Rapport définitif - Rapport No. 368, Juin 2013

1. 249. The complaint was presented in a communication dated 27 May 2011 from the Union of Workers of the Municipality of Villavicencio. It was supported by the General Confederation of Labour (CGT).
2. 250. The Government sent its observations in a communication dated 14 September 2012.
3. 251. 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 complainant’s allegations

1. 252. In its communication dated 27 May 2011, the Union of Workers of the Municipality of Villavicencio alleges that the labour relationship of 36 employees of the Municipality of Villavicencio, who were entitled to legal, constitutional and international protection of their right to join a trade union, was terminated on the grounds that their posts had been suppressed. It states that this legal procedure is acceptable under national legislation provided that certain legal requirements are complied with, including an agreement signed by the municipal council empowering the Mayor to reorganize the administration of the territory; the carrying out of a technical survey of staffing requirements; approval from the administrative department of the public service; the earmarking of funds by the Ministry of Finance to finance the new staffing arrangements; and the issuance of a decree by the Executive Chief – in this case the Mayor of the Municipality of Villavicencio – setting up the new administrative structure and staffing plan. The complainant states that, without the said legal requirements having been complied with, six of the workers listed were notified of the decision to suppress their posts pursuant to Municipal Decree No. 176 of 29 December 1997 and the other 30 workers pursuant to Municipal Decree No. 116 of 12 June 2001.
2. 253. The complainant states that on 1 June 2011, the Public Prosecutor’s Office of the province of Villavicencio made a public declaration to the effect that the technical survey that the Office of the Mayor of Villavicencio should have conducted did not exist as it had not been officially presented by the enterprise contracted to carry it out officially. The complainant adds that, when the public servants were individually notified that their posts were being suppressed, they had decided to establish the Trade Union Association of Public Employees of the Municipality of Villavicencio (ASOSIEMPUVI). Their decision, along with the names of the founder members and the members of the union’s executive board, was communicated to the Mayor on 19 June 2001, and to the Ministry of Social Welfare on 20 June 2001. The complainant states that all the employees concerned lodged an appeal with the Administrative Tribunal of the department of El Meta to have the decision declared null and void and their labour rights restored in accordance with article 85 of the Administrative Disputes Code. According to the complainant, all the decisions handed down by the Tribunal on the 36 appeals and confirmed by the Council of State were negative, that is, in not a single case were grounds found for declaring null and void or irregular the decision taken pursuant to the decrees issued by the Mayor of Villavicencio.
3. 254. The complainant organization states that, following the suppression of some 200 public service posts since July 2006, the Administrative Tribunal of El Meta and the Council of State decided to reverse the case law and declared Decree No. 116 of 12 June 2001 to be null and void in 15 cases concerning employees, most of whom were not involved in the founding of ASOSIEMPUVI, and ordered that they be reinstated. The complainant organization states that, given the reversal of the case law and the fact that every one of the employees whose appeal was rejected was in the same situation as those who were reinstated, they decided to request court protection against the decisions that had gone against them. The Council of State, which is the competent judicial body in such matters, ruled against their requests for protection against the violation of their fundamental rights and ruled that they were irreceivable.

