Interim Report - Report No 322, June 2000

Case No 1962 (Colombia) - Complaint date: 06-MAR-98 - Closed

Allegations: Dismissals connected with restructuring, in breach of a collective agreement; dismissals in violation of trade union immunity

1. 53. The Committee examined this case at its November 1999 meeting and submitted an interim report to the Governing Body (see 319th Report, paras. 137-156, approved by the Governing Body at its 276th Session (November 1999)).
2. 54. The Government sent its observations in communications dated 9 March and 9 May 2000.
3. 55. 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. Previous examination of the case

1. 56. In its previous examination of the case at its November 1999 meeting, the Committee formulated the following conclusions and recommendations concerning the allegations still pending (see 319th Report, para. 156):
2. -- as regards the alleged failure to apply the collective agreement in the Municipality of Neiva, the Committee requests the Government to take the necessary measures to bring about the reinstatement without loss of pay of 155 dismissed workers in the public administration in question. If this is not practicable given the considerable time that has elapsed since the dismissals, the Committee requests the Government to take steps to ensure that the workers receive full compensation without delay;
3. -- as regards the alleged dismissal of officials of HIMAT (now INAT), the Committee urges the Government to take measures to bring about the reinstatement of the dismissed union officials and, in the event that it is not practicable given the considerable time that has elapsed since the dismissals, to ensure that they receive full compensation without delay;
4. -- as regards the ruling, criticized by the complainant, rejecting the reinstatement of SINTRAMINOBRAS officials (Hernando Oviedo Polo, Fernando Leyva Zuleta and Omar Muñoz Cabrera, who were dismissed at the end of December 1994 without the previous judicial authorization required under law), the Committee urges the Government to reply without delay to the allegation and to provide a copy of any ruling handed down in this regard.
5. 57. Concerning the latter recommendation, the allegations of SINTRAMINOBRAS were as follows:
6. The union SINTRAMINOBRAS, in its communication of 14 April 1999, alleges that Mr. Hernando Oviedo Polo, Mr. Fernando Leyva Zuleta and Mr. Omar Muñoz Cabrera, who were members of the Public Works Trade Union SINTRAMINOBRAS Executive Board, were dismissed at the end of December 1994, although the Ministry of Transport had not obtained the authorization required for such action under sections 405 and 406-411 of the Labour Code. Proceedings were initiated to obtain the reinstatement of the trade unions in question and the Labour Court judge ruled that they enjoyed legal protection by virtue of their trade union office. This was confirmed by the Chamber for Civil Labour Affairs which, however, also found that the dismissals had been in keeping with the constitutional mandate and with the wishes of the Law Ministry and did not require judicial authorization.
7. B. The Government's reply
8. 58. As regards the allegations concerning the Municipality of Neiva, in its communications of 9 March and 9 May 2000 the Government reiterates that Colombia is a State subject to the rule of law and the division of powers and, while there should be harmonious collaboration among the branches in order to accomplish the goals pursued by the State, each must also respect the decisions taken by the other bodies in accordance with their functions and competence. Thus, the executive branch, in this case the Municipality of Neiva, is empowered by the Constitution to restructure itself. This is what occurred in the case of the Public Works Department of the Municipality of Neiva, which abolished this Department by Agreement No. 047 of 1992 of the Municipal Council of Neiva and by Decree No. 016 of 31 January 1993. The legality of these administrative acts was reviewed by the contentious administrative jurisdiction to which the workers had brought their case, but they subsequently withdrew their action before the Huila Administrative Tribunal, which issued a decision on 11 August 1994 accepting the withdrawal of their action.
9. 59. The workers brought actions for reinstatement before the labour courts of the city of Neiva. They appealed against the decisions rejecting their claims and the Superior Court of Neiva also rejected the claims lodged by 110 workers. One hundred of the workers filed an appeal for review (cassation) before the Supreme Court of Justice, which upheld the rulings of the court of second instance, while 14 union officers obtained payment of compensation for delay amounting to approximately 200 million pesos. Claims filed by four workers are currently before the labour courts. The ordinary labour courts and the contentious administrative jurisdiction have handed down definitive rulings in about 90 per cent of cases. It would be damaging to the juridical security of Colombia and its partners if the decisions of its judges were not respected. In view of the above and of the universally recognized division of powers, the Government cannot compel the Municipality of Neiva to disregard judicial decisions and order the reinstatement or payment of compensation that was not claimed. In addition, the Superior Court of Neiva handed down two rulings confirming the legality of the dismissals.
