Definitive Report - Report No 284, November 1992

Case No 1631 (Colombia) - Complaint date: 01-FEB-92 - Closed

1. 389. The complaint is contained in a joint communication from the National Union of Banking Employees (UNEB) and the National Federation of Bank Workers' Unions (FENASIBANCOL) of February 1992. These organisations provided additional information in a communication dated 1 April 1992. The Government sent its observations in communications dated 2 June and 23 July 1992.
2. 390. Colombia has ratified both 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 complainants' allegations

1. 391. In their communications of February and April 1992, the National Union of Banking Employees (UNEB) and the National Federation of Bank Workers' Unions (FENASIBANCOL) allege that when the UNEB presented a list of claims to the Banco Cafetero and the Banco Popular in December 1991, the Minister of Labour ordered the setting up of compulsory arbitration tribunals to settle the respective labour disputes.
2. 392. The complainant organisations add that on 11 February 1992, the Ministry of Labour issued two resolutions declaring the work stoppages organised by the UNEB illegal. As a result of these resolutions, the Banco Cafetero and the Banco Popular simultaneously dismissed 60 trade union officials and negotiators of the claims.

B. The Government's reply

1. 393. In its communication of 2 June 1992, the Government states that the Ministry of Labour and Social Security, in resolutions No. 263 of 31 January and No. 317 of 5 February 1992, ordered the setting up of a compulsory arbitration tribunal, in accordance with the provisions of section 34 of Decree No. 2351 of 1965, to examine the labour dispute between the Banco Cafetero and the Banco Popular and the National Union of Banking Employees (UNEB). In the same way, in resolutions Nos. 397 and 398 of 11 February 1992, the Ministry declared illegal the work stoppages by workers in some departments of the Banco Cafetero and the Banco Popular which had been corroborated by Ministry officials.
2. 394. The Government adds that the declaration of illegality is based on section 430 of the Substantive Labour Code, which prohibits strikes in public services. The latter are defined as any activities which satisfy public interest needs (the banking industry is deemed to be a public service in accordance with Decree No. 1593 of 1959). Likewise, section 63 of Act No. 50 of 1990 establishes that the suspension of activities in a public service is illegal. As regards the arbitration tribunals, section 2 of Decree No. 753 empowers the Ministry of Labour and Social Security to set up such tribunals if it has not been possible to settle a collective labour dispute in the banking sector.
3. 395. The Government points out that article 56 of the Political Constitution of Colombia guarantees the right to strike, except in the essential public services defined by Parliament. It also stipulates that the law shall regulate this right; however, until this constitutional standard has been regulated by Parliament, the respective standards remain in force.
4. 396. In its communication of 23 July 1992, the Government states that collective agreements were signed in the Banco Popular and the Banco Cafetero on 28 May and 16 June 1992, respectively, and that the dismissed workers were reinstated.

C. The Committee's conclusions

1. 397. The Committee notes with interest the settlement of the collective disputes which had occurred in the Banco Popular and the Banco Cafetero, with the signing of collective agreements and the reinstatement of all dismissed workers and trade unionists.
2. 398. However, the Committee cannot but note that in the course of the above-mentioned collective disputes, a declaration of the illegality was made concerning the strikes called during the collective bargaining process on the basis that the disputes concerned public services, and the disputes were submitted to compulsory arbitration, in accordance with legislation in force. In this respect, the Committee would like to remind the Government, as it has done on several occasions, that the right to strike may be substantially restricted (for example, by the imposition of compulsory arbitration to end a strike) or prohibited in essential services only in the strict sense of the term, i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population (see 270th and 275th Reports, Cases Nos. 1434 and 1477 (Colombia), paras. 256 and 199, respectively). Although the banking services obviously play a fundamental role in the economy of the country and provision might be made by agreement between the social partners for the establishment of a minimum service in the event of a prolonged strike, the sector is not an essential service as defined above which could justify the total ban on strikes there. Furthermore, the Committee recalls that the Committee of Experts on the Application of Conventions and Recommendations, during its examination of the application of Convention No. 87 by Colombia at its meeting in March 1992, emphasised that the legislative prohibition of strikes extended not only to essential services in the strict sense of the term, but to a wide range of the public services which are not necessarily essential (see the report of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 79th Session, Report III (Part 4A), 1992).
3. 399. In these circumstances, although it notes that under the new Constitution (July 1991) an Act will regulate the right to strike, the Committee requests the Government to take measures to guarantee that the future legislation on the right to strike pays full respect to the principles set forth in the previous paragraph.

The Committee's recommendations

1. 400. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee notes with interest that the collective disputes which had occurred in the Banco Popular and the Banco Cafetero were settled with the signing of collective agreements and the reinstatement of all dismissed workers and trade unionists.
   • (b) The Committee asks the Government to take steps to guarantee that the future legislation will respect the principles of freedom of association, in particular the principles on the right to strike, so that the provisions concerning prohibition or major restrictions as well as recourse to compulsory arbitration only apply to essential services in the strict sense of the term (that is, those services whose interruption would endanger the life, personal safety or health of the whole or part of the population).