárdenas, José Oliveiros Arroyo;
18. - on 10 May 2004, Fernando Duarte Franco, Jesús Garrido Garrido, Alvaro Rueda Duque, Gabriel Sepúlveda Cáceres, Pablo Asensio Florez, Hugo Alexander Torres Rodríguez, Wilmer Guerrero Rendón, Edgar Correa González, Jairo Vidal Barón Cárdenas, Alvaro Hernández Cuaran, Jorge Christopher Ortiz Yela, Mario Alberto Mora, Ordubey Cuartas Jaramillo, José Alexander Martínez, Ramiro Medina, Fernando Jiménez Chaparro, Geninser Parada Torres, Germán E. Sánchez Martínez, Honorio Lozano Pinzón, Pedro Becerra Padilla, Luis Fernando Martínez Becerra, José Luis Sepúlveda Jaimes, Richard Alfonso Díaz Caballero, Edgar Páez Sarmiento, Oscar Javier Celis Suárez, Oscar Javier Sánchez Villamizar, Jair Ricardo Chávez, Jhon Enrique Pérez Cáceres, Carlos David Quijano, Aldemar Vásquez Velásquez, Fernando Londoño Díaz, Adriano Ochoa Gómez, Héctor Rojas Aguilar, Alfonso Rafael Dovale Florez, Guillermo Lastre Castillo, Alberto Pérez Hernández, Reinaldo Rey Coronel, Raúl Alberto Gómez Buitrago, Héctor Meza Pulido, Luis Carlos Castillo Santos, Ramón Manduano Urrutia, Manuel Francisco Palomino, Henry Hernández Tamara, Carmelo José Ramos Herazo, Angel María Rueda Garzón; Nelson Miranda Gallardo, Saul Ospino Hernández and Jimmy Alexander Patiño Reyes; and
19. - on 11 May 2004, Pablo Emilio Valencia Torres, Sergio Páez Mantilla, Franklin Murgas Estrada, José Manuel Acosta Arrieta, Freddys Elpidio Nieves Acevedo, Miguel Antonio Gómez Calderón, Juliano Hernández García, Roberto Guerrero Ramírez, Mauricio Gómez, Gerben Linington Castro Salazar, Alirio Acevedo Rueda, Alexander Domínguez Vargas, Lino Caro Castellanos, Wilmer Hernández Cedrón, Germán Polanco Castillo, Orlando Robles Alvarez, Lavinis Arzuza Alcántara, Ernesto Carlos Martelo, Clemente Sals Yanes, Idael Betancour Parra, Oscar Carrillo Gómez, Orlando Fernández Mañara, Alejandro Blanco Becerra, Julio César Atencia, Gustavo Martínez Afanador, Ludys Torres Arias, Angela Fiallo Marín, María Luisa Niño de Prada, Mayra Alejandra Joya Bueno, Donaldo Alvarino Pinto and Mauricio Durán Gamarra.
20. 608. The complainants also allege that criminal proceedings were brought against USO members and officials for exercising their right to strike. During the strike by ECOPETROL workers belonging to USO, seven trade union officials were prosecuted on charges of insulting behaviour, issuing threats and damaging property. They were: Fredys Fernández Suárez, Luis Roberto Schmalbach Cruz, Ignacio Vecino, Fernando Jiménez, Humberto Rodríguez, Sandro Efrey Suárez and Ricardo Harold Forero. The inquiry was assigned by the office of the Attorney-General to two district attorneys in Bogotá who are currently based in the personnel department at the ECOPETROL industrial complex in Barrancabermeja, in other words, in the same premises where the non-striking workers are based. The USO members Hermes Suárez and Edwin Palma were detained on 3 and 11 June 2004 and are charged with conspiracy to commit offences and terrorism.
21. 609. The complainants state that on 26 May 2004, an agreement was reached to end the strike (the complainants provide a copy of the agreement signed by representatives of the Government, ECOPETROL S.A. and USO). With regard to the 248 dismissed workers, the agreement stipulates the following:
22. 2.2.2. Ad hoc voluntary arbitration tribunal.
