Rapport intérimaire - Rapport No. 338, Novembre 2005

738. The complaint is contained in communications from the Workers’ Unitary Central (CUT) dated 3 August 2004 and 16 March 2005 and in a communication from the Trade Union of Workers and Employees in Public and Autonomous Services and Decentralized Institutions of Colombia (SINTRAEMSDES) of May 2005.

1. 739. The Government sent its observations in a communication dated 2 May 2005.
2. 740. 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. The complainants’ allegations

1. 741. In its communication of 3 August 2004 the Workers’ Unitary Central (CUT) alleges that, on 28 January 2001, the Trade Union of Public Employees of the Medellín Municipal Sports and Recreation Institute (ASINDER) was founded. Three days later, on 31 January 2001, in accordance with Act No. 617 of 2000 on economic rationalization, the Medellín Municipal Authority dismissed 54 workers belonging to the union, thus leaving it with only nine members, which is less than the minimum number required by legislation for a union to exist. According to the complainant, the dismissals were carried out without having lifted the trade union immunity which protected all the workers by virtue of their status as founder members of the union.
2. 742. The complainant adds that the restructuring process which led to the 54 workers being dismissed was not undertaken in the due manner, since the technical studies required by law were not carried out. Furthermore, according to the complainant, the dismissed workers were replaced by workers contracted to provide services, who are thus unable to join a trade union because no employment relationship exists. An action for protection of constitutional rights [tutela] was brought against the decision before the Twentieth Municipal Criminal Court of Medellín, which ordered the reinstatement of the dismissed workers. This decision was confirmed at appeal. A second tutela action was then brought by the Medellín Municipal Sports and Recreation Institute (INDER) before the Superior Council, which overturned the earlier rulings. However, annulment proceedings were brought in respect of this decision by the trade union and the appeals authority before the Sectional Council of the Judicature, which annulled the decision of the Superior Council, and in the end the tutela ruling was archived. The dismissed workers then brought a special action of trade union immunity before the ordinary courts, which was rejected because the court considered that the workers were aware that their posts would eventually be abolished as a result of Act No. 617 of 2000, and that founding and belonging to ASINDER served the sole purpose of protecting its members with founder member immunity, which constitutes an abuse of law. The complainant states that it has appealed against this decision, and that the appeal is pending.
3. 743. In its communication of 16 March 2005, the CUT alleges refusal to register the committee of the Trade Union of Workers at the Cartagena Communications Company (SINTRATELECARTAGENA) based on a legal opinion given by the Ministry of Social Protection, in accordance with which the committees of trade unions operating at public institutions which have gone into liquidation cannot be registered.
4. 744. In its communication of May 2005, the Trade Union of Workers and Employees in Public and Autonomous Services and Decentralized Institutions of Colombia (SINTRAEMSDES) alleges that on 4 August 1997 Mr. Rafael León Padilla, president of the committee of the Cartagena branch of the union, was dismissed by the district public services enterprises of Cartagena, which had gone into liquidation. Mr. Padilla had been re-elected president on 20 July 1997.
5. 745. The complainant alleges that Mr. Padilla brought legal proceedings for violation of trade union immunity and that the Eighth Labour Court of the Cartagena Circuit gave a ruling recognizing trade union immunity and allowing compensation for dismissal but did not order his reinstatement, since the enterprise had gone into liquidation. The union states, however, that the enterprise had reserved some posts for trusted employees. The first ruling was overturned by the Superior Court of Justice of Cartagena, rendering Mr. Padilla’s situation even worse by denying him trade union immunity, the corresponding compensation, and reinstatement. This decision was then contested by the Supreme Court on the grounds of errors of form, and the Superior Court was ordered to give another ruling. In the end, the Superior Court for the district upheld the original ruling of the Eighth Labour Court of the Circuit, meaning that Mr. Padilla’s reinstatement was not recognized. Subsequent proceedings brought by Mr. Padilla were rejected.
6. B. The Government’s reply
7. 746. In its communication of 2 May 2005, the Government states, with regard to the dismissal of 54 workers belonging to ASINDER as part of the restructuring process carried out in the Medellín Municipal Sports and Recreation Institute (INDER), that Act No. 617 to rationalize costs involved the abolition of certain posts, regardless of whether the staff employed in those posts were members of a union. The Government underlines that the common interest takes precedence in restructuring processes, taking account of the needs of public institutions whilst attempting to guarantee stability for workers, and, where that is not possible, to pay compensation. The Government adds that, before the restructuring, and in accordance with section 41 of Act No. 443 of 1998, a technical study was carried out which demonstrated the necessity of the restructuring process. The Government attaches copies of resolution No. 017, of 23 January 2001, which ordered the abolition of certain posts at INDER, and the minutes of the interdisciplinary committee’s meetings to analyse staffing and changes to the staff of INDER held on 19, 20, 21 and 26 January 2001, at which the committee established the need to reduce the number of staff because the planned budget for 2001 was three times smaller than for 2000, and that, in accordance with Act No. 617 of 2000, regional institutions should be financed exclusively from their current income. Based on the technical study, the final plan for restructuring took account not only of workers’ pension liabilities but also the amount of compensation to be paid to those who would be affected by the abolition of jobs and a plan to reinsert them into the labour market. The Government also attaches a copy of the minutes of the committee meeting to analyse the curricula vitae of staff employed in jobs which might be abolished, at which the criteria for deciding which employees would be dismissed were determined. The jobs abolished were those most recently created; where two or more jobs were created at the same time, qualifications were taken into account.
8. 747. Furthermore, the Government states that it is legal for public bodies to contract workers to provide services and that this practice is usually employed to fill vacancies whilst the process laid down in law for filling posts begins. However, according to the Government, this practice has not been used by INDER; rather, it has named staff to fill posts on a temporary basis but not those posts affected by the restructuring.
9. 748. With regard to trade union immunity, the Government underlines that, under both constitutional and ordinary jurisprudence, trade union immunity must not be abused, and that in this case the trade union was founded in an effort to guarantee job security and avoid posts being abolished.

