Effect given to the recommendations of the committee and the Governing Body - Report No 348, November 2007

Case No 2151 (Colombia) - Complaint date: 09-JUL-01 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 67. The Committee lasted examined this case at its meeting in March 2007 [see 344th Report of the Committee, paras 51–56]. On that occasion, the Committee made the following recommendations on the matters that were still pending, to which the Government replied in communications of 9 April, 4, 9 and 25 July 2007; the Government also refers to other matters which have already been examined.
2. 68. The Committee asked the Government to provide information on the outcome of the proceedings pending before the Council of State concerning the legality of Decree No. 1919, which suspended certain advantages in respect of wages and benefits that were provided for in collective agreements. The Committee notes the copy of the ruling of 19 May 2005 handed down by the Council of State in which it declares the decree to be legal. According to the ruling, the situation was governed by other decrees (Nos 1133 and 1808 of 1994), provisions of equal standing to that in question. Furthermore, Decree No. 1919 respected the acquired rights of public employees, who failed to demonstrate, according to the ruling of the Council of State, how it worsened their situation. On the contrary, according to the judicial authority, the decree had a beneficial effect. The Committee notes this information.
3. 69. With regard to the dismissal of Jorge Eliécer Carrillo Espinosa, President of the Union of Workers of the Social Welfare Fund of Cundinamarca (SINDECAPRECUNDI), the Committee noted the Government’s communication stating that in line with the ruling of 20 November 1998 by the Administrative Court of Cundinamarca “the established procedure for the dismissal of a public employee was fully observed, so it cannot be claimed that any rules or regulations were violated or ignored; however, it should be emphasized that, whilst the rules set out in the Substantive Labour Code do not apply to public employees, and there being no requirement to seek the jurisdictional authority’s permission for the separation of the complainant, the appropriate administrative decision should have been issued, giving the reasons why he could not be kept on”. Further on, the ruling states that the separation was due to the decree dismissing the staff of the Social Welfare Fund of Cundinamarca. The Committee notes the new communication of the Workers’ Confederation of Colombia (CTC) in which it states that the entity Convida replacing the Social Welfare Fund refuses to reinstate Mr Jorge Eliécer Carrillo Espinosa. The Committee also notes the information provided by the Government to the effect that at the time of the dismissal it was not considered necessary to waiver trade union immunity when dealing with public employees given that the Labour Code, and consequently section 405 of that code, did not apply to them. This decision was corroborated by the Administrative Court of Cundinamarca and the Council of State. Subsequently Act No. 362 of 1997 was issued, stating that in order for a public employee to be dismissed his/her trade union immunity must first be waived. However, such legislation cannot be applied retroactively. The Committee notes this information.
4. 70. With regard to the dismissal of members of the executive board of the Union of Official Workers of Cundinamarca (SINTRACUNDI) without waiver of their trade union immunity, the Government indicates that the workers were not dismissed unilaterally; rather, the employment relationship was terminated by mutual agreement, in accordance with the provisions of article 47(D) of Decree No. 2127 of 1945, the corresponding conciliation report having been duly signed. However, the Committee notes the communication of the General Labour Confederation (CGT) of 5 June 2007 in which it alleges that section 3 of Ordinance No. 01 of 1996 providing for voluntary retirement was declared null and void by the Administrative Tribunal in February 2000, a ruling upheld by the Council of State on 4 April 2002. The complainant organization alleges that in light of this judicial ruling the conciliation report signed by the workers affiliated to SINTRACUNDI is null and void. The Committee notes this information. The Committee notes, however, that an examination of the documents transmitted by the Government shows that the Constitutional Court issued a ruling in this regard in ruling T809 of 2005 in which it examined the restructuring process, as did the Labour Appeal Chamber of the Supreme Court of Justice, which, like the Constitutional Court, was of the opinion that the conciliation process was valid, in light of the fact that consent was freely given. The Committee notes this information.
5. 71. As to the allegations presented by the CGT concerning the Tolima Department (involving restructuring and collective dismissals and covered in a previous examination of this case) [see 330th Report of the Committee], according to which the immunity of the trade union leaders was not waived and complaints lodged with the judicial authorities have not achieved their reinstatement, the Committee notes that the Government states that this was a case of voluntary retirement established under Conventional Agreement No. 1 signed between the Governor and the negotiating committee of the Union of Workers of Tolima (SINTRATOLIMA) and that as a consequence the contracts of the unionized workers were terminated as the result of a mutual agreement. The Government sends a copy of the agreement.
6. 72. In its communication of 6 October 2006 (effectively received on 18 June 2007), the National Union of Public Servants of the State of Colombia (SINTRAESTATALES) alleges that following the constitution of the trade union organization in 1996, the Governor of Cundinamarca Department proceeded to dismiss the members of the national executive board (Luz Mary Cediel Contreras, Héctor de Jesús Ordóñez Caicedo, Myriam Yolanda Rojas Mafla), the executive board of Cundinamarca (Fabio Hernando Pastor Pastor, Edgar Tarazona, Luz Dary Ramirez Forero, Carlos Vargas Rincón, Edgar Orlando Mora Alvarez, Carlos Enrique Barrera Cubillos, Yolanda Rojas) and members of the claims committee (María Gloria Castiblanco Hurtado and Benicio Sánchez Peñaloza). These workers initiated legal actions with varying outcomes. In the case of Héctor de Jesús Ordoñez Caicedo, Edgar Orlando Mora Alvarez and Carlos Enrique Barrera Cubillos, the decisions were favourable, while the other trade union leaders were refused reinstatement. The Committee regrets that the Government has not sent its observations in this regard. However, it should be pointed out that more than 11 years have passed and that during that time a process of restructuring was carried out within the public entity which was examined by the Committee on a previous occasion [see 338th Report, paras 126 and ff]. Under these conditions, the Committee is of the opinion that, although the complaints examination procedure contains no formal rules determining a particular period concerning prescription, a Government may find it difficult, if not impossible, to respond in detail to allegations concerning events which occurred a long time ago, in particular taking into consideration the restructuring process which took place in the interim. Under these conditions, the Committee will not pursue its examination of this allegation.