Rapport intérimaire - Rapport No. 343, Novembre 2006

428. The Committee last examined this case at its meeting in May-June 2005 [see 337th Report, paras. 596-636].

1. 429. The Petroleum Industry Workers’ Trade Union (USO) presented new allegations in communications dated 26 October and 1 November 2005, and 10 May 2006. In a communication dated 1 March 2006, the World Federation of Trade Unions (WFTU) associated itself with this complaint. The National Trade Union of Workers of Petroleum, Petrochemical and Related Contractors, Services Subcontractors and Activities (SINDISPETROL) presented its allegations in a communication dated 14 February 2006.
2. 430. The Government sent its observations in communications dated 14 September 2005, 4 May 2006 and 4 October 2006.
3. 431. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 432. In its previous examination of the case, the Committee made the following recommendations [see 337th Report, para. 636]:
2. (a) The Committee requests the Government to take steps to make the necessary amendments to legislation (in particular section 430(h) of the Substantive Labour Code) so as to allow strikes in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service with the participation of the trade unions, the employers and the public authorities concerned. The Committee requests the Government to keep it informed of any measure adopted in this regard.
3. (b) Recalling 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, the Committee requests the Government to take steps to amend section 451 of the Substantive Labour Code in line with this principle.
4. (c) As regards the dismissal of 248 workers following the declaration that the strike at ECOPETROL S.A. was illegal, the Committee requests the Government to ensure compliance with the terms of the agreement of 26 May 2004 to end the strike, in particular with regard to the commitment by ECOPETROL to cancel the administrative measures initiated against workers who had not been notified. 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.
5. (d) The Committee also requests the Government to inform it whether there are other judicial proceedings under way concerning the other 11 trade union officials dismissed (according to the Government there were only seven).
6. (e) As regards the allegations relating to criminal proceedings against seven USO officials (mentioned by name in the complaint) for participating in the strike, the Committee requests the Government to inform it of the specific accusations brought against the officials in question, the status of proceedings against them and whether they are detained. Moreover, the Committee requests the Government to provide information on state of the proceedings concerning Hermes Suárez and Edwin Palma (who according to the complainants were detained on 3 and 11 June 2004 on charges of conspiracy to commit offences and terrorism).
7. B. New allegations
8. 433. In its communications of 26 October and 1 November 2005 and 10 May 2006, the Workers’ Trade Union (USO) recalls that on 26 May 2004, in order to bring to an end the collective dispute that had arisen between the trade union and ECOPETROL S.A., an agreement was signed to set up a voluntary arbitration tribunal for the purposes of settling the question of the dismissals. This tribunal handed down its final ruling in January 2005 and ordered the reinstatement of 106 workers, compensation without reinstatement for 22 workers, voluntary retirement for 87 workers and dismissal of 33 workers.
9. 434. On 4 February 2005, the enterprise lodged an action for annulment of the ruling, despite the fact that it had been expressly agreed by the parties that this ruling would not be open to appeal and that the disciplinary labour measures against those involved in the strike would not be continued. The tribunal found no grounds for the annulment action and rejected it. Nevertheless, the enterprise stated in a communication that its interpretation of the ruling led it to understand that the ruling “simply entails payment of compensation and reinstatement, with the sole purpose of observing the appropriate procedure for establishing whether the circumstances were such as to enable the enterprise to terminate the employment contracts […] in other words, involvement in the collective work stoppage declared illegal, after which the employer may stand by his/her decision to terminate the employment relationship.” In his statements, the Chairperson of ECOPETROL S.A. sends out a clear message as to his intention to reinstate workers in order to recommence disciplinary actions and proceed to carry out dismissals.
10. 435. The trade union adds that despite the existence of a statutory Single Disciplinary Code (Act No. 734 of 2002) applicable to all public servants (workers at the Empresa Colombiana de Petróleos hold this status), the chairperson of the enterprise ordered the application of an inappropriate disciplinary procedure that has been repealed by law, with the aim of swiftly dismissing workers and in so doing, disregarding due process. In this case, the dismissed workers, whom the tribunal recognized as having been denied due process, are once again the subject of disciplinary action on the same grounds (participation in the strike), despite the agreement of 26 May, the aim of which is to dismiss them again, an act which the complainant considers unacceptable. Dismissal in this instance carries with it an additional sanction, whereby the individual is forbidden from occupying another post in the public service for ten years, effectively destroying his/her employment prospects. Workers may make a second and final appeal for their cases to be reviewed, although this is made to the chairperson of the company himself, by whom they have already been prejudged.
