Definitive Report - Report No 337, June 2005

Case No 2331 (Colombia) - Complaint date: 12-MAR-04 - Closed

Allegations: The complainant organization FENASINTRAP alleges that the arbitral awards handed down following the denunciation of the collective agreements in force by the Department of Antioquia, METROSALUD and the Municipality of Itagüí took account, not only of the lists of grievances presented by the workers but also denunciations by the employers, even in cases where these denunciations were not accepted by the workers. For its part, the trade union organization ASMETROSALUD alleges that the enterprise METROSALUD refused to enter into a collective bargaining process with the trade union, alleging failure to give effect to Conventions Nos. 151 and 154, ratified by Colombia

552. The complaint is contained in a communication from the Federation of Workers’ Unions in Public Undertakings (FENASINTRAP) dated 12 March 2004 and in a communication from the Association of Workers and Employees of the State Social Enterprise METROSALUD (ASMETROSALUD) dated 15 July 2004.

1. 553. The Government sent its observations in communications dated 28 January and 9 March 2005. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 554. In its communication dated 12 March 2004, FENASINTRAP made the following allegations.
2. Trade Union of Workers and Employees
3. of the Department of Antioquia
4. 555. On 23 December 1998, there was a partial denunciation of the collective agreement in force until 31 December 1998 by the chairman of the Trade Union of Workers and Employees of the Department of Antioquia, with regard to the duration of the agreement, salaries, assistance for studying, the housing fund and assistance regarding the running of the headquarters. The trade union stated that “those articles, clauses, paragraphs, items, sub-headings and subparagraphs not affected by the denunciation, shall obviously continue to remain in force and shall not be a source of conflict. That is to say, they shall not be discussed as a part of the dispute”. The list of grievances, consisting of 16 points, was submitted by the trade union on 28 December 1998. The direct settlement stage to resolve the economic dispute began on 5 January 1999 ending on 24 January 1999 with no agreement being reached between the parties. According to the minutes signed by the parties, the representatives of the Department of Antioquia were only willing to discuss other points contained in the denunciation by the Department, a position considered unacceptable by the trade union organization.
5. 556. Through Ruling No. 0525 of 26 March 1999, the Ministry of Labour and Social Security ordered the establishment of a Compulsory Arbitration Tribunal in order to settle the dispute. The Tribunal was established on 26 May 1999 and summoned the parties to attend a hearing held on 1 June of the same year. Only the representatives of the Department of Antioquia attended this hearing, stating that they wished to make the Tribunal aware of the details of the denunciation by the Department. The abovementioned denunciation referred to the following points: old-age pensions, social security, promotion, travel expenses, replacement of employees due to the death of workers and payment of school fees of workers’ children. On 11 June the Tribunal decided it was competent to hear the denunciation by the Department of Antioquia. The member of the Compulsory Arbitration Tribunal representing the workers did not support this decision, considering that the denunciation was not presented within the deadline set in accordance with article 478 of the Substantive Labour Code. As to the points contained in the denunciation presented by the trade union, the Compulsory Arbitration Tribunal accepted some, reducing them and rejected others. Finally, the Arbitration Tribunal issued an award dated 24 June with regard to the points related to: duration of the award, salary increases, the housing fund and loans, assistance for the running of the trade union headquarters and assistance concerning legal advice, assistance for studying. As to the denunciation by the Department of Antioquia, the Tribunal decided to repeal the clause in the agreement regarding sanctions and disciplinary procedures, with Law No. 200 of 1995, governing such matters in the future and, as to pensions, the Tribunal ruled that the General Pensions Regime established under Law No. 100 of 1993 should apply to those official workers who begin work following the execution of the award.