C. The Committee’s conclusions

1. 749. The Committee observes that this case concerns: (1) the dismissal of 54 workers belonging to the Trade Union of Public Employees of the Medellín Municipal Sports and Recreation Institute (ASINDER) three days after the union was founded; (2) the refusal to register the new committee of the Trade Union of Workers at the Cartagena Communications Company (SINTRATELECARTAGENA) as a result of the company going into liquidation alleged by the Workers’ Unitary Central (CUT); and (3) the allegations presented by the Trade Union of Workers and Employees in Public and Autonomous Services and Decentralized Institutions of Colombia (SINTRAEMSDES) concerning the dismissal of the president of the union three days after having entered the new committee on the trade union register.
2. 750. With regard to the dismissal of 54 workers belonging to ASINDER without having lifted the trade union immunity that protected founder members of the union, the Committee notes that, according to the allegations, the union was founded on 28 January 2001, that the collective dismissal took place on 31 January 2001, i.e. three days after the union was founded, without any request for lifting the trade union immunity and without the technical studies required by law having been carried out, and that, following the collective dismissal, INDER contracted new workers under services contracts, a practice which means that such workers do not enjoy the right to join a trade union.
3. 751. The Committee notes that, according to the Government, the dismissals were necessary for the restructuring of the Institute brought about by the operational budget having been reduced by two-thirds, and were not based on whether the workers dismissed were union members or not; that this restructuring was provided for within the framework of Act No. 617 of 2000 on economic rationalization; and that technical studies examining compensation and reinsertion programmes for dismissed workers were undertaken before the collective dismissal took place. The Committee notes that the Government denies that staff were subsequently contracted under service provision contracts and states that in fact staff were named to fill posts on a temporary basis but not those posts affected by the restructuring.
4. 752. The Committee further notes that the tutela proceedings brought in respect of the dismissals resulted in a reinstatement order for the dismissed workers, a decision which was contested by INDER by means of a new tutela action, and that both rulings were overturned by the Superior Council of the Judicature. In the end, the reinstatement action brought by the dismissed workers before the ordinary courts was rejected, and an appeal is ongoing. In these circumstances, the Committee requests the Government to keep it informed of the final appeal ruling.
5. 753. The Committee recalls that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions. In any case, it is a matter of regret if, in the rationalization and staff-reduction process, there is no attempt to consult or try to reach an agreement with the trade union organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 935]. The Committee observes that the Government has not indicated that consultations have taken place with the trade union on the restructuring of INDER and the Committee trusts that the Government will ensure such consultations shall occur if future restructuring were to take place.
6. 754. With regard to the refusal to register the new committee of the Trade Union of Workers at the Cartagena Communications Company (SINTRATELECARTAGENA) as a result of the company going into liquidation and the allegations presented by the Trade Union of Workers and Employees in Public and Autonomous Services and Decentralized Institutions of Colombia (SINTRAEMSDES) concerning the dismissal of the president of the union three days after having entered the new committee on the trade union register, the Committee regrets that the Government has not sent its observations in this regard and requests it to do so without delay.