11. 436. The USO adds that on 15 September 2005, it presented a request in writing, under the “right of petition”, to the Ministry of Social Protection, the Ministry of Mines and Energy and the President of the Republic, requesting that effect be given to the recommendations of the Committee on Freedom of Association of the Governing Body.
12. 437. On 7 October 2005, the Minister for Social Protection informed the USO in writing that “the recommendation made by the Committee on Freedom of Association in its 337th Report of June 2005 on Case No. 2355, is part of a report that is expressly described as interim. In the light of this, and pursuant to Ruling No. T-979/04 of the Constitutional Court, ‘interim recommendations of the Committee on Freedom of Association of the International Labour Organization are not considered binding by the Colombian State until they have been approved by the Governing Body, as provided for under the ILO Constitution …’. By virtue of the above, the recommendation is not binding and there is thus no obligation to comply with it.”
13. 438. According to the complainant, the Government of Colombia is refusing to comply with the recommendations of the Committee on Freedom of Association, arguing that they have not been approved by the Governing Body, despite the fact that a member of the Government was present during the June 2005 session, at which these recommendations were reviewed and approved with no amendments.
14. 439. In its communication, the Government adds that the legality of actions undertaken by the administration (in reference to the declaration of illegality of the strike, resolution No. 01116 of 22 April 2004) is monitored by the administrative court, which is mandated to cancel any administrative measures that it considers to be incompatible with the law and the Political Constitution.
15. 440. As regards the plea of unconstitutionality, the Government, in its communication to the trade union, indicates that this is not appropriate in the present case, since it considers that resolution No. 01116 of 22 April 2004 complies with current legislation and hence does not run counter to the Political Constitution, derived from article 430, paragraph (h) of the Substantive Labour Code, declared applicable by Ruling No. C-450 of 4 October 1995, in which activities relating to the extraction, refining and transport of oil are recognized as essential public services.
16. 441. As a consequence of the above, the complainant alleges that ECOPETROL S.A., pursuant to the ruling handed down by the arbitration tribunal, reinstated 104 of the dismissed workers but instituted disciplinary proceedings against all of these individuals, with the intention of once again dismissing them for participation in the strike. To date, the enterprise has dismissed 11 of the workers and has imposed an additional sanction blacklisting them from working in the public sector for between ten and 15 years. These sanctions not only pose a grave threat to the employment conditions of the individual workers in question, but also deal a serious blow to the structure of the trade union, since these openly anti-union measures prevent the legitimate exercise of the fundamental right to strike.
17. 442. The trade union fears that a decision will soon be taken to dismiss the 104 reinstated workers, especially bearing in mind that the second stage of the decision-making process is once again the responsibility of the chairperson of the state-run enterprise.
18. 443. In addition, the complainant reports that on 1 December 2005, it presented a list of claims with a view to initiating negotiations on employment conditions. The enterprise was notified of the list of claims and proceeded to communicate with the trade union for the purpose of submitting counterclaims. However, on 9 December 2005, ECOPETROL S.A. sent a document to the trade union in which it refused to initiate discussions of the list of claims, interpreting the law in a broad sense and denying knowledge of the collective agreement concerning the presentation of lists of claims that had been established by the parties, thus implying that they were not aware of the substantive right to collective bargaining.