6. 557. The complainant organization states that both it and the Department of Antioquia lodged appeals against the arbitral award: the trade union for extemporaneous and incomplete presentation of the denunciation to the trade union and because the constitutional and legal orders do not allow the employer to bring about a collective labour dispute through the denunciation of a collective agreement. For its part, the Department of Antioquia requested that the health and pensions issues should be resolved. On 14 September 1999, the Supreme Court of Justice ruled that the case should be sent back before the Compulsory Arbitration Tribunal which, on 24 June 1999, issued a ruling on the health and pensions issues without taking into account the arguments put forward by the trade union stating that the denunciation of the collective agreement by the employer could not give rise to the collective dispute and that the Tribunal could only consider the points related to the denunciation by the Department when the parties coincided with regard to the points in the denunciations by both parties, or when the trade union agreed to discuss the points put forward by the Department during the direct settlement stage, scenarios which did not arise in this case. According to the complainant organization, the Supreme Court of Justice did not rule in accordance with the so-called “traditionalist” approach that it had maintained for a long time, instead it adopted a new stance.
7. Trade Union of Official Workers of
8. METROSALUD (SINTRAOMMED)
9. 558. FENASINTRAP alleges that the Trade Union of Official Workers of METROSALUD (SINTRAOMMED) presented a list of grievances on 17 December 1998, which did not include any points on health and pensions. For its part, the enterprise METROSALUD presented the denunciation of the collective labour agreement on 31 December 1998, with the aim of amending, revising and deleting various clauses of the agreement in order to bring them into line with Law No. 100 of 1993 on pensions. On 16 April 1999, the enterprise submitted a general formula for settling the labour dispute, one of the most noteworthy elements of which is the establishment of a complementary health fund and the bringing into line of the pensions regime with Law No. 100, due to apply to workers from January 2001.
10. 559. For its part, on 15 April the trade union presented a proposal consisting of points that were, in essence, identical to those contained in the list of grievances of 17 December 1998, but with lower economic demands. However, METROSALUD continued to insist on the revision, amendment and deletion of the clauses contained in the agreement that were related to those health and pensions issues that were not contained in the list of grievances presented by SINTRAOMMED and that had not been accepted by SINTRAOMMED at the direct settlement stage. When the two sides failed to reach any agreement and the direct settlement stage was exhausted, the Ministry of Labour and Social Security convened an arbitration tribunal to settle the dispute. This Tribunal first sat during a public hearing on 12 November 1999, during which the representatives of the trade union opposed discussion of the points presented by the enterprise. Despite this, on 18 November 1999, the Arbitration Tribunal decided to address both the list of grievances presented by the trade union organization and the denunciation presented by the enterprise, as, in accordance with the new Supreme Court of Justice jurisprudence, the Tribunal was now competent to do so.
11. 560. Thus, the Tribunal issued an arbitral award dated 6 December 1999, allowing the amendment of provisions related to health and the pensions system. The trade union organization lodged an appeal against the arbitral award in its entirety due to the fact that, in the award, the arbitrators accepted all the enterprise’s demands, cancelling workers’ rights included under the agreement, despite the fact that the clauses containing these rights had neither been discussed at the direct settlement stage, nor included in the list of grievances.
12. 561. FENASINTRAP states that, on 17 March 2001, the Supreme Court of Justice ruled against the appeal, therefore upholding the arbitral award, stating that its traditional position on the formalities surrounding the denunciation by an employer of a collective agreement and the competence of arbitration tribunals had changed in that it now allowed the Arbitration Tribunal to examine the content of the denunciation made by the employer and taking into account the fact that the Substantive Labour Code does not establish explicit and definitive rules with regard to all aspects of the issue. Thus, the Labour Division of the Court ruled that compliance with Law No. 100 of 1993 was compulsory and that collective labour agreements should be brought into line with the abovementioned law even on occasions when the denunciation of the respective clauses originated with the enterprise.
13. Trade Union of Workers of the Municipality
14. of Itagüí (SINTRAMITA)
15. 562. FENASINTRAP states that the Trade Union of Workers of the Municipality of Itagüí (SINTRAMITA) presented a list of grievances on 3 November 1998 to the Municipality of Itagüí, after having made a denunciation of the collective agreement. On the same day, the Municipality made a denunciation of the collective agreement. The direct settlement stage began on 10 November but the parties did not come to an agreement, for which reason the Ministry of Labour and Social Security convened an arbitration tribunal to settle the dispute.
