Rapport définitif - Rapport No. 397, Mars 2022

1. 265. The complaint is contained in a joint communication from the General Confederation of Labour (CGT) and the National Union of Workers of the San Martín University Foundation (SINALTRAFUSM) dated 6 April 2016 and in additional communications from the SINALTRAFUSM dated 27 May and 14 November 2019.
2. 266. The Government of Colombia sent its observations on the allegations in communications dated 6 March and 6 October 2017, 12 November 2019, 10 February and 5 March 2020 and 1 February 2022.
3. 267. 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) and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 268. In their communication of 6 April 2016, the complainant organizations allege the commission of a series of anti-union acts by the San Martín University Foundation (hereinafter referred to as the university foundation) in an attempt to get rid of SINALTRAFUSM. After highlighting that the university foundation, a private institution, has been under special surveillance by the Ministry of Education since January 2015 because of the serious management problems it is experiencing, the complainants specifically allege: (i) the refusal by the university foundation to negotiate the list of demands submitted by SINALTRAFUSM; (ii) the dismissal of several members and leaders of the trade union and the refusal by the university foundation to comply with reinstatement court orders, despite numerous requests made in this regard; (iii) the handing out in 2015 of a pamphlet containing threats against the life and physical integrity of union members; and (iv) the hiring of new workers despite the fact that union members who had been dismissed were still awaiting reinstatement.
2. 269. In communications dated 12 May and 14 November 2019, SINALTRAFUSM states that, following the opening of the present case before the Committee on Freedom of Association, conciliation proceedings had begun with the Colombian special committee for the handling of disputes referred to the ILO (Comisión especial de tratamiento de conflictos ante la OIT – CETCOIT), which led to the signing, on 27 February 2017, of an agreement with the university foundation containing, among other commitments,” ... respect for the principles of freedom of association and collective bargaining enshrined in ILO Conventions Nos 87, 98 and 151 [Labour Relations (Public Service) Convention, 1978 (No. 151)], and to reaffirm respect for dialogue”.
3. 270. The complainants allege that, however, not only has there been a failure to comply with the above-mentioned agreement, but that the university foundation has continued to commit anti-union acts in an attempt to get rid of SINALTRAFUSM. The complainants allege in particular: (i) the flouting of the reinstatement orders by the university foundation issued in favour of Ms Gloria Amparo Cortés (Proceedings File No. 2014-472 before labour court no. 17), Mr Juan Cruz Chávez (Proceedings File No. 2014-623 before labour court no. 21) and Mr Francisco Javier Rodríguez (Proceedings File No. 2014-540 before labour court no. 28), who are workers dismissed despite the fact that special trade union immunity against unfair dismissal applied in their cases because of an ongoing collective bargaining process; (ii) the refusal of the university foundation to negotiate the list of demands submitted by the union, and that this refusal led to the Ministry of Labour imposing a fine of 117 million Colombian pesos (approximately US$35,500) on 25 May 2018, a sanction that was upheld at second instance; and (iii) the dismissal on 30 August 2018 of the union’s president, Mr Ricardo Mejía, in violation of the trade union immunity protecting him.
4. 271. The complainants go on to state that: (i) at the CETCOIT meetings of 3 April, 16 May and 4 June 2019 aimed at verifying compliance with the agreement signed in 2017, the university foundation requested the suspension of these meetings pending a ruling by the labour courts on the validity of Mr Mejía’s dismissal; (ii) at first and second instance (second-instance ruling of 30 September 2019), the courts declared Mr Mejía’s dismissal unlawful and ordered his reinstatement; (iii) despite this, the university foundation has refused to comply with the reinstatement order; (iv) the 17 September 2019 follow-up session with the CETCOIT on the 2017 agreement was postponed at the request of the university foundation; (v) at the session on 8 October 2019, the university foundation’s legal representative failed to appear and, lastly, at the session on 23 October 2019, the university foundation stated that it would use legal channels to contest the ruling on Mr Mejía’s reinstatement; and (vi) on 23 October 2019, the Ministry of Labour imposed a new sanction on the university foundation (a fine of 82 million Colombian pesos (approximately US$25,000 ) for committing acts in violation of freedom of association.