19. 444. In its communication dated 14 February 2006, SINDISPETROL, and also pursuant to the provisions of article 34 of Decree No. 1469 of 1978, the Colombian administrative labour authorities were requested to the Sectional Prosecutor’s Unit of Barrancabermeja immediately, this being the competent authority to undertake criminal investigations into persons who, as representatives or agents of enterprise employers, committed the reported violations of the freedom to work and the right to freedom of association, to impose sanction or fines on the offenders, as provided for in law, and to instruct the employers to reinstate the founders and members of the SINDISPETROL trade union to their posts and functions, following the dismissal, on 8 December 2005, of the founding members of the trade union of the enterprise ECOPETROL S.A. and various subcontracting enterprises, who were covered by trade union immunity, despite the fact that on 6 December 2005, the enterprise had been notified by the SINDISPETROL trade union of the fact that the dismissed workers were founding members and that also on 6 December 2005, the SINDISPETROL founding document had been registered and deposited with the special Territorial Directorate of Barrancabermeja of the Ministry for Social Protection.
20. 445. Indeed at the constituent and founding assembly of the SINDISPETROL first-level branch trade union, held in Barrancabermeja on 3 December 2005, the trade union was established, its by-laws were approved and the central executive body was elected. On 6 December 2005, the final SINDISPETROL founding document was deposited with the Territorial Labour Directorate of the special office of the Ministry of Social Protection, together with a request for the trade union to be added to the union register, and the list of the members of the executive body and founding members was communicated to the enterprise.
21. 446. On 8 December 2005, ECOPETROL S.A. and its contractors ordered the dismissal of the workers who had founded the SINDISPETROL trade union, after pressure had been exerted on workers to withdraw their membership.
22. 447. The trade union also alleges pressure and slander against union leaders and members by the USO, with the aim of persuading them to withdraw their membership of SINDISPETROL or not to join it.
23. 448. SINDISPETROL adds that on 3 December 2005, as a result of the pressure, threats and interference by the enterprise and by the USO, two members of the SINDISPETROL executive body relinquished their trade union duties, not in the presence of the other members of the SINDISPETROL trade union executive body, as required by law, but rather in the presence of the employer, ECOPETROL S.A. Once the SINDISPETROL founding document had been deposited with the labour administration authority, together with the documentation required by law, such as the trade union by-laws, the list of founding members and elected trade union leaders, and their respective identity documents, for inclusion in the trade union register, the administrative authority issued Order No. 0001, dated 23 December 2005. The enterprise lodged an annulment and appeal action, citing the fact that members of the executive body had relinquished their duties.
24. 449. The trade union also alleges that the enterprise refused to engage in collective bargaining, despite the fact that every trade union present at the enterprise had demanded a collective agreement and presented a list of claims in December 2005, and when ECOPETROL S.A. refused to negotiate lists of claims, each of the trade unions within ECOPETROL S.A. instituted an administrative labour dispute.
25. C. The Government’s reply
26. 450. In its communications of 14 September 2005, 4 May 2006 and 4 October 2006, the Government supplies the following observations.
27. 451. As regards paragraph (a) of the recommendations, the Government wishes to point out that Colombian legislation, in considering activities involving the extraction, refining and transport of oil and its derivatives as an essential public service, was taking the public interest into account, in that it sought to safeguard the rights of citizens, particularly users of essential public services, who could be adversely affected by any interruption to those services. The State must ensure continual availability of essential public services, since any interruption to these could seriously affect the rights of citizens, which are considered to be fundamental. Moreover, the Government believes that the adoption of the concept of an essential service by the supervisory organs runs counter to the spirit of the ILO Constitution with regard to the regulation of working conditions and the need for the special circumstances of countries to be taken into account, as stipulated in article 19, paragraph 3. In the case of Colombia, the Government considers that account must taken of the fact that ECOPETROL S.A. is the only oil-refining enterprise in the country and that any disruption to its operation, depriving the country of fuel, could lead to circumstances in which the safety, and even the health, of the population are put at risk. Furthermore, according to the Government, the supervisory organs have not set out precisely the scope of the term “safety”, employed in their definition of an essential service. The Government is of the opinion that there is no valid reason why the situation of persons deprived, because of a strike in the oil industry, of the transport and living conditions that societies generally enjoy thanks to oil, should not be included in the scope of this term.