16. 563. FENASINTRAP states that, on 1 September 2001, the Tribunal issued an arbitral award which was opposed by one of the arbitrators who felt that the employer’s denunciation should have been rejected for not displaying the criteria required for its reviewal, which are: blatant unfairness, drastic and evident change to economic and social factors, or a serious and evident threat to the survival of the enterprise, the source of work and the continuation of its essential activities, and that this implied a denial of workers’ rights set out in the agreement such as: old age pensions, leave for urgent reasons, the sale of cement and job security.
17. 564. The trade union, SINTRAMITA, lodged an appeal against the arbitral award and the Supreme Court accepted the trade union’s arguments with regard to job security, but rejected those concerning the sale of cement, leave owing to urgent reasons and the pensions regime, in accordance with recent case law.
18. 565. FENASINTRAP states in general that the collective bargaining process in Colombia is set against the wider background of collective labour disputes that begin with the presentation of a list of grievances by the trade union. The content of the dispute is set by the trade union. Although the denunciation of a collective agreement that is in force may be carried out both by the employer and by the trade union organization, according to the complainant organization, the list of grievances that determines the scope of the collective dispute may only be presented by the trade union. Once the list of grievances has been presented, the collective bargaining process begins with the direct settlement stage in which, through dialogue, the parties may put an end to the dispute by signing a collective agreement. Should the parties not reach an agreement, the workers may have recourse to strike action or request the establishment of an arbitration tribunal. The rulings of such tribunals are subject to legal checks and balances in the form of appeal against an arbitral award before the Supreme Court of Justice, the Labour Annulment Division in the case of disputes within public enterprises, or before the Superior Court of the Judicial District in the case of disputes in all other enterprises.
19. 566. The Supreme Court of Justice previously maintained a so-called “traditionalist” approach, as a part of which it considered that the arbitrators should only resolve collective labour disputes with regard to the points of disagreement, that is to say the contents of the list of grievances and those points that the workers might have accepted to discuss during the direct settlement stage. Points contained in the denunciation by the employer could only be considered by the Tribunal in those cases where they coincided with the contents of the list of grievances.
20. 567. The complainant organization states that, from 1993, following the introduction of Law No. 100 on pensions, the Court altered its traditional stance, for the first time accepting that arbitration tribunals should revise those clauses concerning pensions even when such a revision had not appeared on the list of grievances but was a part of the denunciation by the employer. In time, the arbitration tribunals’ power to examine was extended to issues other than those concerning pensions, brought up in the employers’ denunciations.
21. 568. In its communication dated 15 July 2004, ASMETROSALUD states that it is a trade union organization, established on 16 March 2001, with the aim of protecting the workers from the administration’s threat to liquidate the enterprise. It adds that it is made up of public employees from all the health sector occupational organizations active within METROSALUD, that is to say: the Colombian Medical Trade Union Association (ASMEDAS), Antioquia Branch; the Colombian National Association of Nurses (ANEC); the National Association of Qualified Nurses (ANDEC); and the Association of Qualified Bacteriologists (ASBAS).
22. 569. ASMETROSALUD states that three trade union organizations are active within METROSALUD: SINTRAOMMED, the Association of Environmental Health Employees (ASAESA) and ASMETROSALUD.
23. 570. On 13 December 2001, ASMETROSALUD presented a list of grievances. On 20 December, the enterprise sent a memorandum to the trade union organization stating that, in accordance with article 416 of the Substantive Labour Code, public employees may not present lists of grievances and although ILO Conventions Nos. 151 and 154 had been ratified by the Government of Colombia, they had not been given effect. The complainant organization states that, faced with the refusal on the part of the enterprise to negotiate, it filed a complaint for failure to respect the procedure before the Ministry of Labour and Social Security, with the aim of forcing the employer to the negotiating table. However, this action did not result in a ruling being issued by the Ministry.
24. 571. ASMETROSALUD adds that, in February of 2002, SINTRAOMMED, another active trade union organization within the enterprise, presented a list of grievances. Faced with two parallel lists of grievances, the authorities of the enterprise requested legal advice from the legal adviser of the Ministry of Labour and Social Security as to how to go about negotiating with each of the trade unions. On 12 March 2002, the legal adviser gave an opinion stating that, in the case of public employees, as there was no existing bargaining procedure, the same rules that had been applied in similar cases should be applied in a parallel fashion and that within an entity where two minority unions are active it is possible to negotiate with both in order to establish a single collective agreement which takes account of both lists of grievances. The complainant organization states that the board of directors of the enterprise has not, as yet, acted upon this opinion.