10. 60. Nonetheless, the Government emphasizes that the municipal authorities are willing to give priority to the workers dismissed as a result of restructuring in recruitment for any posts that may be created or in enterprises with which they may contract in future.
11. 61. The Government is bound to comply with, respect and obey judicial decisions because, like any other country organized as a constitutional State, it must adhere to the principles inherent in the division of powers. It is therefore not within its present remit to agree or disagree to the reinstatement or payment of the compensation urged by the Committee, given that the workers that are now complaining to this international organization had access to all the procedures and appeals guaranteeing the exercise of their right to defence and availed themselves of them. Although their claims were rejected by the judicial rulings handed down, these have become res judicata and must be respected.
12. 62. As regards the judicial decisions concerning the trade union officers of SINTRAMINOBRAS, Mr. Hernando Oviedo Polo, Mr. Fernando Leyva Zuleta and Mr. Omar Muñoz Cabrera, against the Ministry of Public Works and Transport, a final decision was handed down on 15 July 1997 in the second instance by the Superior Court of the Huila Judicial District. This decision upheld the ruling handed down by the second labour court of Neiva circuit on 21 June 1996 declaring that on 31 December 1994 the plaintiffs were protected by the constitutional guarantee of trade union immunity; released the defendant from the other claims filed against it and ruled that the non-existence of the obligation had been proved while the remaining objections had not, and that the costs would be paid by the plaintiffs. In sum, the three plaintiff union officers did not succeed in their action to obtain reinstatement on grounds of trade union immunity. Irrespective of the above, it should be pointed out that the Ministry of Public Works and Transport was under no obligation to initiate proceedings to lift trade union immunity (dismissal proceedings) in order to terminate the employment of the protected officers, since case law has repeatedly established that it is not necessary to lift immunity during the restructuring of state entities involving the elimination of certain posts held by workers protected by trade union immunity.
13. 63. As regards the dismissals of officers of HIMAT (now INAT), these were carried out under the terms of an interim mandate of the Constitution and were therefore in conformity with the law. Nonetheless, in letter No. 30/99 of December, the office of the Minister of Labour and Social Security requested the management of INAT to pay special attention to the recommendations of the Committee on Freedom of Association. In a letter dated 13 January 2000, the Regional Directorate of Huila states the following:
14. In the case of the officers of the Trade Union of Officials and Public Employees of HIMAT, now INAT, Oscar De Jesús Martínez Quintero, Alvaro Rojas Tovar, Hernando Cortes Yate, Isauro Lasso Vargas and Ascencio Gutiérrez Chala, they instituted tutela proceedings (for the protection of constitutional rights) against the ruling dated 15 October 1997 handed down by the Chamber for Civil Labour Affairs of the Superior Court of Neiva before the Disciplinary Chamber of the Sectional Council of the Huila Judiciary on the grounds that the court had erred in law in handing down the ruling because it disregarded the principle of favourability of labour provisions (article 53 of the Constitution) and violated their fundamental rights to due process (article 29 of the Constitution), equality before the law (article 13), work (article 25) and free access to the administration of justice (article 229); the court granted protection and overturned the decision, declaring that the Chamber against which the proceedings had been instituted would institute new proceedings within a binding time limit of 48 hours in order to reach a new decision as soon as possible. Since the writ of protection was dated 1 December 1999, the final judicial decisions are expected. The proceedings are still pending with the Superior Court. The Director of INAT stated that he would do everything in his power to reach a solution, in consultation with the workers protected by immunity and dismissed, in accordance with the new circumstances of INAT's legal status. INAT is currently carrying out the reinstatements, retirements and readjustment of compensation and the monthly list of persons to be retired is currently being prepared following the court's ruling and awaiting a reply from the Ministry of Finance concerning the attribution of resources. INAT indicates that the salaries due to the former employees have been paid. For the cases where reinstatement is not physically or legally possible, the Ministry of Labour has convened a meeting with the parties on 10 May in order to progress with the negotiations concerning the application of the court's rulings.