28. 452. As regards paragraph (b), the Government concurs with the Committee in considering that impartiality and independence when ruling that a strike is illegal are essential to the exercise of freedom of association. Nevertheless, the Government observes that there are no provisions within Conventions Nos. 87 and 98 preventing the legality of a work stoppage being determined by a competent government agency. It believes that since the Government is answerable for the application of the Conventions, there cannot be a requirement for decisions on the legality or illegality of a strike to fall to another party. Moreover, it should be stressed that appeals against rulings by the Ministry may be brought before the administrative court which is competent to pass judgement on the legality of such rulings.
29. 453. As regards paragraph (c) of the recommendations, concerning compliance with the terms of the agreement of 26 May 2004, the Government reports that according to ECOPETROL S.A., the commitments covered in the agreement have been fully observed, including cancellation of the administrative labour measures initiated, which at the time of the abovementioned agreement had not been notified. Furthermore, the enterprise, with a view to settling this dispute, decided to suspend the conventional administrative measures that had been instituted, with the result that the individual employment contracts of those workers who had not been notified by the day of the agreement were not terminated The enterprise did not engage in disciplinary procedures, as it is an issue of public employees having to respect the requirements of the Constitution. The State exercises disciplinary authority over public employees. In this framework, employees of the State bound by a work contract are in a position of subordination with regards to the State. These workers are subject to a disciplinary regime unilaterally imposed by the State, which does not take into account the worker’s union affiliation but rather takes into account only the quality of the public employee, as is demonstrated in the present case.
30. 454. At the same time, the Government points out that according to information from ECOPETROL S.A., the second part of paragraph (c), concerning possible sanctions against workers once they have been reinstated, may be incompatible with constitutional and legal regulations such as articles 6 and 123 of the Political Constitution and Act No. 734 of 2002, disregard of which, on the part of public servants responsible for enforcing state discipline within ECOPETROL S.A., would constitute a dereliction of duties and responsibilities, with the attendant legal consequences. The Government stresses that ECOPETROL S.A. cannot be unfamiliar with current legal standards and edicts, since these served as the basis not only for the dismissal of workers, but also for measures to give effect to the orders handed down by the ad hoc arbitration tribunal. Indeed, according to national legislation and case law, the activity being performed by ECOPETROL S.A. is deemed to be an essential public service, pursuant to Constitutional Court Ruling No. C 450 of 1995, meaning that strikes by persons performing this activity are outlawed.
31. 455. According to the Government, on the basis of information from ECOPETROL S.A., the actions of the enterprise complied fully with internal procedure and the relevant criteria dictated by the high courts.
32. 456. According to the Government, its obligations pursuant to the agreement signed on 26 May 2006 are twofold:
33. - the establishment of a voluntary arbitration tribunal to rule on the claims of the former workers on the basis of law and regulations in force (substantive and procedural matters);
34. - the cessation of actions and cancellation of the justified termination of employment contracts that arose from the events of 22 April 2004, thereby cancelling any administrative labour measures that had, as at the date the agreement was signed, already been initiated but of which no notice had been given.
35. 457. The voluntary arbitration tribunal set up to examine the dispute was established on 12 August 2004. The arbitration ruling was handed down on 21 January 2005 and commitments complied with. The tribunal concluded that: (1) the public officials at ECOPETROL S.A. fall into the category of “public servants” and as such, are subject to the Single Disciplinary Code (CDU), which regulates the conduct of public servants; (2) article 86 of the current collective labour agreement between ECOPETROL S.A. and the USO provides that the enterprise must notify the worker personally, and in writing, of his/her right to be heard during proceedings, and that this can be understood as being equivalent in real terms to the notification of the initiation of an investigation, covered in article 101 of the CDU; (3) workers bound by a contract of indefinite duration who received notification (personally or through an intermediary) of the action being brought and who did not admit to their involvement in the work stoppage declared illegal or who requested that the CDU be applied, workers who were not notified of the action, and those who could not be notified, should be reinstated, after which the CDU should be applied.
36. 458. The Government underlines the fact that the arbitration tribunal ordered the reinstatement of a group of workers with the aim of applying the CDU and observing due process. Following the reinstatements, it is now clearly necessary to comply with the second part of the ruling (“apply the CDU and observe due process”), which in the Government’s view does not run counter to the non bis in idem principle, since such a claim would be tantamount to suggesting that the tribunal had ordered the same offence to be punished twice over.