25. B. The Government’s reply
26. 572. In its communication dated 28 January 2005, the Government responds in a general manner to the allegations presented by FENASINTRAP. The Government states that, taking into account the fact that this denunciation is related to the rulings handed down by the Honourable Supreme Court of Justice, Labour Annulment Division, on the exercise of trade union activities and the right to collective bargaining, it is as well to make the position of the abovementioned corporation clear, in accordance with the information provided by the President of the Labour Annulment Division.
27. 573. Firstly, it is important to remember that the decisions adopted by the Supreme Court of Justice with regard to the right to collective bargaining are based on the principle of equality, in accordance with article 13 of the Political Constitution, in line with article 55 of the Charter currently in force which guarantees the right to collective bargaining in order to regulate labour relations, bar the exceptions laid down in law.
28. 574. The Government stresses that the rulings referred to in this case guarantee, in accordance with existing standards, the right to collective bargaining within a framework of equality between the trade union and the employer, it being the duty of the State to encourage cooperation or agreement across the board in order to find an amicable solution to the dispute, without neglecting the economic balance existing between the parties to the agreement. In order to make things clearer, the Government sends transcriptions of certain chapters of rulings issued by the Supreme Court of Justice.
29. 575. Thus, a ruling dated 27 March 1969, on the appeal lodged by both parties against the arbitral award handed down on 9 June 1967 by the Arbitration Tribunal, which settled the collective labour dispute which arose between the Union of Workers of the National Coffee Growers Federation (SINTRAFEC) and the National Federation of Coffee Growers and Coffee Warehouses SA (ALMACAFE) and its enterprises:
30. … Given that the alleged indefinite duration of the collective agreement would not only contravene the principles expressed but would also violate the very text of the Constitution, if the law truly does not set out a specific procedure for dealing with the employer’s denunciation, then the most sensible approach would be to accept the existence of a legal vacuum and that it falls upon the authority interpreting the law to overcome this problem by applying the abstract principles put forward by the same legislation to this effect. Article 481 of the Colombian Judicial Code forbids the judge from refusing to issue a ruling on a case brought before him/her, making it compulsory for a ruling to be issued, it therefore being implicit that the judge shall fill any gaps and resolve any apparent contradictions that the applicable provisions may contain. Although article 14 of Decree No. 616 grants the employer the right to unilaterally denounce the agreement, encouraging with this denunciation a decision on the points to which the denunciation refers, but, the means by which this aim may be achieved not having been defined, this is an incomplete standard and, if it is to have the intended effect, then the authority interpreting the law must refer to the provisions that the law states must be taken into account in such cases.
31. … Equity, simply as a reasoning or moral value, does not form a part of the decisions of judges; rather the resolution of disputes on this basis is reserved to adjudicators ruling in equity according to their reasoning, as in the case of arbitration tribunals. However, equity becomes a criterion that a judge should apply for the interpretation of the law and legal matters when the fair resolution of the case in question does not strictly correspond to the abstract or absolute rule under written law, in order to maintain or re-establish the balance or equality that the law has aimed to maintain between the parties; this is manifested among other things in labour cases, in the regime of collective agreement – making which compensates for the inequality between worker and enterprise. The aim of the agreement is to make up for the worker’s lack of freedom to conclude an individual agreement with the employer, due to his/her economically weak position and to place both parties in a situation of equality in order to set the general terms and conditions of employment. Given the above, it is clear that, as all labour disputes originate from the natural desire of the labour sector to amend existing law in order to improve conditions of employment beyond the levels set by existing laws or agreements, anything related to this amendment is the exclusive competence of the adjudicators, falling within the scope of the reasoning and moral values of those who are charged with settling conflicts of interest; however, this is not the case when dealing with matters linked to the maintenance of the balance of the economic interests of those between whom the dispute has arisen, because the preservation of this balance involves not only a conflict of interests but a legal issue as well, i.e. the preservation of a legal order deemed to be an indispensable element of “social equilibrium”; hence the concept of equity must also be applied by judges.
