Interim Report - Report No 314, March 1999

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

Allegations: Dismissals connected with restructuring, in breach of the collective agreement

1. 78. The complaint is contained in a communication from the Single Confederation of Workers, dated 6 March 1998. This organization submitted additional information by letter of 25 August 1998. The Government responded in its communication of 15 January 1999.
2. 79. 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. 80. The Single Confederation of Workers alleges that, on 31 January 1993, the municipal authorities of Neiva (Department of Huila) illegally dismissed 155 public employees of the Public Works Office, on the pretext that the municipal administration had ordered the closure of this office with a view to its abolition. However, the CUT reports that the employer was the Municipality of Neiva and that the relevant legislation (Decree No. 2127 of 1945) does not provide for termination of employment contracts on grounds of abolition of posts; moreover, the collective agreement states that the municipal administration "has an effective commitment to guarantee the stability of employment of all unionized workers" and that in the event of unjust dismissal "the municipality shall reinstate the worker in the post occupied by him/her and shall accept to pay any remuneration and benefits that the worker has failed to receive".
2. 81. The CUT adds that, when an appeal was lodged, the judicial authorities recognized that the dismissal was illegal but that "the workers' reinstatement was not effectively possible", given the administration's prerogative to carry out restructuring by virtue of the Political Constitution and in the general interest. At the same time, the Court of Appeal states that the municipal authorities are not exonerated from paying compensation for dismissal but that such compensation was not requested and consequently not granted.
3. 82. The CUT also alleges that, when the dismissed workers appealed to the Supreme Court of Justice, that body threw out their claims, stating that "if the employer, in disregard for the law, closes, in part or in full, the enterprise and such closure results in the termination of an employment contract, it is legally inadmissible to claim reinstatement even if foreseen by law, collective agreement or accord".
4. 83. Similarly, the CUT alleges that, in various rulings, the judicial authorities disregarded the guarantees of trade union privilege accruing to the 14 leaders of the Public Employees' Trade Union of the Municipality of Neiva (dismissed without the municipal authorities of Neiva having obtained prior judicial authorization). They also rejected the appeal by ten leaders of the Public Servants and Employees' Union of the Municipality of Pitalito, who were dismissed on 19 September 1994, without that municipality having awaited a court ruling regarding prior authorization for termination -- although the case was already at the appeal stage. There was also denial of the trade union privileges of five leaders of the National Trade Union of Public Servants and Employees of the Institute of Hydrology, Meteorology and Land Development (SINALTRAHIMAT, Neiva section) in the ruling handed down by the High Court of Neiva, Chamber for Civil Labour Affairs (the leaders in question had been dismissed in August 1993 without the prior judicial authorization required by legislation).

B. The Government's reply

1. 84. In its communication of 1999, the Government states that the dismissal of the 155 employees of the Public Works Office of the Municipality of Neiva, Department of Huila, was the consequence of the municipal administration's restructuring programme consisting of the above-mentioned Office's closure which had led to the abolition of the relevant posts. As a result of these dismissals, the Regional Labour Directorate of Huila conducted an administrative inquiry into a breach of the collective agreement signed between the Public Employees' Trade Union of the Municipality of Neiva and the said municipal authorities; by resolution No. 0008, 15 April 1996, it imposed a fine upon the municipality of five minimum legal wages. The dismissed workers used all administrative channels with a view to legal action against the Municipality of Neiva for breach of the collective agreement which was in force at the time of the disputed decisions and sought forced reinstatement by the municipal authorities of the above-mentioned public servants in accordance with the terms of the collective agreement. After the Municipality of Neiva had been summoned to present its defence, the Labour Tribunal of First Instance, called upon to examine the cases, pronounced the respective judgements. As these were not favourable to the workers' claims, the dismissed workers lodged appeals with the High Court of Neiva, Chamber for Civil Labour Affairs, which threw out all of the workers' petitions. The judgement was based on the principle of an administration's prerogative to restructure, as established by the Council of State and in keeping with the Political Constitution.
2. 85. The Government adds that a group of the workers concerned lodged an appeal (extraordinary judicial appeal) with the Supreme Court of Justice (highest regular judicial body); the relevant judgement was published on 29 May 1997, which, in substance, states: "hence, the charges are unsuccessful though it is appropriate to add that the demanded reinstatement presupposes the worker's dismissal and not the body's closure which was what occurred in the present case". This judgement constitutes a final decision and must be accepted and respected by the other branches of public authority.
3. 86. The Government emphasizes that, in the case in question, there were no unjust dismissals but abolition of posts on account of the closure of the Public Works Office of the Municipality of Neiva; this decision is in compliance with the Political Constitution, article 315, No. 4.o, which authorizes local bodies to restructure and adjust to existing needs -- a norm addressed by Decree No. 16, 31 January 1993 -- as invoked by the Mayor of Neiva. The aforementioned was accepted to its fullest extent by the High Courts in judgements published by them on 23 May 1996, 28 August 1996, 29 May 1997, 19 July 1997 and 2 December 1997. Nor was there any breach of international labour Conventions ratified by Colombia, given that there is no ILO Convention or Recommendation requiring a member State to maintain obsolete, inefficient bodies which do not deliver the services required of them, on the sole grounds that trade union members work there.
4. 87. Furthermore, the Government indicates that the state authorities of Colombia may not be held liable for alleged damages which it did not create. The persons claiming to have suffered a loss were the Neiva municipal workers, and municipalities are autonomous and fundamental bodies within the political and administrative division of the State. In the light of the various judgements of the High Courts, it was possible to ascertain that acquired rights had not been disregarded. No compensation was awarded to the relevant parties, given that there were no grounds for such; this was established in the above-mentioned judgements which placed an end to judicial examination and became immutable, obliging observance by all other branches of public authority.
5. 88. In connection with the dismissal of the leaders of the Trade Union of Public Servants and Employees of the Municipality of Pitalito, the Government reports that, on 19 September 1994, legal proceedings were initiated before the Pitalito Labour Tribunal. The ruling handed down on 21 April 1995 sentenced the Municipality of Pitalito to reinstatement of the workers with protection in the same conditions of employment and to pay the wages which the workers had failed to receive in connection with their dismissal. The Municipality of Pitalito lodged an appeal against the tribunal's ruling and brought the case before the High Court of Neiva, Chamber for Civil Labour Affairs; the court reversed the ruling of the Pitalito Labour Tribunal and denied the special protection (amparo) of trade union privilege.
6. 89. Finally, the Government points out that the municipality is required to accept and respect judicial decisions regarding the issues raised in the present case and that the actions of the various branches of state authority have been in compliance with domestic law and with the requirements of ILO Conventions Nos. 87 and 98.