B. The Government’s reply

1. 272. In its communication of 6 March 2017, the Government reports that the university foundation and SINALTRAFUSM signed an agreement before the CETCOIT on 27 February 2017. In a further communication dated 6 October 2017, the Government first provides the reply of the university foundation’s legal representative, who states that: (i) the university foundation is a private not-for-profit educational institution; (ii) from 2009 onwards, complaints against the university foundation by students or their parents, teachers and administrative staff of the entity increased; (iii) as a result of the above, the Ministry of Education had to impose serious administrative sanctions on the university foundation for non-compliance with the rules governing higher education public service; (iv) in November 2014, the Ministry of Education ordered preventive measures to be taken to re-establish the quality and continuity of the education service in the institution in question and appointed an on-site inspector to monitor how the situation was developing; (v) a trust was created to manage the institution’s funds and assets and, in February 2015, an order was issued to replace the university foundation’s directors for a period of one year, renewable once; (vi) the economic and financial situation of the institution has prevented it from paying its labour dues and joint working sessions have been held with the Ministry of Labour and Ministry of Education in this regard.
2. 273. With regard to the alleged refusal of the university foundation to negotiate the list of demands submitted by SINTRALFUSM, the legal representative states that: (i) the sanction for contempt initially imposed on the university foundation was annulled at second instance, and (ii) the risk of the winding up and permanent closure of the institution still remains, which, as recognized by the jurisprudence of the Constitutional Court, can justify the refusal to initiate a collective bargaining process that might run counter to the aims of the winding-up process. The university foundation’s legal representative refers, lastly, to the conciliation proceedings undertaken within the CETCOIT, indicating that these led to compromises being reached.
3. 274. The Government also provides the observations of the coordinator of the Ministry of Labour’s special investigations unit, who states that: (i) on 31July 2017, the university foundation was sanctioned with a fine of 100 legal monthly minimum wages for failure to pay its labour dues, and (ii) no investigations related to violation of the right to freedom of association or refusal to negotiate were carried out in this unit. The Government also provides the observations of the Bogotá district directorate of the Ministry of Labour, which states that an administrative investigation is under way into the alleged refusal of the university foundation to negotiate the list of demands submitted on 12 April 2016 by SINALTRAFUSM.
4. 275. Lastly, the Government provides its own observations and indicates that: (i) both the complainants and the institution itself highlight the crisis situation that the university foundation continues to experience; (ii) the Ministry of Labour has paid particular attention to the university foundation’s compliance with its individual and collective labour obligations, having imposed a fine for the violation of the individual rights of the university foundation’s workers and having carried out an investigation into the university foundation’s refusal to bargain collectively; (iii) thanks to that investigation by the Ministry of Labour and the mediation process undertaken within the CETCOIT, the university foundation and SINALTRAFUSM undertook to respect freedom of association and conducted negotiations between 25 September and 14 October 2017 on the list of demands submitted by the trade union organization (direct settlement stage), which demonstrates that the university foundation’s refusal to negotiate has been resolved. The Government adds in this respect that, in accordance with what has been stated by the Constitutional Court, the protection of the right to collective bargaining does not imply an obligation to reach an agreement. The Government concludes that the public authorities have acted diligently to resolve the above-mentioned difficulties and that, therefore, there is no violation of Convention Nos 87 and 98.