32. … Denunciation of the agreement is in accordance with this need to maintain a balance; given that the equality of the parties linked through professional association is provided for by the law, this equality would be destroyed if one party was granted a concession not granted to the other party, thus obliging the business sector to bear an indefinite rise in wage and benefit levels which, in the long term, could endanger the very existence of the enterprise. Thus, denunciation of the agreement by the employer cannot be considered to be an abrupt divergence from the Colombian legal order – as suggested by the legal challenge – on the contrary, it is backed up by exceptions found within doctrinal and legislative precedents …
33. It being an indisputable fact that written law accepts the denunciation of the agreement by the employer and that this denunciation is based on the type of labour dispute which must be settled through the conclusion of a new agreement in accordance with Articles 478 and 479 of the Substantive Labour Code, and it being understood that workers’ and employers’ associations must be on a par, for which reason they are treated equally, the granting of legal instruments ensuring that one party receives this treatment whilst the other does not, would constitute a betrayal of the equitable way in which employer-worker relations should be coordinated in order to ensure that conflicts of interest do not upset the balance between professional associations as set out by the law.
34. 576. In turn, in the ruling of 8 July 1996 in File No. 8989, it is stated that:
35. … We need to take account of the fact that the ruling of the Compulsory Arbitration Tribunal convened to settle a labour dispute is characterized by the fact that it should be equitable and not subject to the strict application of legal arguments.
36. … In accordance with article 479 of the Substantive Labour Code, amended by article 14 of Legislative Decree No. 616 of 1954, this Division has reiterated the doctrine that denunciation of the collective agreement constitutes a right for those parties signatories to the agreement, a right expressed through the written desire to terminate the agreement, addressed to the other party and communicated through the Ministry of Labour.
37. … It should be emphasized that collective bargaining performs a regulatory function with regard to labour relations and follows the course of achieving the obligation of a peaceful resolution to labour disputes assigned to it by the legal texts in force, if it develops in a fluid and flexible fashion and in perfect harmony with the rights and duties bestowed upon the parties by the law in order to guarantee the equality of the antagonists during the dispute. Attempts to gain an advantage by claiming rights that the law does not bestow only serve to bring the dispute back to its original state, radically and undesirably polarizing the parties, who will fall back into entrenched positions, refusing to listen to each others’ proposals, defending, rather, their own preconceived ideas …
38. … When the agreement in force has been denounced by the employer, jurisprudence has specified the cases in which normally an arbitral award should be sought on the points referred to by the denunciation, limiting them to those which may have given rise to conflict during the direct settlement stage, but jurisprudence also indicates that “it is not legally acceptable to state that employers cannot denounce a collective labour agreement because this is contrary to what is sustained by law, in accordance with the ruling of 29 October 1982, File No. 9120, neither is it legally acceptable for the parties or the Arbitration Tribunal to vary the conditions previously agreed on and which have been legally denounced” (ruling of 17 October 1991). Naturally, regarding this final aspect, adds the Division, such a possibility is the exception and not the rule.
39. 577. The Government stresses that, taking into account the abovementioned precedents, that the previous case law has had visible effects on the denunciation of the collective agreement by the employer, taking into account the fact that this is an essential right of all parties involved in concluding a collective agreement, a process which involves negotiation of conditions which govern the labour contracts of those workers affected by the collective bargaining process. In this respect, although the employer may not give rise to the collective dispute through the denunciation of the agreement or covenant, the employer is certainly aided by the right to link his/her concerns to the development of that dispute and to have his/her hopes and arguments heard by the other party in a reasonable fashion so that a bilateral, or, sometimes, multilateral dialogue develops, as should be the case with a contractual relationship.
