Rapport définitif - Rapport No. 391, Octobre 2019

1. 154. The complaint is set out in two communications from the General Confederation of Labour (CGT) dated 6 June 2014 and 31 January 2017.
2. 155. The Government sent its observations in communications dated 19 June 2015 and 13 February 2018.
3. 156. 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 complainant’s allegations

1. 157. In its communications dated 6 June 2014 and 31 January 2017, the CGT indicated that the municipal enterprise EMCALI (hereafter “the company”) is a state industrial and commercial enterprise responsible for providing water, energy, sewage and telecommunications services in the municipalities of Cali, Yumbo and Puerto Tejada. The complainant alleges that, between May 2004 and January 2010, in the context of a supposed restructuring process, the company dismissed 52 members of the Union of Public Officials of EMCALI (SERVIEMCALI), including the seven members of the board of directors and 27 heads of department. This action halved the membership of the trade union, an affiliate of the CGT with 105 members that was founded on 5 May 2002. The complainant indicates that the dismissed workers were public employees and were not covered by the collective agreement signed between the company and the Union of Cali Municipal Enterprise Workers (SINTRAEMCALI), the majority union of official workers, which ensured job stability for official workers.
2. 158. The complainant organization alleges that the heads of department were wrongly classed as public employees when they should have been classed as official workers. The complainant indicates that, although the company’s board of directors had indicated that heads of department were classed as public employees in resolutions issued in 1997 and 1999, rulings issued on 1 July 1999, 23 May 2002 and 25 March 2004 by the State Council at the Administrative Disputes Chamber had annulled those resolutions, indicating that heads of department were classed as official workers and not public employees. Those rulings indicated that workers employed by a state industrial and commercial enterprise should generally be classed as official workers and that such enterprises should only appoint public employees in management posts or positions of trust in exceptional circumstances. It was also indicated that, given the type of activities and level of decision-making required by the role, the position of head of department should not be classed as a public employee post but an official worker post.
3. 159. The complainant organization indicates that the heads of department requested the company to class them as official workers on the basis of the three State Council decisions. The company refused that request and the workers therefore lodged tutela proceedings as a temporary measure to protect their rights; however, these proceedings were dismissed as the action was deemed inadmissible. The complainant indicates that SERVIEMCALI asked the company through different communications and requests to comply with the State Council decisions, and that not only did the company not respond to those requests, but it once again classed heads of department as public workers in resolution No. 820 of 20 May 2004. The complainant maintains that the company should reinstate the workers dismissed between 2004 and 2010, including the heads of department who were dismissed in the context of a restructuring process at the company, which was done under false pretences with the sole purpose of circumventing the State Council decisions.

B. The Government’s reply

1. 160. In its communications dated 19 June 2015 and 13 February 2018, the Government sent its observations as well as those of the company. The Government indicates that, in 2002, with the aim of salvaging the operational and financial viability of the municipal enterprise, the national Government intervened and the company has been administered by the Office of the Superintendent of Domestic Public Services ever since. The Government indicates that the Office of the Superintendent implemented various measures with the aim of rescuing the company from its difficult financial situation that exposed it to the threat of liquidation, one of which was the issuing of resolution No. 820 on 20 May 2004, which adopted the internal bylaws of the company, provided for a new organizational structure and list of positions, redefined the general responsibilities of the different divisions and indicated the roles to be carried out by official workers and public employees. The resolution declared that the main objective of the measures adopted was to improve the company’s efficiency and effectiveness and thus its recovery and viability.
2. 161. The Government indicates that although national legislation states that persons providing services at state industrial and commercial enterprises are official workers, companies should specify in their internal bylaws which roles involving management or positions of trust should be carried out by people classed as public employees. The Government indicates that the legality of resolution No. 820 of 2004 was assessed and the resolution was subsequently annulled; however, the State Council, the highest authority of the competent administrative tribunal, issued a ruling on the matter on 15 December 2011, determining that the resolution was lawful. The Government provided extracts of that ruling, which indicated that: (i) in 2014, the State intervened in the company owing to the critical financial situation in which the company found itself; (ii) the Office of the Superintendent of Domestic Public Services had taken on the management and administration of the company; (iii) although in principle it would have fallen to the company’s board of directors to adopt a resolution of that kind, in this case the company had been subject to Government intervention and the Office of the Superintendent was charged with the administration of the company and therefore had the power to issue resolution No. 820 of 2004 and to determine the roles involving management or positions of trust that should be carried out by public employees; and (iv) the company’s new bylaws had not been produced by the Office of the Superintendent on impulse or arbitrarily, but were the product of technical studies that had led to the organizational restructuring of the company.
3. 162. The company indicates that official workers and public employees alike had been dismissed through the organizational restructuring process authorized through resolution No. 820 of 2004. It indicates that, in total, 385 positions were eliminated (349 official worker positions and 36 public employee positions) and states that restructuring and eliminating roles cannot be considered an anti-trade union activity as the dismissals had not been arbitrary and the assurances enjoyed by union officials had been respected. The company indicates that seven members of the SERVIEMCALI board of directors who held public employee positions and were dismissed in the context of the restructuring process were reinstated through tutela proceedings. The details of their cases were as follows: Mr Villarreal and Mr Muñoz are currently working for the company and the other five had taken voluntary redundancy in order to receive their old-age pension; specifically, Ms Montoya retired on 16 November 2005, Ms Trujillo retired on 28 December 2007, Mr Millán de Rodríguez retired on 31 December 2014, Ms Peláez retired on 15 May 2015 and Mr Martín Mancera retired on 1 August 2017. The company also indicates that most SERVIEMCALI officials between 2002 and 2011 were still employed by the company and those who were no longer employed had either taken voluntary redundancy, died or retired to take an old-age pension. It indicates that only two of these officials were dismissed on different dates by unilateral decision.
4. 163. The Government indicates that although SERVIEMCALI sought to have heads of department at the company recognized as official workers to ensure that they would be covered by the collective agreement signed with the company, public employees are also able to sign agreements with the company following the adoption of Decree No. 160 of 5 February 2014, which governs the law that approved the Labour Relations (Public Service) Convention, 1978 (No. 151). The Government indicates that, on 22 January 2015, SERVIEMCALI and SIEMCALI (another trade union) jointly presented lists of demands to the company, selected a negotiating committee and reached the direct settlement phase, proving that both parties wished to engage in negotiation.