23. In the light of the complaint brought by representatives of the USO regarding the unilateral and justifiable decision by the company to terminate 248 individual contracts of employment in connection with a collective work stoppage declared to be illegal by the Ministry of Social Protection through resolution No. 001116 of 22 April 2004, a dispute contested by ECOPETROL S.A. on the grounds that it is without foundation in terms of fact and law, the parties agree to establish an ad hoc voluntary arbitration tribunal with a view to achieving a timely resolution of the dispute to rule in accordance with the substantive and procedural laws and regulations in force exclusively upon regarding the claims made by the former workers whose situation is not covered by paragraph 2.2.1 above and whose contracts of employment were terminated for justified reasons as a result of events that arose from the collective work stoppage which began on 22 April 2004, that is to say, it will not examine or define matters other than dismissals that took place in connection with these facts.
24. As regards the ending of the strike, the agreement in point 3 stipulates the following:
25. 3. Resumption of work, cessation of administrative measures and loan to the USO:
26. 3.1. Resumption of work
27. In accordance with the previous agreements, the USO shall end the collective work stoppage, and to that end shall adopt measures and issue instructions to ensure that all the workers concerned are available to resume work, thereby ensuring normal commercial, industrial and administrative activities at ECOPETROL S.A., from 6 a.m. on 28 May 2004 onwards, in accordance with the timetable which the company shall establish for this purpose.
28. 3.2. Cessation of administrative labour measures
29. In the spirit of finding a definitive resolution to the situations arising from the labour problems within ECOPETROL S.A., the parties agree that from that date onwards the company shall cease actions relating to the events of 22 April 2004 and justified terminations of employment contracts. Similarly, the company undertakes to cancel any administrative labour measures that had, as at the date on which this agreement is signed, already been initiated but of which no notice had been given.
30. In order to ensure the harmonious development and continuing soundness of relations between the company and the trade union, the parties shall be able to bring legal action only in connection with the declaration of illegality of the strike or of the arbitration ruling.
31. 610. In its communication of 8 June 2004, the Association of Managers and Technical Staff of the Colombian Petroleum Industry (ADECO) recalls that the Colombian national petroleum enterprise ECOPETROL was founded as a state industrial and commercial company under the terms of Act No. 165 of 1948. It was reorganized under the terms of Legislative Decree No. 1760 of 2003 as a public company ECOPETROL S.A., linked to the Ministry of Mines and Energy. Two trade unions, USO and ADECO, coexist within the company. ADECO refers to the process of presentation of the list of claims by USO already mentioned by the other complainants in their communications, and objects specifically to the convening of a compulsory arbitration tribunal by the Ministry of Social Protection through resolution No. 0382 of 25 March 2003. ADECO again objects to the appointment by the Government of the workers’ arbitrator without consulting the trade unions.
32. B. The Government’s reply
33. 611. In its communications of 22 September 2004, 15 and 17 February and 11 and 20 April 2005, the Government states that on 28 November 2002, the Workers’ Trade Union (USO) and ECOPETROL, in accordance with the legal rights enshrined in section 479 of the Substantive Labour Code as amended by section 44 of Legislative Decree No. 616, 1954, presented a list of claims to the labour inspector of the Ministry of Social Protection, together with a partial denunciation of the collective labour agreement that had been in force from 1 January 2001 to 31 December 2002. Once the statutory deadline had elapsed without an agreement being reached by the parties during the direct settlement phase aimed at resolving the collective dispute, the Ministry of Social Protection, in resolution No. 000382 of 25 March 2003, in accordance with its mandate and with labour law, ordered the establishment of the compulsory arbitration tribunal to settle the collective labour dispute. To that end, it took into account the fact that the state oil company was responsible for providing an essential public service, as the Constitutional Court had stated in its ruling C-450 of 1995.
34. 612. The USO filed an application to annul the order to establish the compulsory arbitration tribunal, and this application was rejected by the Ministry of Social Protection in its resolution No. 001273 of 29 May 2003 which upheld the original order. The compulsory arbitration tribunal gave its ruling on 9 December 2003 (clarified and supplemented on 17 December). Independently of the normal process within the tribunal as a legal body with binding decision-making power, informal talks also took place between the parties but despite these and despite the company’s efforts, it was not possible to reach an agreement on all the issues raised and thus not possible to achieve a direct settlement of the collective dispute.
35. 613. The USO, in its national assembly of delegates, decided to go ahead with preparations for the general strike at the enterprise in accordance with resolution No. 001 of 16 January 2004. The Ministry of Social Protection in resolution No. 000936 of 4 March 2004 advised the union to reconsider its decision within a period of eight working days from the date on which the administrative act came into effect. The USO lodged appeals against the resolution, but these were quashed by resolutions Nos. 001235 and 001512 of 26 March and 16 April 2004 respectively, which upheld the original decision.