37. 459. As regards the commitments concerning cessation of actions and the justified termination of employment contracts arising out of the events of 22 April 2004, as well as the cancellation of any administrative labour measures initiated as at the date the agreement was signed but of which no notice had been given, the Government states that these were duly complied with, as recorded in the ECP report of 17 September 2004, held at the Ministry under No. 17723 of 23 September 2004, and signed by the Chairperson of ECOPETROL S.A. ECOPETROL S.A. therefore complied both with the contents of the agreement and the arbitration ruling handed down by the compulsory arbitration tribunal.
38. 460. As regards the second part of the Committee’s recommendation, concerning the adoption of measures to re-examine the situation of the dismissed workers following their reinstatement and to ensure that they are not sanctioned for the mere fact of having participated in the strike, the Government states that since article 450 of the Substantive Labour Code entitles the employer to dismiss anyone who has participated in a work stoppage that has been declared illegal, the employer may indeed terminate the workers’ contracts without breaking the law. Such a decision can only be modified if the State Council nullifies the resolution of the Ministry of Social Protection declaring the work stoppage illegal, since according to section 62 of the Administrative Disputes Code, administrative measures are presumed to be lawful.
39. 461. A regards paragraph (d), concerning the alleged dismissal of 11 other union leaders at the start of the dispute in November 2002, the Government states that on 29 November 2002, a decision was adopted to proceed to the unilateral and justified termination of the individual employment contracts of 11 workers at the Cartagena Refinery Administration Centre enterprise, in accordance with the established procedure in place for this purpose, of whom only seven held the status of members of the USO executive committee for Cartagena, not all, as erroneously stated in the Committee’s recommendation. The Government reports that the trade union leaders brought legal proceedings: (1) three are currently being processed; (2) the judicial authority has confirmed one dismissal, owing to the involvement by the worker (Mr. Nelson Enrique Quijano) in the illegal work stoppage; (3) in one case, trade union protection was ordered; (4) in another case, the worker took retirement; and (5) in a further case, since the worker’s involvement in the illegal work stoppage could not be corroborated, his reinstatement was ordered and has already come into effect.
40. 462. As regards paragraph (e) of the recommendations, concerning the allegations relating to criminal proceedings brought against seven USO officials for participating in the strike and the Committee’s request for the Government to inform it of the specific accusations brought against the officials in question, the status of proceedings against them and whether they are being detained, the Government states that the criminal justice system does not classify trade union protests or participation in a strike as offences. It also reports that Mr. Hermes Suárez does not appear as an employee of the enterprise and that the only report sent by the Office of the Attorney General of the Nation to the Barrancabermeja Refinery Administration Centre relates to the detention of the worker Mr. Jamer Suárez Sierra, who is in custody in that city. The Office of the Attorney General of the Nation also reported the detention of Mr. Edwin Palma. As for the status of the cases of Mr. Suárez and Mr. Palma, the Government indicates that it has made a request to the Office of the Attorney General of the Nation and that once a reply has been received, it will be communicated to the Committee.
41. 463. As regards the new allegations presented by the USO, concerning the right to petition the President of the Republic, the Minister for Mines and Energy and the Minister for Social Protection, the Government reiterates the arguments given earlier concerning the essential nature of the activities performed by ECOPETROL S.A.
42. 464. As regards the application of the CDU, the Government points out that pursuant to the Code itself and to articles 6 and 123 of the Constitution, the administrative authority shall, as established by law, be responsible for determining whether disciplinary misconduct attributable to public servants has taken place, in accordance with the regulations set out in the abovementioned CDU. The Government considers that the exercise of a disciplinary mandate does not fall within the scope of Convention No. 87, nor should it be interpreted as an act of anti-union discrimination, provided that those subject to such measures can be guaranteed due process, as was indeed the case in this instance.