40. 578. As to the functions of the Supreme Court of Justice, the Government states that it examines arbitral awards for irregularities, taking into account the minimum conditions of employment laid down by the law and those stipulated in standards in force and the scope granted to the decision-making power of the arbitrators by the denunciation of the agreement, examining the nature of the dispute, whether the direct settlement or conciliation stages have been complied with, whether the Tribunal was established in accordance with the law, whether it is operating as it should, whether it has issued a ruling within the respective terms and on the relevant issue. In conclusion, the Supreme Court of Justice, Labour Division, examines whether the award is in accordance with the Political Constitution, the law and the relevant agreements, checking that the constitutional rights of the parties have not been violated owing to an absolute lack of material reasons or due to the unfounded and obvious non-recognition of such rights.
41. 579. The Government recalls that the Committee on Freedom of Association has repeatedly stated that “When the Committee requests a government to furnish records of judicial proceedings, such a request does not reflect in any way on the integrity or independence of the judiciary.” The Government and the Committee on Freedom of Association both consider that a solid, independent judicial system is an essential component of the democratic system and is fundamental in guaranteeing the freedom and independence of the trade union movement. In this respect, the Government supports the Committee’s statement that “The very essence of judicial procedure is that its results are known, and confidence in its impartiality rests on their being known”, a knowledge guaranteed by the public information services of the Colombian judicial system and by the information that the Government provides to the Committee on the Freedom of Information. The Government agrees with the Committee in that “whereas the latter considers it within its mandate to examine the laws, including those interpreted by the high courts, the fact that the judicial system issues rulings that are not to the liking of the workers or workers organizations because they do not satisfy their interests or requests, or because they differ from the workers’ or workers’ organizations’ interpretation of the standards in force, does not constitute a valid reason for calling for an inquiry into the integrity and rulings of the judicial system, as well as the institution itself. The Government rejects such an inquiry or procedure. If the intention is to convert the Committee on Freedom of Association into a body that will replace the judicial system when the latter issues unpopular decisions, then the Government firmly and without hesitation rejects this stance which, should it become common practice, would, paradoxically, have the immediate consequence of above all weakening the judicial system with regard to freedom of association in Colombia.
42. 580. Based on this premise, the Government provides a consistent response through several rulings of the Supreme Court of Justice on the issue, with the sole aim of illustrating the current case law on the issue and the essential points on which it is based to the Committee and the Governing Body. The only route through which the Government encourages dialogue regarding the judicial system is through actions aimed at strengthening the Colombian judicial system through the empowerment and training of judges and magistrates, which is carried out within the framework of the special technical cooperation programme with the ILO, as such a framework of cooperation does not involve subjecting the Colombian judicial system to an inquiry.
43. 581. As to the allegations presented by ASMETROSALUD concerning the refusal by the enterprise METROSALUD to enter the collective bargaining process, the Government states that the judicial system governing public servants accepts two scenarios: one being the case of public employees of the executive branch, which is legal and statutory in nature and the other being that of official workers, which is contractual in nature. Basically, public employees’ employment relationships are governed by the law or by valid regulations that may only be amended by laws and regulations of equal standing. The main difference between the two scenarios is that, with contractual arrangements, it is possible to negotiate over the conditions of service and the amendment of the corresponding benefits, with regard to increases, following a unilateral decision on the part of the employer or through collective labour agreements.
44. 582. Thus, under the terms of article 414 of the Substantive Labour Code, freedom of association is extended to workers throughout the official services, with the exception of members of the national army and of the police force and any police body. However, trade unions representing public employees only carry out the following functions: (i) studying the characteristics of the relevant profession and the conditions of employment of its members; (ii) advising its members on the defence of their rights as public employees, particularly in the case of the administrative service; (iii) representing the common or general economic interests of the members, or of the relevant profession before the authorities; and (iv) submitting appropriate written representations to the relevant heads of administration.
45. 583. For the authorities, and in particular the hierarchical superiors of the members, the functions referred to in the last two items represent a corresponding duty to receive trade union representatives appropriately and to find an appropriate solution to their requests (article 415 of the Substantive Labour Code (CST)).
46. 584. The Constitutional Court found the prohibition imposed by article 416 of the Substantive Labour Code on public employee trade unions presenting lists of grievances or concluding collective agreements to be legitimate, as stated in Ruling C-110 of 10 March 1994 which states that it may be applied. This restriction is supported by article 55 of the Constitution that guarantees the right to collective bargaining to govern employment relations except in the case of the exceptions laid out under the law.
