Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 357, Juin 2010

1. 346. This complaint is contained in a communication of the General Confederation of Labour (CGT) of 10 June 2009.
2. 347. The Government sent its observations in communications dated 26 January and 8 March 2010.
3. 348. 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. Allegations of the complainant organization

1. 349. In its communication of 10 June 2009, the CGT alleges the dismissal by the TELEBUCARAMANGA company of eight workers on 29 July 2003, including six officials of the Trade Union of Communications Workers (USTC) (Claudia Yaneth García Espinosa, Raúl Arturo Mejía Herrera, Luis Alberto Alvarez Pabón, Reinaldo León Quintero, Jairo David Quintero Celis, Andelfo Díaz Amorocho, Diego Picón Morales and Angelmiro Hernández Niño) for participating in partial strikes on 22 and 24 January 2003, which were declared illegal by the Ministry of Social Protection on 14 April 2003 (resolution No. 0841). Ms Claudia Yaneth García Espinosa filed an action for reinstatement which was granted by the judicial authority at first and second instance, while the appeals lodged by the other workers were refused, and the action for protection (tutela) which had been filed was not admitted.
2. 350. The complainant organization also alleges that in the context of a restructuring process, the TELEBUCARAMANGA company requested and obtained authorization for the collective dismissal of 95 workers (resolution No. A-0668 of 21 July 2004, which was the subject of applications for review and appeal, which led to the resolution being upheld). At the same time, the company presented a voluntary retirement plan which 201 workers accepted. As a consequence of the authorization of dismissals, the company dismissed 65 workers in 2005, despite the fact that some of them enjoyed trade union immunity as officials or because the trade union had submitted a set of claims in November 2004, which meant that the workers were covered by the circumstantial immunity of bargaining. The 65 dismissed workers initiated legal proceedings in the ordinary courts which are pending. Subsequently, on 24 May 2007, the company dismissed the trade union leader, Mr Barrera Beltrán, although the judicial authority in an action for protection (tutela) ordered his reinstatement, a decision which was upheld by the Constitutional Court in judgement No. T-249/2008. Finally, on 11 March 2008, the company dismissed a further 27 workers, who filed actions for protection (tutela) on identical terms as Mr Barrera Beltrán, and these actions are being reviewed by the Constitutional Court.

B. The Government’s reply

1. 351. In its communication of 26 January 2010, the Government indicates with regard to the strikes in 2003, that the TELEBUCARAMANGA company is a telecommunications service provider which provides basic switched telephony to 205,000 users, Internet service to 58,000 users and television service to 7,000 users. The Ministry of Social Protection issued resolution No. 0841 of 14 April 2003 which declared the strikes by the workers on 22 and 24 January 2003 illegal, because they involved essential public services. The USTC filed an action for nullity before the Council of State, which was refused in a judgement of 19 June 2008. As a consequence of the illegality, TELEBUCARAMANGA determined the degree of participation of members of the executive board in the collective suspension of activities and terminated the individual employment contracts on 29 July 2003 of Raúl Arturo Mejía, Claudia Yaneth García, Jairo David Quintero, Luis Alberto Alvarez, Reynaldo León, Andelfo Díaz Amorocho, Angelmiro Hernández and Diego Picón Morales. These workers filed claims against the company. In seven cases, the company was exonerated and, in the case of Ms Claudia Yaneth García, her reinstatement was ordered, and that decision was implemented on 23 March 2007. The Government adds that the actions for protection (tutela) filed by the workers were unsuccessful.
2. 352. As regards the allegations relating to the collective dismissal of workers, the Government points out that the TELEBUCARAMANGA company requested authorization to undertake the collective dismissal of 417 workers in 2003. On 10 December 2003, the Ministry of Social Protection carried out a visual inspection of the facilities, with the involvement of the USTC. Finally, by resolution No. A-0668 of 21 July 2004, the dismissal of 95 workers was authorized. This decision was the subject of review and appeal by the USTC, which resulted in the confirmation of the authorization of the collective dismissal. The Government attaches the company’s reply, which indicates that at the same time a voluntary retirement plan was introduced which was taken up by 201 workers who were paid double compensation and other benefits. The plan was the subject of conciliation agreements with the approval of the Ministry of Social Protection. Legal proceedings were initiated against the plan and the conciliation agreements by some workers who considered that their consent had been forced. In this regard, the judicial authorities considered that the workers had not been forced and that the consent was given in the presence of the labour inspector as observer to ensure that the workers’ rights were not violated.
3. 353. The Government indicates, and this is confirmed by the company, that once the authorization of the dismissals was final, the company proceeded to carry out the following dismissals: on 17 January 2005, 28 workers; on 7 September 2005, 37 workers; on 24 May 2007, one worker; and on 11 March 2008, 27 workers. The company states that trade union immunity was respected in all the cases and that appropriate compensation was paid. The company mentions that the high incidence of dismissals among union members is due to the high level of membership in the company.
4. 354. The Government adds, and this is confirmed by the company, that the workers whose employment contracts were terminated filed ten legal actions for reinstatement in the ordinary courts, because they considered that they were covered by the circumstantial immunity of collective bargaining. Of these ten cases, in one (which concerned 25 workers), the authority refused the workers’ claims, and that decision was upheld. In three other actions (one of which concerned 26 workers), the workers’ claims were refused in a decision at first instance. These cases are currently subject to appeal. Six other cases are pending in the lower courts.
5. 355. The company adds that numerous actions for protection (tutela) were filed, most of which were refused, while others are pending and one, filed by Mr Paulino Barrera Beltrán was upheld by the Constitutional Court in judgement No. T-249/2008 in March 2008, and his reinstatement was ordered. Another action for protection (tutela), filed by 27 workers, was also admitted for examination by the Constitutional Court and is pending.
6. 356. In its communication of 8 March 2010, the Government refers to the ILO preliminary contact mission which took place in Colombia from 2 to 5 March 2010, in the course of which the parties to the present case stated that the mediation by the mission had brought them closer together.