36. 614. The USO and ADECO lodged appeals against the ruling of the compulsory arbitration tribunal. These were settled by the Labour Cassation Chamber of the Supreme Court in ruling No. 23556 of 31 March 2004, which upheld the arbitration ruling of 9 December 2003. The judicial authority ordered that the case be referred back to the arbitrators to allow them within ten days to give their decision regarding those points of the notice of partial termination of the collective agreement and the list of claims that had not been dealt with by the compulsory arbitration tribunal.
37. 615. The Government adds that despite the fact that national legislation prohibits strikes in enterprises that provide essential public services, as is the case with ECOPETROL S.A., the trade union on 22 April 2004 declared a collective suspension of work at the enterprise. For this reason, the Ministry of Social Protection, through resolution No. 1116 of the same date, declared the strike illegal.
38. 616. ECOPETROL S.A., citing relevant aspects of fact and law, unilaterally and for justified reasons, terminated the employment contracts of 248 employees between 30 April and 15 May 2004 for their active participation in the illegal strike. All this was done with due regard to the established procedure, which is designed to safeguard the rights of workers to a defence and due process of law, in accordance with the criteria established in this matter by the higher courts.
39. 617. The Government states that the direct settlement phase of the collective bargaining process began on 5 December 2002 and continued until 21 March 2003. The process got under way three times but the USO did not take part in discussions on all aspects of the collective dispute, including the list of claims and the employer’s denunciation of the collective agreement. While the company was always prepared to engage in dialogue and consultation, the union failed to do what was needed to ensure that the direct settlement process, convened when it presented the list of demands, could succeed.
40. 618. The Government indicates that, according to the information provided by ECOPETROL S.A., the negotiations were consistent with the applicable laws and regulations, and respected the rights and prerogatives of each of the parties; as there was no agreement to terminate the collective agreement through arbitration, the company asked the Ministry of Social Protection to convene a compulsory arbitration tribunal as a legal mechanism for settling the dispute. This should not be understood as something “won” by ECOPETROL S.A., but as the normal consequence of labour law when the direct settlement phase of a collective dispute within an enterprise providing an essential public service ends without an agreed settlement. The Government adds that under the terms of section 452 of the Substantive Labour Code, collective disputes arising in essential public service enterprises must be referred to a compulsory arbitration tribunal, as in the present case. The fact that the union may have refused to exercise its right to appoint a member of the tribunal and subsequently criticized the appointment made for it by the Ministry of Social Protection is not the issue. The Ministry of Social Protection is the body empowered to convene arbitration tribunals and to appoint tribunal members when one of the parties fails to do so and when the parties cannot agree on the choice of a third arbitrator.
41. 619. As regards the alleged dismissal of 11 workers at the company, of the Cartagena Refinery Administration Centre, the Government states that, according to information provided by ECOPETROL S.A., this was not the result of the collective dispute. The employment contracts of the workers in question were terminated unilaterally and for justifiable reasons in accordance with established procedure. Of the 11 workers, only seven were members of the USO executive committee. The decision followed the active participation of the workers in the collective work stoppage on 19 and 20 November 2002, which was declared illegal by the then Ministry of Labour and Social Security through resolution No. 01878 of 20 November 2002. Such measures obviously pre-dated the presentation of the list of claims. The decision by ECOPETROL S.A. to dismiss the workers was the subject of an appeal before the ordinary labour court, which rejected the workers’ claims for reinstatement. The workers then invoked the procedure for enforcing their constitutional rights (amparo) but this was not accepted on the grounds that other defence mechanisms already exist, such as the ordinary labour courts.
42. 620. As regards the alleged violation of the right to strike, the Government states that the Ministry of Social Protection acted in accordance with national law, as the resolution declaring the work stoppage by ECOPETROL workers illegal was based on section 430 of the Substantive Labour Code, as amended by section 1 of Extraordinary Decree No. 753 of 1956, which prohibits strikes in the public services, and which in clause (h) defines as a public service the activities of extraction, refining, transport and distribution of petroleum and its derivatives where these activities are intended, in the Government’s view, to ensure the country’s normal fuel supply. In this regard, the Constitutional Court in its ruling C-450 of 4 October 1995 stated that extraction, refining and transport of petroleum and its derivatives referred to in section 430(h) of the Substantive Labour Code are basic and fundamental activities which served to safeguard other essential activities such as transport, power generation, and so forth, and all these activities serve in turn to allow people to exercise their fundamental rights. Consequently, these activities are essential public services, and ECOPETROL. S.A. therefore provides an essential public service, a reason considered valid by the Ministry of Social Protection for declaring the collective work stoppage illegal.