47. 585. As to Ruling C-377 of 1998, upon reviewing the constitutionality of the Labour Relations (Public Service) Convention, 1978 (No. 151), and Law No. 411 of 1997 approving that Convention, the Court found that the different way in which official workers and public employees were viewed when dealing with the right to collective bargaining was in accordance with the Constitution, stating that the former are fully entitled to this right, whilst the latter are only partially entitled to the same right, in that although they (the public employees) have the right to seek and conclude concerted settlements in the case of dispute, this does not in any way affect the authorities’ ability to unilaterally set conditions of employment.
48. 586. In Ruling C-201 of 2002, the Constitutional Court stated that “In order to determine whether these provisions are applicable in the case of trade unions of public employees, they must be brought in line with article 416 of the Substantive Labour Code which restricts the right to collective bargaining of trade unions of public employees in the sense that they are forbidden from presenting lists of grievances and concluding collective agreements, a restriction that the Court has repeatedly found to be in accordance with the Political Constitution.”
49. 587. As to the trade union organization’s statement that, when faced with the refusal by the board of directors of METROSALUD to negotiate, a complaint was lodged with the Ministry of Labour and Social Security, the Government states that the Ministry of Labour and Social Security issued Ruling No. 00979 of 28 May 2002, exonerating the state social enterprise, METROSALUD, considering that the enterprise had initiated the appropriate dialogue but suspended this dialogue owing to legal doubts as to the legality of entering into a collective bargaining process with public employees. The abovementioned ruling stood, as no legal appeal was lodged against it. As to the advice issued by the Legal Office of the then Ministry of Labour and Social Security, as referred to by the complainant organization, the Government states that compliance with this advice is not compulsory, neither does it in any way represent an obligation for the Legal Office, in accordance with the terms of article 25 of the Code for administrative litigation.
50. 588. In conclusion, the collective bargaining process involving public employees is limited. Basically, it may not touch upon conditions of employment that the Political Constitution states are the preserve of the law, as is the case with issues connected to wages, benefits, disciplinary procedures and the administrative service, amongst others.

C. The Committee’s conclusions

1. 589. The Committee notes that this case refers to: (1) allegations presented by the Federation of Workers’ Unions in Public Undertakings (FENASINTRAP) that the Colombian Supreme Court of Justice changed its criteria to allow arbitration tribunals, which are convened to settle collective disputes between workers and enterprises or public sector entities, to examine denunciations of collective agreements by employers, as well as lists of grievances presented by the workers, as a basis for issuing arbitral awards, an action which, according to the complainant organization, contravenes Convention No. 98; and (2) the allegations presented by the Association of Workers and Employees of the State Social Enterprise METROSALUD (ASMETROSALUD) that the enterprise METROSALUD refused to enter into a collective bargaining process with the trade union, arguing that effect had not been given to Conventions Nos. 151 and 154, ratified by Colombia.
2. 590. As to the allegations presented by FENASINTRAP concerning the examination by the arbitration tribunals, not only of the lists of grievances presented by the workers but also of the denunciations of the collective agreements presented by the employers during the collective disputes which arose between: the Department of Antioquia and the Trade Union of Workers and Employees of the Department of Antioquia; the enterprise METROSALUD and the Trade Union of Official Workers of METROSALUD (SINTRAOMMED); the Municipality of Itagüí and Trade Union of Workers of the Municipality of Itagüí (SINTRAMITA), the Committee notes the complainant organization’s statement that traditionally, the Colombian Supreme Court of Justice held that arbitration tribunals should base their competence regarding the issuing of arbitral awards solely on the lists of grievances presented by the workers. Denunciations by employers could only be taken into account in those cases where they coincided with the points contained in the list of grievances, or on those occasions when the workers would have accepted to discuss the points during the direct settlement stage, prior to the establishment of the Arbitration Tribunal. The Committee notes that FENASINTRAP states that owing to a change in case law at the level of the Supreme Court of Justice, currently, although the collective disputes are still only initiated by the denunciation by the workers and the subsequent presentation by them of a list of grievances, arbitration tribunals may issue their awards based not only on the lists of grievances but also on the denunciations by the employer, even in those cases where the workers are opposed to the discussion of the points contained in those denunciations. The Committee notes that according to FENASINTRAP, this radically alters the content of the collective agreements in force up until now and, in many circumstances, implies a worsening of conditions of employment and employment benefits, especially with regard to pensions and health issues.