5. 276. In a communication dated 12 November 2019, the Government forwards, at the request of SINALTRAFUSM, the CETCOIT’s report on the mediation process undertaken by that body between the university foundation and the trade union in question. It is clear from this report that: (i) the CETCOIT organized four meetings in 2019 to follow up on the agreement reached by the parties in February 2017 (3 April, 16 May, 8 and 22 October 2019); (ii) these meetings highlighted the ongoing conflict situation between the two parties, revolving in particular around the dismissal, on 30 August 2018, of the president of SINALTRAFUSM, Mr Ricardo Mejías, and the university foundation’s refusal to comply with a reinstatement court order; (iii) the CETCOIT facilitator, Mr. Noel Ríos, “reportedly suggested considering: the possibility of reinstating the trade union’s new president, which the university foundation’s representatives do not consider possible, in addition to the fact that they are awaiting a court ruling; the possibility of support for the trade union organization, which, according to the university foundation’s representatives, has been provided with office space and equipment; (iv) SINALTRAFUSM considers that, after the four scheduled follow-up sessions, all forms of mediation under the auspices of the CETCOIT have been exhausted and it is now appropriate to refer the matter back to the Committee on Freedom of Association.
6. 277. In a new communication dated 10 February 2020, the Government first provides the university foundation’s new observations. The university foundation states that: (i) after completion, without reaching agreement, of the direct settlement stage in October 2017, SINALTRAFUSM submitted a new list of demands on 15 May 2018, negotiations on which ended on 28 June 2018; (ii) due to the excessive nature of the union’s demands, it was also impossible to reach an agreement on this second list of demands and an arbitration tribunal was eventually appointed, which will make an arbitration award to put an end to the collective dispute; (iii) the union’s claims of attempts to annihilate the union are frivolous, as the organization grew from 115 members in 2016 to 131 members in 2019; (iv) regarding allegations of dismissals of SINALTRAFUSM members, Mr Francisco Javier Rodríguez has already been reinstated, in compliance with the corresponding court ruling, while Ms Gloria Amparo Cortés has retired and therefore has no interest in being reinstated; and (v) on the other hand, there has not been compliance with the ruling on the reinstatement of the president of SINALTRAFUSM, Mr Mejía, because it is not enforceable and the person in question was linked to the university foundation through a contract for the provision of services, which has expired, and not through an employment contract.
7. 278. The Government goes on to provide its own observations. After noting the information provided by the university foundation concerning the ongoing collective bargaining process, the situation of the dismissed SINALTRAFUSM members and the total number of SINALTRAFUSM members, the Government further states that: (i) despite an initial agreement in principle obtained in 2017, the contacts established with the CETCOIT did not help to bring the parties closer to agreement; (ii) the Ministry of Labour paid particularly attention to the situation of freedom of association in the university foundation and sanctioned it by means of a fine on 23 October 2019 for acts in violation of the right to freedom of association.
8. 279. In a communication dated 5 March 2020, the Government reports that SINALTRAFUSM stated that the university foundation complied with the court ruling handed down by the labour courts in relation to Mr Mejía and complied with his reinstatement.
9. 280. In a communication dated 1 February 2022, the Government provides new observations from the enterprise in which it updates the situation of the workers Mr Juan Cruz Chávez and Ms Gloria Amparo Cortés. The enterprise states in this regard that: (i) Mr Cruz Chávez was reinstated in his job on 3 February 2020 in compliance with the ruling of the Labour Chamber of the Bogotá High Court; (ii) after the Labour Chamber of the Bogotá High Court ordered the reinstatement of Ms Gloria Amparo, the complainant, through her legal representative, stated that she had retired and was therefore not interested in being reinstated in the institution, which is why she had tendered her resignation with effect from 24 January 2020; and (iii) in all the above cases, the university foundation paid the corresponding labour dues. The Government then provides its own observations, indicating that the university foundation complied with all the court rulings, reinstating the workers who wished to be reinstated, thereby terminating any obligations ordered in the court rulings, so that the matter in question has already been resolved.