C. The Committee's conclusions

1. 64. As regards the dismissal of 155 workers of the Municipality of Neiva as part of a restructuring exercise, the Committee had considered that the collective agreement which guaranteed stability of employment of the unionized workers was violated and had requested reinstatement of the workers concerned and, if this was not practical, requested the Government to take steps to ensure that the workers received full compensation without delay (see 319th Report, para. 152). In this respect, the Committee notes with interest that the Constitutional Court has ordered compensation to be paid to the 14 union officers dismissed, and that the municipal authorities are willing to give priority to the workers dismissed during restructuring in recruitment for any posts it might establish or in any enterprises with which it may contract in future. As regards the workers who were not union officers, the Committee notes that according to the Government, given that the judicial authorities have rejected the reinstatement of 110 workers (only four workers have claims still pending before the courts) it is not within the remit of the Government to agree or not to agree to reinstatement or payment of the compensation requested by the Committee, since the Government must respect decisions that have the authority of res judicata. The Committee understands the explanations put forward by the Government, but requests it to take the steps within its scope with regard to the competent authorities of the Municipality of Neiva to ensure that they pay compensation to all of the workers dismissed in violation of the collective agreement.
2. 65. As regards the dismissal of the officers of HIMAT (now INAT), the Committee notes with interest that: (1) the Minister of Labour has requested INAT to give special attention to the Committee's recommendations; (2) the judicial authority granted protection to five trade union officers; (3) the salaries due to the former trade union officers have been paid; and (4) reinstatements, retirements and readjustments of compensation are now being carried out and the Ministry has convened a meeting with the parties on 10 May 2000 in order to find solutions for the cases where reinstatement is not possible. The Committee requests the Government to confirm that the four union leaders have been reinstated and paid the compensation corresponding to the period during which they were dismissed.
3. 66. As regards the dismissal without prior judicial authorization of three union officers of SINTRAMINOBRAS during the course of restructing, the Committee notes that the judicial authority ruled in an action brought by the persons concerned that they were protected by trade union immunity but that they had not succeeded in their proceedings to obtain reinstatement for reasons of national case law. In this respect, the Committee emphasizes the advisability in restructuring programmes by the State of giving priority to workers' representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection (see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 961). The Committee considers that it should be possible for dismissed trade union officials to have recourse to an investigation if they allege that their dismissal was due to their status or union activities; in this manner it may be determined with certainty whether the dismissals in question occurred as part of general measures which affected them to the same extent as other workers.
4. 67. Finally, the Committee observes that the organizations CUT - Huila Section and UTRADEC have presented new allegations in communications dated 29 November and 1 December 1999 and 6 January, 5 April and 1 May 2000 which have been transmitted to the Government for its comments. Considering the recent date of these allegations and the partial reply from the Government, the Committee is not in a position to examine them in this report.

The Committee's recommendations

1. 68. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the steps within its scope with regard to the competent authorities of the Municipality of Neiva to ensure that they pay compensation to all of the workers dismissed in violation of the collective agreement.
   • (b) The Committee requests the Government to confirm that it has reinstated the five union officers of HIMAT (now INAT) and that they have been paid the compensation corresponding to the period during which they were dismissed.
   • (c) Lastly, the Committee requests the Government to send detailed observations on the recent new allegations presented by the complainant organizations.