C. The Committee’s conclusions

1. 357. The Committee observes that in this case, the CGT alleges: (1) the dismissal in 2003 of six trade union officials and two members of the USTC in relation to a strike in the TELEBUCARAMANGA company, which belongs to the telecommunications sector, which was declared illegal by the Ministry of Social Protection because it was an essential service; and (2) the collective dismissal of numerous company workers in 2005, 2007 and 2008 in the context of a restructuring process.
2. 358. With regard to the allegations relating to the dismissals of six officials and two trade unionists of the USTC by the company for participating in a strike, the Committee notes that, according to the CGT, the dismissal concerned Claudia Yaneth García Espinosa, Raúl Arturo Mejía Herrera, Luis Alberto Alvarez Pabón, Reinaldo León Quintero, Jairo David Quintero Celis, Andelfo Díaz Amorocho, Diego Picón Morales and Angelmiro Hernández Niño for participating in partial strikes on 22 and 24 January 2003, which were declared illegal by the Ministry of Social Protection on 14 April 2003 by resolution No. 0841. The Committee notes that Ms Claudia Yaneth García Espinosa filed an action for reinstatement which was granted by the judicial authority at first and second instance, while the appeals lodged by the other workers were refused, and the action for protection (tutela) had been filed but was not admitted. In this respect, the Committee notes that the Government indicates that the company is a telecommunications service provider which provides basic switched telephony to 205,000 users, Internet service to 58,000 users and television service to 7,000 users, and because they involved essential public services, the Ministry of Social Protection issued resolution No. 0841 of 14 April 2003 which declared illegal the strikes by the workers on 22 and 24 January 2003. The Committee also notes that the Government informs it that the USTC filed an action for nullity before the Council of State, which was refused in a judgement of 19 June 2008. The Committee further notes that the Government indicates that, as a consequence of the illegality, the company, taking into account the degree of participation of members of the executive board in the collective suspension of activities, terminated the individual employment contracts of the abovementioned union officials and members on 29 July 2003. These workers filed claims against the company, in which the company was exonerated except in the case of Ms Claudia Yaneth García whose reinstatement was ordered, a decision which was implemented on 23 March 2007. The Committee notes that the actions for protection (tutela) filed by the workers were unsuccessful. In these circumstances, observing that the strike in 2003 occurred in an essential service, and that the affected officials and workers had initiated legal actions which were refused, with the exception of one case, that of Ms Yaneth García whose reinstatement was ordered, the Committee will not proceed with the examination of these allegations.
3. 359. As regards the allegation relating to the collective dismissal, the Committee notes that, according to the complainant organization, in the context of a restructuring process, the company presented a voluntary retirement plan which was taken up by 201 workers. The Committee also notes that the company requested and obtained authorization for the collective dismissal of 95 workers (resolution No. A-0668 of 21 July 2004), that this authorization was the subject of applications for review and appeals, in which the resolution was upheld and, as a consequence: (1) the company dismissed 65 workers during 2005 (despite the fact that some of them enjoyed trade union immunity as officials or because the trade union had submitted a set of claims in November 2004, which meant that the workers were covered by the circumstantial immunity of bargaining) and those workers initiated legal proceedings in the ordinary courts which are pending; (2) on 24 May 2007, the company dismissed trade union official Mr Barrera Beltrán, although the judicial authority, in an action for protection (tutela) ordered his reinstatement, a decision which was upheld by the Constitutional Court in its judgement No. T-249/2008; and, lastly, (3) on 11 March 2008, the company dismissed a further 27 workers, who filed actions for protection (tutela) on the same terms as Mr Barrera Beltrán, and these actions are being reviewed by the Constitutional Court.
4. 360. The Committee notes that the Government states that: (1) the company requested authorization to undertake a collective dismissal in 2003; (2) in resolution No. A-0668 of 21 July 2004, the dismissal of 95 workers was authorized, the resolution was the subject of applications for review and appeals by the USTC, and these were decided in favour of the authorization of the collective dismissal; (3) once the authorization of the dismissals was final, the company proceeded to carry out the following dismissals: on 17 January 2005, 28 workers; on 7 September 2005, 37 workers; on 24 May 2007, one worker; and on 11 March 2008, 27 workers and, according to the company, always respecting the workers’ trade union immunity and paying the appropriate compensation; and (4) the workers whose employment contracts were terminated filed legal actions for reinstatement in the ordinary courts, which were refused in one case and pending in others, and actions for protection (tutela), most of which were refused, except for one, filed by Mr Paulino Barrera Beltrán, which was upheld by the Constitutional Court in judgement No. T249/2008 in March 2008, ordering his reinstatement; another action for protection (tutela), filed by 27 workers, was also admitted for examination by the Constitutional Court and is pending. The Committee requests the Government to keep it informed of developments in those appeals.
5. 361. In addition, observing that in its last communication the Government reports on an ILO preliminary contacts mission, which took place in Colombia from 2 to 5 March 2010, in the course of which the parties to the present case stated that the mediation by the mission had brought them closer together, the Committee notes this information with satisfaction and expects that this rapprochement will enable the parties to reach a solution to the matters raised in this case, in full compliance with the applicable national legislation. The Committee requests the Government to keep it informed of developments in this respect.