C. The Committee’s conclusions

1. 281. The Committee notes that, in the present case, the complainants allege: (i) the refusal of a private university foundation to bargain collectively with the trade union SINALTRAFUSM; and (ii) the dismissal of several members and leaders of the organization, including its president, in an attempt to get rid of the trade union, and the refusal to comply with the reinstatement court orders issued in this respect. The Committee notes that, for its part, the Government states that a mediation process was undertaken between 2017 and 2019 within the CETCOIT in an attempt to bring the parties closer to an agreement and that the various relevant authorities have taken the necessary measures to enforce compliance within the university foundation with the applicable rules on freedom of association and collective bargaining. The Committee also notes that the complainants, the Government and the university itself highlight the serious management problems experienced by the university foundation, a situation that led to the intervention in 2014 by the Ministry of Education in the management of the educational institution.
2. 282. With regard to the alleged refusal of the university foundation to bargain collectively, the Committee notes that the information provided by the complainants, the university foundation and the Government shows that : (i) SINALTRAFUSM submitted a list of demands in 2016 and, in view of the university foundation’s refusal to enter into negotiations, filed a labour administrative complaint in this respect; (ii) following the examination of the complaint in question by the labour administration and the mediation efforts of the CETCOIT, negotiations on the list of demands (direct settlement stage) took place in September and October 2017 without the parties reaching an agreement; (iii) SINALTRAFUSM submitted a new list of demands in 2018, which led to a new direct settlement stage with the university foundation; (iv) in the absence of an agreement, the union requested the labour administration to set up an arbitration tribunal.
3. 283. The Committee notes from the above information that: (i) the initial refusal of the university foundation to enter into negotiations has been addressed thanks to the intervention of the labour administration and the good offices of the CETCOIT; (ii) the discussions on the list of demands have not led to an agreement being reached; and (iii) in accordance with Colombian legislation, an arbitration tribunal has been appointed, and the issuance of its award remains pending. Underlining the importance of effective mechanisms for the voluntary resolution of collective disputes for the effective promotion of collective bargaining and noting that the collective bargaining process within the university foundation had begun several years ago, the Committee trusts that: (i) the arbitration tribunal will issue its award as soon as possible, and (ii) the existing mediation and conciliation mechanisms in the country will continue to facilitate the development of collective bargaining within the entity.
4. 284. With regard to the alleged dismissal of several members and leaders of the SINALTRAFUSM in an attempt to get rid of the trade union, the Committee notes that the allegations of the complainants refer specifically to the refusal of the university foundation to comply with court orders for the reinstatement of the following workers: Ms Gloria Amparo Cortés, Mr Juan Cruz Chávez, Mr Francisco Javier Rodríguez and the organization’s president, Mr Ricardo Mejía. The Committee further notes that the information and documents provided by the Government show that: (i) as reported by the university foundation, Mr Francisco Javier Rodríguez and Mr Juan Cruz Chávez were reinstated in their jobs, while Ms Gloria Amparo Cortés stated that she had retired and that she was therefore not interested in going back to the institution, which is why she had tendered her resignation; (ii) following the dismissal of the president of the SINALTRAFUSM, the labour administration imposed a fine on the university foundation on 23 October 2019 for acts in violation of the right to freedom of association; (iii) as reported by SINALTRAFUSM in March 2020 and by the enterprise in 2022, the university foundation did eventually reinstate Mr Ricardo Mejía; (iv) in all the cases in question, the university foundation paid the corresponding labour dues; and (v) the university foundation denies any attempt to annihilate the union and underlines that its membership has increased from 115 in 2016 to 131 in 2019.
5. 285. The Committee takes due note of the decisions taken by both the labour administration and the labour courts concerning the dismissal of several members and leaders of SINALTRAFUSM, as well as the effective reinstatement of Mr Mejía, Mr Rodríguez and Mr Cruz Chávez in the university foundation.
6. 286. Recalling that respect for the principles of freedom of association requires that workers should not be dismissed for engaging in legitimate trade union activities [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1164], the Committee trusts that the Government will continue taking all necessary measures in order to continue to guarantee full respect for freedom of association in the entity concerned.