43. 621. As regards the allegation regarding the dismissal of 248 workers, ECOPETROL S.A. explains that Colombian labour law includes provisions concerning illegal work stoppages. Specifically, section 450(2) of the Substantive Labour Code, which was replaced with section 65 of Act No. 50 of 1990, stipulates that: “If a work stoppage has been declared illegal, the employer shall be at liberty to dismiss for that reason any employee who has been involved or participated in such stoppage and, as regards the workers who [normally] enjoy protection by virtue of [trade union] immunity, such dismissal shall not require any judicial authorization.” ECOPETROL S.A. adds that as regards these dismissals, it acted in accordance with the aforementioned legal provisions which empower employers to terminate contracts of employment of workers who participate in the strike, as occurred in the present case, where the company notes that these decisions were taken only after the procedure established under the collective agreement to safeguard the rights of dismissed workers had been exhausted. The Government maintains that it is not possible to claim that, when a stoppage has been declared illegal, there will be no legal consequences, such as (in the present case) the termination of individual contracts of employment of workers who participated in it. This applies especially where a collective work stoppage has been declared illegal and workers nevertheless persist in maintaining it.
44. 622. With regard to the declaration that the strike was illegal, the Ministry of Social Protection acted in accordance with domestic law, given that under the terms of section 451 of the Substantive Labour Code, the Ministry is the body authorized to declare a work stoppage illegal.
45. 623. As regards the criminal proceedings against USO members and officials in connection with their exercise of the right to strike, the Government indicates that according to the company, it sought assistance from the Office of the Attorney-General in order to ensure the safety of workers who continued to work in the General Administration Centre of Barrancabermeja during the USO stoppages. The company adds that Colombian law not only provides all types of safeguards for all persons considered to be subordinates in an employment relationship but also ensures that all citizens benefit from a coherent set of principles which it is the duty of the State to safeguard. These include reliable access to justice and the right to lodge a complaint if one’s life, honour or property are threatened. Moreover, the Government indicates with regard to the investigations concerning Hermes Suàrez and Edwin Palma that its inquiries to the judicial authorities are hampered by the lack of precision concerning the circumstances (time and place) of the occurrence of the facts.
46. 624. Lastly, the Government states that on 26 May 2004, the parties signed an agreement to refer the situation of the 248 workers to a voluntary arbitration tribunal. The tribunal gave a ruling on 21 January 2005, resolving the situation of 161 of the 248 dismissed workers (the other workers accepted voluntary retirement). Specifically, the ruling stipulates the following: (1) full reinstatement of two workers (including payment of wages owed from the date of dismissal until the date of reinstatement); (2) legal termination of the employment contracts of 33 workers, without reinstatement or compensation; (3) compensation for 22 workers based on their final wages; and (4) reinstatement under the terms of the Single Disciplinary Code, with compensation, for 104 workers. The Government has supplied a copy of the ruling.
47. 625. In its communication of 15 February 2005, the Government reiterates that the compulsory arbitration tribunal was convened in accordance with section 452 of the Substantive Labour Code.
48. 626. As regards the alleged violations of sections 16 and 453 of the Substantive Labour Code and article 29 of the Political Constitution, for having appointed a tribunal member to represent the workers, the Government indicates that in accordance with resolution No. 01948 of 29 November 2002, the Ministry of Social Protection is empowered to convene arbitration tribunals and appoint arbitrators if one or other of the parties declines to do so. This has not been commented on by the ILO’s supervisory bodies.
49. 627. The refusal to appoint an arbitrator is indicated in resolutions Nos. 001803 of 7 July 2003, 001908 of 17 July 2003, 002159 of 8 August 2003 and 002449 of 1 September 2003, in which the Ministry of Social Protection, in accordance with the powers conferred on it by law, appointed the USO arbitrator, taking into account the fact that the trade union had refused to appoint a suitable arbitrator even after the period stipulated in section 2 of resolution No. 000382 of 25 March 2003 had elapsed.