43. 465. As regards the right of petition and the reply from the Ministry of Social Protection, the Government states that once the Constitutional Court has exercised its mandate and ruled on the constitutionality of a law, it is impossible for officials to refuse to apply this regulation. Resolution No. 01116 of 22 April 2004 was based on section 430(h) of the Substantive Labour Code, declared applicable by the Constitutional Court in Ruling No. C-450 of 4 October 1995, as explained earlier, meaning that the Ministry cannot circumvent the application of this article by revoking the abovementioned resolution, as suggested by the trade union. The Government rejects the request for application of the plea of unconstitutionality in relation to resolution No. 01116, which declared the strike illegal, since this resolution has both a legal and constitutional basis.
44. 466. Finally, the Government indicates that, due to the efforts and participation of the Ministry of Social Protection, through the Vice-Minister of Industrial Relations and the Inspection, Vigilance and Control Unit, on 10 July 2006, the USO and ECOPETROL concluded a collective agreement after 19 days of negotiations. The validity of the new agreement is for three years, from and including 19 June 2006 to 8 June 2009.

D. The Committee’s conclusions

1. 467. The Committee notes the new allegations presented by the USO and the SINDISPETROL. The Committee also notes the Government’s observations on the recommendations made by the Committee during its last examination of the case and, in part the new allegations presented by the trade unions.
2. 468. As regards paragraph (a) of the Committee’s recommendations, in which it requests the Government to take steps to make the necessary amendments to legislation (in particular section 430(h) of the Substantive Labour Code) so as to allow strikes in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service with the participation of the trade unions, the employers and the public authorities concerned, the Committee notes the information from the Government to the effect that national legislation considers activities involving the extraction, refining and transport of oil and its derivatives as constituting an essential service of general interest. The Committee also notes the Government’s view that the failure to class petroleum supply as an essential service does not take into account “the special circumstances of countries”, as stipulated in article 19, paragraph 3 of the ILO Constitution, and that in the case of Colombia, ECOPETROL S.A. is the country’s only oil-refining enterprise, such that any disruption to its operation, depriving the country of fuel, could lead to circumstances in which the safety, and even the health, of the population are put at risk. The Committee notes that according to the Government, the notion of “safety”, employed in the definition of an essential service, extends to the situation of persons deprived, because of a strike in the oil industry, of the transport and living conditions that societies generally enjoy thanks to oil.
3. 469. In this regard, the Committee reiterates that in accordance with the principles it has set out on a number of occasions, strikes may only be banned in cases where there exists “a clear and imminent threat to life, personal safety or health of the whole or part of the population”, i.e. in services considered essential in the strict sense of the term. Moreover, the Committee has decided on many occasions that the petroleum sector does not display the characteristics necessary for it to be considered as 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, paras. 540 and 544]. The above does not prevent a minimum service being imposed, given that this is a strategic service, of vital importance to the economic development of the country. In this regard, the Committee reiterates 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 is of the opinion that some of the abovementioned scenarios could apply to the petroleum sector. Under these circumstances, the Committee once again requests the Government to take steps to make the necessary amendments to legislation (in particular section 430(h) of the Substantive Labour Code) so as to allow strikes in the petroleum sector with the possibility of providing for the establishment of a negotiated minimum service with the participation of the trade unions, the employers and the public authorities concerned. The Committee requests the Government to keep it informed of any measure adopted in this regard.
4. 470. As regards paragraph (b) of the recommendations, concerning the Committee’s request that the Government take steps to amend section 451 of the Substantive Labour Code in line with the principle 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, the Committee notes that according to the Government, there are no provisions within Conventions Nos. 87 and 98 preventing the legality of a work stoppage being determined by a competent government agency; it believes that since the Government is answerable for the application of the Conventions, there cannot be a requirement for decisions on the legality or illegality of a strike to fall to another party. Moreover, it stresses that appeals against rulings by the Ministry may be brought before the administrative court, which is competent to pass judgement on the legality of such rulings.