B. The Government’s reply

1. 255. In its communication of 14 September 2012, the Government states that the complaint does not meet the requirements to be admissible under ILO’s procedures, as the complainant organization states explicitly that the union was established after the employees had been notified of the suppression of their posts. The Government considers that, under the circumstances, it is impossible to claim that their freedom of association was violated and that certain aspects of the case directly affected the organization. The Government asserts that no workers affiliated to the union were dismissed since, as noted, the organization was established after the communication notifying them of the suppression of their jobs. The Government also recalls that the Committee has in the past considered that it is only called upon to rule on allegations regarding restructuring and streamlining programmes or processes that have given rise to acts of anti-union discrimination or interference in union affairs, which is not the situation of the case under examination.
2. 256. The Government adds that the freedom of association of a trade union organization that did not exist can hardly have been violated and that it is hard to see how restructuring can have infringed Convention No. 87, as there is no evidence to suggest that any attempt was made to undermine freedom of association. The Government states that, as the complainant organization itself notes, the judicial authorities have already ruled on each individual case and have handed down rulings rejecting the appeals presented by the employees concerned. It adds that, although the Council of State has, on several occasions, examined the legality of Decree No. 116 of 2001, it has declared the appeals by the individual employees to be partially null and void. The Government cites the following ruling handed down by the Council of State: “The jurisprudence of the Section has been upheld in so far as, where a service is discontinued following the suppression of a post, and specifically in respect of individual administrative decisions against which an appeal is lodged, it is impossible to generalize or lay down a rule that can be applied equally to every case; each suppression of a post by the Administration therefore has to be analysed on its own merits.”
3. 257. The Government states further that the Municipality of Villavicencio has informed it that: (1) each of the persons cited in the list sent by the complainant organization received due compensation as required by the law; (2) the 15 employees concerned were notified by the Vice-Secretariat for Human Development that, by virtue of Decrees Nos 176 of 1997 and 116 of 2001, the post that they occupied had been removed from the list of posts of the central administration of the Mayor’s Office, and that they could choose between a preferential right to reinstatement or the payment of compensation, for which they were given five days to make known their decision in writing; (3) at the time they were notified of the suppression of their posts, none of the 36 officials had trade union immunity and all of them received due compensation; and (4) none of the appeals for legal protection or for the decisions regarding the suppression of posts to be declared null and void was upheld in respect of the employees referred to by the complainant.

C. The Committee’s conclusions

1. 258. The Committee observes that, in the case under examination, the complainant alleges that the labour relationship of 36 employees (identified by name) of the Municipality of Villavicencio in the Department of El Meta, who were entitled to legal, constitutional and international protection of their right to join a trade union, was terminated on the grounds that their post had been terminated pursuant to Municipal Decrees Nos 176 of 29 December 1997 and 116 of 12 June 2001. The complainant states that the Administrative Tribunal of El Meta and the Council of State rejected all the appeals lodged by the employees concerned and that, following the suppression of some 200 posts, the Council of State ordered the reinstatement of 15 workers (other than the 36 workers mentioned by the complainant) and declared that the application of Decree No. 116 of 12 June 2001 was null and void.
2. 259. The Committee takes note of the Government’s indication in this respect that: (1) the complainant organization states explicitly that the trade union was established after the employees had been notified of the suppression of their posts and that it was therefore impossible to claim that their freedom of association had been violated or that the case raised issues that directly affected the trade union; (2) that no workers affiliated to the union had been dismissed since, as noted, the organization was established after the communication notifying them of the suppression of their posts; (3) the freedom of association of a trade union organization can hardly have been violated if it did not exist and it is hard to see how restructuring can have infringed Convention No. 87, as there is no evidence to suggest that any attempt was made to undermine freedom of association; (4) as the complainant notes, the judicial authorities have already ruled on each individual case and handed down rulings rejecting the appeals presented by the employees referred to in the complaint; and (5) although the Council of State has on several occasions examined the legality of Decree No. 116 of 2001, it has in individual instances declared the Decree to be partially null and void (nonetheless, these cases do not concern the 36 dismissed workers mentioned in the allegations). The Committee also takes note of the Government’s indication that the Municipality of Villavicencio has informed it that: (1) each of the persons cited in the list sent by the complainant organization received due compensation as required by the law; (2) the employees concerned were notified by the Vice-Secretariat for Human Development that, by virtue of Decrees Nos 176 of 1997 and 116 of 2001, the post that they occupied had been removed from the list of posts of the central administration of the Mayor’s Office, and that they could choose between a preferential right to reinstatement or the payment of compensation, for which they were given five days to make known their decision in writing; (3) at the time they were notified of the suppression of their posts, none of the 36 officials had trade union immunity and all of them received due compensation; and (4) none of the appeals for legal protection or for the decisions regarding the suppression of posts to be declared null and void was upheld in respect of the employees referred to by the complainant.
3. 260. Given the circumstances, and bearing in mind all the information provided and, specifically, that the suppression of posts concerned a large number of employees (some 200 according to the complainant) and not just the 36 identified in the complaint, that the ASOSIEMPUVI was established after the decision was taken to suppress the posts in the Municipality of Villavicencio and that the various jurisdictional bodies rejected the appeals lodged by the workers listed in the complaint, as well as the length of time that has passed since the restructuring, the Committee will not proceed any further with its examination of the allegations presented in this case.