C. The Committee’s conclusions

1. 628. The Committee notes that in the present case the issues are as follows: (1) the declaration of a strike to be illegal by the Ministry of Social Protection; the strike was staged against the ruling by a compulsory arbitration tribunal convened unilaterally by the Ministry following talks over a period of months; (according to the Government, on November 2002, the complainants presented a list of claims and ECOPETROL filed notice of partial withdrawal from the collective agreement; the direct settlement phase of the collective talks took place from 5 December 2002 to 21 March 2003; on 25 March 2003, the Ministry of Social Protection convened the compulsory arbitration tribunal, which gave its ruling on 9 December 2003; during the tribunal’s work, informal talks also took place between the parties; on 16 January 2004, USO decided to take strike action; on 22 April 2004, USO declared the strike and the Ministry of Social Protection declared it to be illegal on the same day; between 30 April and 15 May 2004, ECOPETROL S.A. terminated 248 contracts of employment); and (2) the dismissals carried out after the declaration that the strike was illegal concerned many trade union members and officials. The Committee notes in this regard that, according to both the complainants and the Government, an agreement was reached on 26 May 2004 to end the strike.
2. 629. As regards the allegations criticizing the convening of a compulsory arbitration tribunal and the declaration by the administrative labour authority that the strike was illegal on the grounds that the petroleum sector is an essential public service, the Committee notes the Government’s statements to the effect that: (1) once the established deadline had elapsed without any agreement being reached in the direct settlement phase, the Ministry of Social Protection ordered the convening of the compulsory arbitration tribunal with a view to resolving the dispute, given that the state oil company is responsible for providing an essential public service according to the Constitutional Court, and that under the terms of section 452 of the Substantive Labour Code collective disputes in public service companies must be referred to a compulsory arbitration tribunal; and (2) the resolution by the Ministry of Social Protection declaring the strike to be illegal was based on section 430 of the Substantive Labour Code according to which: “In accordance with the National Constitution, strikes are prohibited in the public services. For this purpose, public service is understood to mean any organized activity intended to ensure that public needs are met in a regular and continual manner in accordance with special laws and regulations, whether this be undertaken by the State (directly or indirectly) or by private entities. The following activities, among others, are thus deemed to constitute public services: [...] (h): Extraction, refining, transport and distribution of petroleum and its derivatives where these activities in the judgement of the Government are intended to ensure the country’s normal fuel supply”; the Ministry of Social Protection is competent to declare a collective work stoppage illegal under the terms of section 451 of the Substantive Labour Code.
3. 630. The Committee notes that the aspects of the work done by ECOPETROL S.A. that make it an essential public service led to the convening of the compulsory arbitration tribunal and the declaration of illegality of the strike in the public petroleum sector. In this regard, the Committee has on many occasions considered that the petroleum sector does not constitute an essential service in the strict sense of the term [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 545]. In this regard, the Committee emphasizes that the sector in question is not an essential service in the strict sense of the term (that is, one whose interruption would endanger the life, personal safety or health of the whole or part of the population) in which strikes may be prohibited. The Government may, however, consider the possibility of providing for a negotiated minimum service with the participation of the trade unions, the employers and the public authorities concerned. In this regard, the Committee has considered that the establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance [see Digest, op. cit., para. 556]. The Committee also recalls that in other cases relating to Colombia, it has already objected to the imposition of compulsory arbitration in non-essential services such as the petroleum sector [for example, in the natural gas sector – see the Committee’s 236th Report, Case No. 1140, para. 144]. In this regard, the Committee, in examining one case on the prohibition of strikes in the petroleum sector, considered that the sector “did not constitute an essential service in the strict sense of the term; however, it does constitute, in the circumstances of this case, a public service where a minimum service which is negotiated between the trade unions, the employers and the public authorities could be maintained in the event of a strike so as to ensure that the basic needs of the users of these services are satisfied” [see 327th Report, Republic of Korea (Case No. 1865), para. 488]. In these circumstances, the Committee requests the Government to take steps to make the necessary amendments to legislation (in particular section 430(h)) in line with these principles, and to keep it informed of any measures adopted in this respect.
4. 631. As regards the declaration of illegality of the strike by the Ministry of Social Protection, the Committee notes the Government’s statements to the effect that it acted within the terms of national law (section 451 of the Substantive Labour Code), according to which the Ministry is competent to declare a collective work stoppage illegal. In this regard, the Committee recalls that on many occasions it has stated that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved [see Digest, op. cit., para. 522]. Under these circumstances, the Committee requests the Government to take steps to amend section 451 of the Substantive Labour Code in line with this principle.
