Report in which the committee requests to be kept informed of development - Report No 309, March 1998

Case No 1916 (Colombia) - Complaint date: 18-NOV-96 - Closed

Allegations: Anti-union dismissals following the declaration of a strike to be illegal

1. 92. The complaint in this case appears in a communication from the Trade Union of Workers of Medellín Municipal Enterprises (EEVVMM) dated 18 November 1996. The Government sent observations in a communication dated 23 June 1997.
2. 93. 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 94. In its communication of 18 November 1996, the Trade Union of Workers of the Medellín Municipal Enterprises (EEVVMM) alleges the dismissal of 209 workers (including all the members of the union's executive, the members of the Complaints Committee, the members of the Negotiating Committee and members of the three previous union executives, as well as many rank and file members) following the declaration of illegality of the strike that took place in February 1993 during a dispute arising from negotiations on a collective agreement at the refuse collection undertaking known as Medellín Municipal Enterprises (Empresas Varias Municipales de Medellín). The strike was declared illegal on 18 February 1993 by the Ministry of Labour and Social Security, which cited sections 430, paragraph 1(e) and (f) and section 450(a) of the Labour Code which prohibit strikes in the public service. (The complainant provides a copy of the ministerial decision quoting the relevant passages from these sections. Section 430, paragraph 1(e) and (f) stipulates that: "In accordance with the Constitution, strikes shall be prohibited in the public service. For this purpose, the term "public service" shall be deemed to cover any organized activity aimed at safeguarding essential public services in a regular and uninterrupted manner within a special statutory framework, whether undertaken by the State, directly or indirectly, or by private individuals; the term public service thus covers among other things the following activities: ... (e) (activities) ... market squares ... (f) (activities) pertaining to all public sanitary and cleaning services").

1. 95. The complainant states that the trade union and the workers concerned lodged administrative and judicial appeals which were exhausted in March 1996 and that all the administrative decisions and judicial rulings given in the case have accepted that the dismissals were in accordance with national legislation.

B. The Government's reply

1. 96. In its communication of 23 June 1997, the Government refers to infringements of certain provisions of the collective agreement by the undertaking known as Medellín Municipal Enterprises and to an administrative inquiry into the matter requested by the complainant in January 1993. The Government in its reply describes the action taken in response to the complaints in separate administrative and judicial bodies.
2. 97. Given that these government observations bear no relation to the allegations -- and some indeed relate to facts which pre-date the allegations in the present case -- the Office in a communication dated 10 July 1997 asked the Government to provide more detailed information which, however, has not so far been received.

C. The Committee's conclusions

1. 98. The Committee notes that in the present case, the complainant alleges the dismissal of 209 workers of the undertaking known as Medellín Municipal Enterprises (which specializes in refuse collection), including all the members of the union's executive, the members of the Complaints Committee, the members of the Negotiating Committee and members of the three previous union executives, as well as many rank and file members, following the declaration of illegality of a strike that took place in February 1993 during a dispute arising from negotiations on a collective agreement. The Committee notes that the strike was declared illegal on 18 February 1993 by the Ministry of Labour and Social Security on the basis of provisions contained in section 430, paragraph 1(e) and (f) and section 450(a) of the Labour Code, which prohibit strikes in public services which the Government considers to be essential (although the Committee considers that they are not essential in the strict sense of the term).
2. 99. First of all, the Committee regrets that the Government in its reply makes no specific reference to the dismissals that followed the declaration of illegality of the strike and instead refers to other issues (infringements by the employer of certain provisions of the collective agreement, some of which pre-date the facts alleged in the present case) which are not addressed by the present allegations. The Committee notes that on 10 July 1997 the Office asked the Government for information on the questions raised by the complainant which, however, has so far not been received.
3. 100. As regards the declaration of illegality of the strike on the grounds of the essential nature of the refuse collection service provided by the undertaking, the Committee wishes to emphasize that the refuse collection service is not an essential service in the strict sense of the term (that is to say, a service the interruption of which is likely to endanger the life, safety or health of the whole or part of the population) which could constitute grounds for an absolute prohibition on strike action, but that, given the nature of the service in question, the Committee of Experts on the Application of Conventions and Recommendations has stated that a service might become essential if the strike affecting it exceeds a certain duration or extent so as to endanger the health or life of the population (see General Survey on "Freedom of association and collective bargaining", 1994, para. 160). In this connection, the Committee considers that in appropriate cases in which the imposition of minimum services is permissible, such as in the sector of refuse collection, measures should be taken to guarantee that such minimum services avoid danger to public health and safety. In the present case, bearing in mind these considerations, the Committee deplores the declaration of illegality of the strike in the refuse collection sector.
4. 101. Furthermore, the Committee recalls that for a number of years, when considering how far Colombian legislation conforms with the provisions of Convention No. 87, the Committee of Experts has criticized the provisions contained in the Labour Code on the basis of which the Government declared the strike to be illegal and which prohibit strike action in a very wide range of public services which are not necessarily essential in the strict sense of the term (see the relevant observation of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part 1A, 1998).
5. 102. At the same time, noting that the strike was declared illegal by an administrative authority, the Committee wishes to draw the Government's attention to the fact that "Responsibility for declaring the strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 522), particularly in the public sector.
6. 103. Under these circumstances, the Committee deplores the mass dismissals that have taken place and urges the Government to take all necessary measures to reinstate in their posts the trade union leaders, members and workers who were dismissed for participating in a strike in 1993 at the undertaking known as Medellín Municipal Enterprises, and if this is not possible, to ensure that they receive full compensation. The Committee also requests the Government to take measures to ensure that in future, declarations on the legal status of strikes are made by an independent body and not by the administrative authority. The Committee requests the Government to keep it informed of measures taken in this regard.
7. 104. Lastly, the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, requests the Government to take steps to amend those provisions of the Labour Code that prohibit strikes in a wide range of services which cannot be considered essential in the strict sense of the term (in particular sections 430 and 450).

The Committee's recommendations

1. 105. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a. The Committee urges the Government to take all necessary measures to reinstate in their posts the trade union leaders, members and workers who were dismissed for participating in a strike at the undertaking known as Medellín Municipal Enterprises and, if this is not possible, to ensure that they receive full compensation. Similarly, the Committee requests the Government to take measures to ensure that in future, declarations on the legal status of strikes are made by an independent body and not by the administrative authority. The Committee requests the Government to keep it informed of measures taken in this regard.
   • b. The Committee, like the Committee of Experts on the Application of Conventions and Recommendations, requests the Government to take steps to amend those provisions in the Labour Code which prohibit strikes in a wide range of services which cannot be considered essential in the strict sense of the term (in particular, sections 430 and 450).