3. 591. The Committee also notes the Government’s reply in which it stresses that the Supreme Court has competence when examining the regularity of arbitral awards, which must meet the criteria of equality and the right to participate. The Government sends transcripts of certain paragraphs of rulings concerning these matters, issued by the Supreme Court of Justice, in which the importance of allowing the parties involved to participate in the collective bargaining process and the need to treat the parties equally during discussion of the collective dispute are highlighted.
4. 592. In noting that, according to the Government’s reply and the rulings of the Supreme Court, the collective dispute may only originate from an initiative taken by the workers and taking into account the fact that, in accordance with Colombian legislation, if no denunciation of the agreement exists, then this agreement will be automatically extended by increments of six months (article 477 and related articles of the Substantive Labour Code), the Committee feels that, although once a collective dispute arises, an arbitration tribunal may take into account the points put forward by the employer even though those points have not been accepted by the workers, this fact does not contravene the principle of free and voluntary negotiation. Thus, the Committee highlights the importance of active participation by both parties in negotiation and furthermore recalls that “The opportunity which employers might have, according to the legislation, of presenting proposals for the purposes of collective bargaining – provided these proposals are merely to serve as a basis for the voluntary negotiation to which Convention No. 98 refers – cannot be considered as a violation of the principles applicable in this matter” [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, para. 849]. The Committee therefore does not consider that the new case of law of the Supreme Court violates the principles of Convention No. 98 related to free and voluntary collective bargaining.
5. 593. As to the allegations presented by ASMETROSALUD concerning the refusal by the state enterprise METROSALUD to enter into a collective bargaining process with the complainant organization, owing to the failure to give effect to Conventions Nos. 151 and 154, the Committee takes note of the information provided by the Government to the effect that public employees do not have the right to present lists of grievances in accordance with the terms of article 55 of the Political Constitution which establishes the right of workers to enter into collective bargaining processes within the limits imposed by the law and article 416 of the Substantive Labour Code which prohibits collective bargaining in the case of public employees.
6. 594. In this respect, the Committee notes that Colombia has ratified Conventions Nos. 98, 151 and 154 and that, as a consequence, public sector workers and those of the central public administration should have the right to collective bargaining. The Committee however states that, in light of Convention No. 154, in the case of collective bargaining within public administration, special modalities for application may be set. In effect, the Committee, sharing the point of view of the Committee of Experts in its General Survey of 1994, recalls that, even when the principle of the autonomy of the parties in the collective bargaining process remains valid with regard to public servants and public employees covered by Convention No. 151, this may be applied with a certain degree of flexibility given the particular characteristics of the public administration previously pointed out, whilst at the same time, the authorities should, to the greatest possible extent, promote the collective bargaining process as a mechanism for determining the conditions of employment of public servants. The Committee therefore feels that, in this case, the limits imposed on public employees with regard to the possibility of collective bargaining are not in accordance with the terms of the abovementioned Conventions, as public employees may only present “appropriate written representations” which are non-negotiable, in particular with regard to conditions of employment, which may only be determined by the authorities who have exclusive competence in this matter. The Committee therefore requests the Government to take the measures necessary to ensure that, in consultation with the trade union organizations concerned, the legislation is amended in order to bring it into line with the Conventions ratified by Colombia, so that the workers in question may have the right to collective bargaining.

The Committee's recommendations

1. 595. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • As to the refusal by the state social enterprise METROSALUD to enter into a collective bargaining process with the Association of Workers and Employees of the State Social Enterprise METROSALUD (ASMETROSALUD), the Committee requests the Government to take the measures necessary to ensure that, in consultation with the trade union organizations concerned, the legislation is amended in order to bring it into line with the Conventions ratified by Colombia, so that the workers in question may have the right to collective bargaining.