5. 471. In this regard, the Committee recalls, as it has done on previous occasions, that responsibility for declaring a strike or work stoppage illegal should lie not with the Government but with an independent body which has the confidence of the parties involved, particularly in those cases where the Government is party to the dispute [see Digest, op. cit. paras. 522 and 523], the judicial authority being best placed to act as an independent authority. In this regard, the Committee reiterates that section 451 of the Substantive Labour Code does not conform to the principles of freedom of association. Given these circumstances, the Committee once again requests the Government to take the necessary steps to modify the abovementioned provision so that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties involved. As regards the reference by the Government to the possibility of lodging an appeal against government rulings declaring a strike to be illegal, the Committee suggests that the Government explore the possibility of the administrative authority applying to an independent body such as the judicial authority whenever it considers a strike to be unlawful. The Committee requests the Government to keep it informed in this regard.
6. 472. As regards paragraph (c) of the recommendations, concerning the dismissal of 248 workers following the declaration that the strike at ECOPETROL S.A. was illegal, the Committee recalls that it had requested the Government: (1) to ensure compliance with the terms of the agreement of 26 May 2004 to end the strike, in particular with regard to the commitment by ECOPETROL S.A. to cancel the administrative measures initiated against workers who had not been notified, and (2) following the reinstatement of the workers in accordance with the orders of the voluntary arbitration tribunal and with a view to re-examining their situation, to take account of the fact that the sanction of dismissal as applied to the workers is based on legislation that raises problems of conformity the principles of freedom of association and to ensure that sanctions are not applied for the mere fact of participation in the strike.
7. 473. The Committee notes the new allegations by the USO to the effect that: (1) the enterprise considers that the order handed down by the voluntary arbitration tribunal entails reinstatement of the workers in order for new disciplinary proceedings to be instituted and that if they are found to have participated in the work stoppage deemed illegal, the enterprise could then dismiss them; (2) on 15 September 2005, the USO, exercising the right of petition, requested the Minister of Social Protection, the Minister of Mines and Energy and the President of the Republic, to give effect to the recommendations of the Committee on Freedom of Association; (3) on 7 October 2005, the Government refused the request because: (a) the Committee’s recommendation was “interim” and had not been approved by the Governing Body of the International Labour Organization; (b) resolution No. 01116 of 22 April 2004 declaring the strike illegal is open to review by the judicial authority and cannot be challenged by a plea of unconstitutionality, since it is based on a legal provision whose constitutionality has already been recognized by the judicial authority.
8. 474. The Committee notes that according to the complainant, the enterprise reinstated 104 workers as a result of the decision by the voluntary arbitration tribunal but instituted disciplinary proceedings against all of these individuals, with the intention of dismissing them for participation in the strike. Indeed, the Committee notes that 11 workers have already been dismissed and that the trade union fears the imminent dismissal of the other workers.
9. 475. The Committee notes that the Government, for its part, reports that the obligations stemming from the agreement signed on 26 May 2006 were fully observed. These obligations involved: (1) the cessation of the actions and the justified termination of employment contracts in relation to the events of 22 April 2004 and the administrative labour measures that had been initiated (signed by the president of ECOPETROL S.A. in the ECP report of 17 September 2004, held at the Ministry under No. 17723 of 23 September 2004); and (2) the establishment of a voluntary arbitration tribunal, which, in a ruling handed down on 21 January 2005, ordered the reinstatement of 104 workers so that the CDU could be applied.
10. 476. The Committee notes that according to the Government, the employer, by virtue of the application of the CDU and pursuant to section 450 of the Substantive Labour Code, is entitled to dismiss any person who has participated in an illegal work stoppage that has been declared illegal. According to the Government, such a decision could only be modified if the Council of State were to annul the resolution issued by the Ministry of Social Protection declaring the work stoppage illegal.
11. 477. Nevertheless, the Committee recalls, as in its previous examination of the case and in preceding paragraphs of the present examination that the dismissals were carried out on the basis of legislation that raises problems of conformity with the principles of freedom of association. This is the case for the following two reasons: (1) the strike that was declared illegal did not, as claimed by the Government, take place within an essential service; (2) the declaration that the strike was illegal was not issued by a body independent from the parties. The Committee therefore regrets to observe that the reinstated workers are being dismissed again on the same grounds, pursuant to the CDU and section 450 of the Substantive Labour Code, as has already occurred in the case of 11 workers, who were also blacklisted from working in the public sector for between ten and 15 years. The Committee believes that the above constitutes a new violation of the principles of freedom of association and recalls that practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [see Digest, op. cit., para. 709]. Moreover, the Committee has on a number of occasions expressed the opinion that “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” [see Digest, op. cit., para. 597]. Given these conditions, the Committee urges the Government to take steps to prevent the dismissal of the 104 workers reinstated at ECOPETROL S.A. in compliance with the ruling of the voluntary arbitration tribunal, as a consequence of the strike on 22 April 2004, and to annul the 11 dismissals that have already been ordered. The Committee requests the Government to keep it informed in this regard.