C. The Committee’s conclusions

1. 164. The Committee observes that, in this case, the complainant alleges that a municipal enterprise used a restructuring process to carry out acts of anti-trade union discrimination and interference. The Committee notes that, as indicated by the complainant organization and the Government, the case refers to a state industrial and commercial enterprise in which the workers are mostly official workers and a small number are public employees that hold management posts or positions of trust.
2. 165. The Committee notes that the complainant organization alleges that: (i) between 2004 and 2010, in the context of a supposed restructuring process, the company dismissed half of the members of SERVIEMCALI, including the seven members of the board of directors and 27 heads of department; (ii) the aim of the restructuring process was to dismiss the heads of department, who were wrongly classed as public employees and therefore did not benefit from the collective agreement that ensured job stability for official workers; (iii) in 1999, 2002 and 2004, the State Council at the Administrative Disputes Chamber annulled the resolutions in which the company’s board of directors had classed heads of department as public employees rather than official workers and indicated that, in the light of the type of activities and level of decision-making required by the role, the position of head of department could not be classed as a public employee position; and (iv) the company did not comply with the decisions mentioned above, did not recognize the heads of department as official workers and, on 20 May 2004, issued a resolution in which it again classed the heads of department as public workers.
3. 166. In this regard, the Committee notes that the Government and the company indicate that: (i) from 2002, and given the critical financial situation in which the company found itself, the Government intervened in the company and the Office of the Superintendent of Domestic Public Services implemented various measures aimed at improving the efficiency and effectiveness of the company, including the issuing of resolution No. 820 of 20 May 2004, which defined a new list of positions and general responsibilities for the different divisions, specified the roles to be carried out by official workers and public employees and determined that heads of department would be classed as public employees; (ii) in a ruling issued on 15 December 2011, the State Council at the Administrative Disputes Chamber determined that this resolution was lawful; (iii) as a result of the restructuring, 385 roles were eliminated, namely 349 official worker positions and 36 public employee positions; (iv) the seven members of the SERVIEMCALI board of directors who were dismissed were reinstated through tutela proceedings: two of those members currently work at the company and the other five had requested voluntary redundancy in order to receive their old-age pension; and (v) although SERVIEMCALI had sought to have heads of department at the company recognized as official workers to enable them to benefit from the collective agreement, following the adoption of Decree No. 160 in 2014, public employees are also able to sign collective agreements with the company and, on 22 January 2015, SERVIEMCALI and another trade union jointly presented a list of demands to the company, selected a negotiating committee and reached the direct settlement phase.
4. 167. The Committee observes that the information provided by the parties indicates that from 2002 to 2013 the company was the subject of an intervention by the national Government and the Office of the Superintendent of Domestic Public Services was responsible for its administration. During that period, the Office of the Superintendent implemented a range of measures, such as the issuing of a resolution in 2004 that defined a new list of positions, specified the roles to be carried out by official workers and public employees and determined that heads of department would hold public employee positions.
5. 168. The Committee observes that the classification of heads of department within the company has been the subject of various proceedings brought before the courts of administrative disputes and that the State Council at the Administrative Disputes Chamber ruled on 15 December 2011 that the 2004 resolution through which the Office of the Superintendent had classed the position of head of department as that of a public employee was lawful. The Committee underscores that it is not within its remit to adopt a decision on the classification of certain public servants as official workers or public employees and that its responsibility is solely to ensure that the principles of freedom of association are fulfilled in the public sector. The Committee observes in this respect that, as a result of the adoption of Decree No. 160 of 5 February 2014, public employees are able to sign agreements with the company and that SERVIEMCALI presented a list of demands to the company in 2015.
6. 169. In relation to the dismissals carried out as a result of the restructuring of the company, the Committee observes that, according to the Government and the company, the seven members of the SERVIEMCALI board of directors who had been dismissed were reinstated through tutela proceedings. It also observes that of the 385 workers dismissed, 52 were SERVIEMCALI members and as a consequence the trade union lost half of its members. Observing that the Committee does not possess evidence to conclude that the trade union members, whether public employees or official workers, had been dismissed in connection with their trade union membership or the exercise of legitimate trade union activities, the Committee underscores that it is not within its purview to pronounce itself on allegations relating to restructuring programmes, even when these involve collective dismissals, unless they have given rise to acts of anti-union discrimination or interference [see Compilation, op. cit., para. 1114]. In the light of the above, and in the absence of any other information from the complainant organization, the Committee will not pursue its examination of this case.