5. 632. As regards the allegation regarding the appointment by the administrative authority of the workers’ arbitrator on the compulsory arbitration tribunal, the Committee notes the Government’s information that according to resolution No. 01948 of 29 November 2002, the Ministry of Social Protection is competent to convene arbitration tribunals and appoint their members in cases where one or other of the parties declines to do so, and that this has not been commented on by any of the ILO’s supervisory bodies. In this regard, the Committee notes that paragraph 4 of section 453 of the Substantive Labour Code on special tribunals states that “Refusal by any of the parties to appoint an arbitrator shall give the Ministry of Labour the right to do so instead ...”. In the light of this information, the Committee will not proceed with an examination of these allegations.
6. 633. Lastly, the Committee notes the statements of the complainants and the Government to the effect that on 26 May 2004, an agreement was reached to end the strike, and that the agreement signed by the parties included the following: (a) an end to the collective work stoppage and a resumption of work; (b) an end to terminations of employment contracts and a commitment by the company to cancel administrative measures initiated against workers who had not been notified; and (c) referral to a voluntary arbitration tribunal of the situation of the 248 dismissed workers. The Committee notes that, on 21 January 2005, the arbitration tribunal established for that purpose ordered the full reinstatement of two of the workers concerned, termination of the employment contracts of 33 workers, without reinstatement or compensation, reinstatement in accordance with the terms of the Single Disciplinary Code of 104 workers, and payment of compensation to 22 workers (the remaining workers accepted voluntary retirement). Under these circumstances, the Committee requests the Government to ensure compliance with the terms of the agreement of 26 May 2004, in particular with regard to the commitment by ECOPETROL to cancel the administrative measures initiated against workers without notice being given. Moreover, taking into account the fact that the sanction of dismissal as applied to the workers is based on legislation which raises certain problems of conformity with the principles of freedom of association, the Committee requests the Government to take steps to ensure that, if the situation of the dismissed workers is re-examined (following the reinstatement of some by order of the voluntary arbitration tribunal), account is taken of the principles referred to in the context of this case and sanctions are not applied for the mere fact of participation in the strike.
7. 634. As regards the alleged dismissals of another 11 officials at the beginning of the dispute in November 2002, the Committee notes the Government’s statements to the effect that: (1) only seven of the 11 dismissals referred to by the complainants concerned trade union officials; (2) the dismissals were due to their active participation in a collective work stoppage on 19 and 20 November 2002, before the list of claims referred to in the complaint was presented; and (3) the dismissals were challenged by appeals to the judicial authority and demands for reinstatement were rejected. In this regard, the Committee requests the Government and the complainants to inform it whether there are other judicial proceedings under way concerning these trade union officials.
8. 635. Lastly, as regards the allegations concerning the criminal proceedings against seven USO officials (mentioned by name in the complaint) for participating in the strike, the Committee notes that according to the Government, the company states that: (1) it sought assistance from the office of the Attorney-General to ensure the safety of workers who continued to work at the Barrancabermeja Administrative Centre during the stoppage promoted by USO; and (2) not only the Colombian legal system provides all types of safeguards for anyone deemed to be subordinate in an employment relationship but also all citizens benefit from a set of principles which it is the duty of the State to safeguard, including reliable access to justice and the right to file a complaint in the event of an attack against one’s life, honour or property. In this regard, the Committee regrets that the Government has not provided any detailed information on the charges made against the trade union officials, or on the judicial proceedings. Under these conditions, the Committee requests the Government to inform it of the specific charges brought against the trade union officials mentioned by the USO, the status of any legal proceedings against them, and whether they are detained. Moreover, with regard to the detention and charges brought against Hermes Suárez and Edwin Palma (who according to the complainants were detained on 3 and 11 June 2004, at the end of the dispute, on charges of conspiracy to commit offences and terrorism), the Committee notes that the Government indicates that its inquiries to the judicial authorities are hampered by the lack of precision concerning the circumstances (time and place) of the occurrence of the facts. In this respect, taking into account the information provided by the complainant organization (dates of the detention, offences with which they are charged and that they were detained after the conflict in ECOPETROL) the Committee requests the Government to provide information on the proceedings concerning the workers in question.