12. 478. As regards the Government’s refusal to admit the petition presented by the USO calling for compliance with the Committee’s recommendations, on the grounds that these were interim in nature and had not been approved by the ILO Governing Body, the Committee must firstly make clear that when a case is classified as interim, this is because the Committee requires certain information from the Government or the complainants relating to particular aspects of the case in order to be able to make substantive rulings on these questions. There may however be matters within the case that do not require further information, thus enabling the Committee to express an opinion on the substance of such questions. At that point, the recommendations can be acted upon by the Government. Secondly, the Committee draws the Government’s attention to the fact that both the interim and definitive conclusions of the 337th Report of the Committee on Freedom of Association were approved by the Governing Body at its 293rd session in June 2005.
13. 479. As regards paragraph (d) of the recommendations, in which the Committee requested the Government and the complainants to inform it as to whether there are other judicial proceedings under way concerning the other 11 trade union officials dismissed (according to the Government there were only seven) in 2002 at the start of the collective dispute, the Committee notes that according to the Government, the individual contracts of 11 workers at the enterprise, of whom only seven were union leaders, were terminated on 29 November 2002. The Committee notes the Government’s information to the effect that the union leaders brought legal proceedings and that three cases are currently being heard, one was reinstated, the action of trade union protection was no longer legally valid in another case, one of the other workers took retirement and finally, that one dismissal has been confirmed, owing to the involvement by the worker (Mr. Nelson Enrique Quijano) in the illegal work stoppage. The Committee observes that in the last case, the dismissal results from the illegality of the work stoppage. The Committee refers to the principles set out in preceding paragraphs with regard to strikes and illegal work stoppages and hence requests the Government to ensure his reinstatement without delay and, if reinstatement is not possible, to ensure that he is fully compensated. The Committee also requests the Government to keep it informed of the legal proceedings currently being heard concerning the other three dismissed trade union leaders.
14. 480. As regards paragraph (e) of the recommendations, concerning the allegations relating to the criminal proceedings instituted against seven USO trade union leaders (mentioned by name in the complaint) for participation in a strike, the Committee had requested the Government to inform it of the specific accusations brought against the officials in question, the status of proceedings against them and whether they are detained, as well as to provide information on the status of the proceedings concerning Hermes Suárez and Edwin Palma (who according to the complainants were detained on 3 and 11 June 2004 on charges of conspiracy to commit offences and terrorism). In this regard, the Committee notes the information from the Government that no criminal proceedings have been instituted against the seven trade union leaders for participation in a strike. As regards Mr. Suárez (whose first name is in fact Jamer and not Hermes) and Mr. Palma,, who have been charged with conspiracy to commit offences and terrorism, the Committee notes that according to the Government, these individuals are currently in custody in the City of Barrancabermeja and that the Office of the Attorney General of the Nation has been requested to report on this matter. The Committee requests the Government to supply information on the charges against Mr. Suárez and Mr. Palma and to inform it of the status of the proceedings against them.
15. 481. As regards the new allegations presented by the SINDISPETROL in relation to the dismissal of the founding members of the trade union five days after it had been established, two days after the trade union registration process had begun, and after ECOPETROL S.A. and its contractors had been notified of the establishment of this trade union, and in relation to pressure on other members of the executive body, leading them to relinquish their trade union duties, the Committee observes that the Government has not sent its observations and requests it to do so without delay.
16. 482. As regards the allegations presented by the USO and SINDISPETROL concerning the refusal by ECOPETROL S.A. to engage in collective bargaining, the Committee observes that the Government has not sent its observations and requests it to do so without delay.