C. The Committee's conclusions

1. 90. The Committee observes that the present case relates to dismissals of workers or trade union leaders in the Municipality of Neiva, the municipality of Pitalito and the Institute of Hydrology, Meteorology and Land Development (Neiva section).
2. 91. With regard to the dismissal of 155 public employees (including 14 trade union leaders) in January of 1993, the Committee observes that the complainant emphasizes that the relevant dismissal constitutes a breach of legislation as well as of the collective agreement, and criticizes the criteria applied by the judicial authorities in their decision not to demand the reinstatement of the dismissed workers. The Committee takes note that the Government states that: (1) the dismissals were ordered in connection with the municipal administration's restructuring, consisting of the closure (abolition) of the Public Office in which the dismissed persons had worked; this took place by virtue of a municipal decree in compliance with the Political Constitution of the State; (2) the Regional Labour Directorate of Huila imposed a fine of five monthly minimum legal wages upon the municipality in respect of a breach of the collective agreement; (3) the judicial authorities (Court of Appeal and Supreme Court of Appeal) came out against the demand for reinstatement of the dismissed workers; and (4) no compensation was awarded to the dismissed persons. The Committee concludes that, inasmuch as the restructuring affected all workers employed by the Public Works Office (irrespective of whether they were or were not trade union members or leaders), the issue of anti-trade union discrimination does not, in principle, arise; nevertheless, there remains the question of whether an administrative unit's restructuring, leading to its closure, may be in contradiction with the employment stability of the workers concerned whenever the collective agreement generally establishes the principle of such stability. In this regard, the Committee considers that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 935). Nevertheless, the Committee has emphasized that it is important that governments consult with trade union organizations to discuss the consequences of restructuring on the employment and working conditions of employees (see Digest, op. cit., para. 937).
3. 92. The Committee observes that, according to the Government, the restructuring (abolition) of the Public Works Office was carried out by decree and notes that neither the complainants nor the Government have indicated that consultations between the parties have taken place or that attempts have been made to arrive at an agreement regarding the consequences of the restructuring (in particular with a view to relocating the workers affected, to the extent possible, in another public department). Consequently, the Committee draws the Government's attention to the principle that consultations should be held with trade union organizations on the consequences of restructuring on the employment and working conditions of employees.
4. 93. In order for the Committee to be in a position to come to conclusions on the allegations concerning the non-respect of the collective agreement in the Municipality of Neiva, it requests the Government to transmit all administrative and judicial decisions concerning this collective agreement.
5. 94. With regard to the judgement (criticized by the complainant) rejecting the reinstatement of the leaders of the Public Servants and Employees' Union of the Municipality of Pitalito, who had been dismissed on 19 September 1994, the Committee observes the Government's statement that it is bound to respect judicial decisions. The Committee observes that the District High Court, Chamber for Civil Labour Affairs, handed down a ruling on 30 July 1996 (sent by the complainant), which rejects the claim to reinstatement with the argument that, by that date, the statutory term of office of the relevant trade union leaders as well as the additional period of six months of protection provided for by legislation had already expired; consequently, they had no longer enjoyed the special protection (amparo) of trade union privilege as of 15 March 1994, it being irrelevant that the trade union had still not held new leadership elections by 19 September 1994. In these circumstances and observing that the action in question relates to problems having occurred in 1994 as well as to a relatively complex interpretation of the duration of the protection -- as laid down in the relevant legislation -- granted to trade union leaders from dismissal, and, given the particular circumstances of the case, the Committee will not pursue its examination of this allegation.
6. 95. Finally, the Committee observes that the Government has submitted no comments regarding the judgement criticized by the complainant and which rejects the reinstatement of the leaders of the National Trade Union of Public Servants and Employees of the Institute of Hydrology, Meteorology and Land Development (Neiva section), who had been dismissed in August 1993 without the prior judicial authorization provided for by legislation. Hence, the Committee urges the Government to respond to this allegation and to communicate the text of the rulings handed down in this regard.

The Committee's recommendations

1. 96. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Concerning the restructuring which led to the dismissal of 155 public employees (including 14 trade union leaders) from the Municipality of Neiva in January 1993, the Committee recalls the importance it attaches to the principle that governments consult with trade union organizations to discuss the consequences of restructuring on the employment and working conditions of employees.
   • (b) In order for the Committee to be in a position to come to conclusions on the allegations concerning the non-respect of the collective agreement in the Municipality of Neiva, it requests the Government to transmit all administrative and judicial decisions concerning this collective agreement.
   • (c) The Committee urges the Government to submit its comments in response to the allegations regarding the dismissal of the leaders of the National Trade Union of Public Servants and Employees of the Institute of Hydrology, Meteorology and Land Development and to communicate the text of the rulings handed down in that regard.