Report in which the committee requests to be kept informed of development - Report No 353, March 2009

Case No 2434 (Colombia) - Complaint date: 15-JUN-05 - Follow-up

Allegations: (1) Limitation of the right to collective bargaining by virtue of the recent adoption of Legislative Act No. 1 of 22 July 2005; (2) harassment of SINTRAPROAN founder member and official Franco Cuartas through successive disciplinary proceedings; (3) dismissal of SINTRAPROAN members Luis Carmelo Cataño Cataño, Carlos Romero Aguilar and Silvio Elías Murillo, despite their trade union immunity, and of SINTRAPROAN members Jhon Jair Silva and Jesse Moisés Gutiérrez Herrera

1. 522. The Committee last examined this case at its March 2008 meeting and presented an interim report to the Governing Body [see 349th Report, paras 614–671, approved by the Governing Body at its 301st Session].
2. 523. ATELCA submitted further information in a communication dated 26 August 2008.
3. 524. The Government sent its observations in communications dated 29 May, 5 June and 28 November 2008.
4. 525. 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), and also the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 526. In its previous examination of the case in March 2008, the Committee made the following recommendations [see 349th Report, para. 671]:
   • (a) With regard to the allegations relating to the limitation of the right to collective bargaining by virtue of the recent adoption of Legislative Act No. 01 of 22 July 2005, which amends article 48 of the Constitution on social security, the Committee:
   • (i) with regard to agreements concluded prior to the entry into force of the legislation, once again requests the Government to adopt the necessary measures to ensure that collective agreements containing pensions clauses, which are valid beyond 31 July 2010, remain in effect until their expiry date;
   • (ii) with regard to agreements concluded after the entry into force of Legislative Act No. 01, again requests the Government, in view of the particular circumstances of this case and in order to ensure harmonious industrial relations in the country, to hold new in-depth consultations on retirement and pensions, exclusively with the social partners, in order to find a solution acceptable to all the parties concerned in accordance with the Conventions on freedom of association and collective bargaining ratified by Colombia, in particular ensuring that the parties involved in collective bargaining can improve the legal provisions on retirement and pension schemes by mutual agreement.
   • (b) …
   • (c) With regard to the allegations of persecution through successive disciplinary procedures of Mr Franco Cuartas, founder member and leader of SINTRAPROAN, the Committee requests the Government to take the necessary measures to carry out without delay an independent investigation into these allegations and, if they are found to be true, to take the necessary measures to cancel the disciplinary measures taken against Mr Franco Cuartas.
   • (d) With regard to the alleged dismissal of Luis Carmelo Cataño Cataño, Carlos Romero Aguilar and Silvio Elías Murillo, despite enjoying trade union immunity, in order to be able to formulate conclusions based on all the information, the Committee requests the Government to send a copy of the judicial decisions denying the reinstatement.
   • (e) The Committee requests the Government to send its observations without delay with regard to the new allegations presented by the CGT relating to the dismissal of SINTRAPROAN members Jhon Jair Silva and Jesse Moisés Gutiérrez Herrera.

B. New allegations

1. 527. In its communication of 26 August 2008, ATELCA again refers to the limitation of the right to collective bargaining by virtue of the adoption of Legislative Act No. 01 of 22 July 2005, which amends article 48 of the Constitution relating to social security, and presents a political and legal evaluation of the situation. The communication does not mention any new circumstances or facts relating to freedom of association.

C. The Government’s reply

1. 528. In its communications of 29 May, 5 June and 28 November 2008, the Government sent the following observations.
2. 529. With regard to recommendation (a) concerning the limitation of the right to collective bargaining by virtue of the adoption of Legislative Act No. 01 of 22 July 2005, which amends article 48 of the Constitution relating to social security, and with regard to the new communication from ATELCA, the Government repeats the observations already examined by the Committee and points out that the new constitutional rule prevents it from complying with the Committee’s recommendation since the Constitution prescribes that the validity of clauses in collective agreements relating to pensions may not extend beyond 31 July 2010.
3. 530. The Government adds that, in view of the existence of a constitutional rule which prohibits any conditions other than those laid down by law from being agreed, any new consultation on the matter would give rise to false expectations among the social partners regarding constitutional reform, since the ways in which the latter may be undertaken are laid down by the Constitution itself and these do not include consultation of the people.
4. 531. With regard to recommendation (c) concerning the allegations of harassment of Mr Franco Cuartas through successive disciplinary proceedings, with respect to which the Committee requested the Government to conduct an independent investigation without delay and, if the allegations were found to be true, to quash the disciplinary measures taken against him, the Government reiterates that the Office of the Attorney-General, in accordance with section 3 of Act No. 734 of 2002, is the permanent body which has the disciplinary power to initiate, continue or refer any investigation or proceedings relating to the competence of the internal disciplinary mechanisms of public entities. One of the responsibilities of the Office of the Attorney-General is to monitor compliance with the Constitution, the law, court decisions and administrative acts. It is also responsible for high-level supervision of the official conduct of persons performing public duties, expediting the corresponding investigations and imposing the respective penalties in line with national law (article 277 of the Constitution). The Government points out that disciplinary proceedings (disciplinary investigation No. 030 123975/05) were instituted against Mr Franco Cuartas and in the context thereof an application for a declaration of nullity is pending. The Government adds that due process has been observed with respect to Mr Franco Cuartas, as provided for by article 29 of the Constitution.
5. 532. With regard to recommendation (d) concerning the alleged dismissal of Luis Carmelo Cataño Cataño, Carlos Romero Aguilar and Silvio Elías Murillo, despite their trade union immunity, the Government states that the Office of the Attorney-General sent its own observations, attaching the court rulings in the proceedings relating to the workers concerned. As regards Mr Romero Aguilar, the chief of the Human Resources Division of the Office of the Attorney-General said that his name does not appear on the list of members of SINTAPROAN committees or subcommittees and that he is currently employed as citations officer in the Caquetá Regional Prosecutor’s Office.
6. 533. As regards Silvio Elías Murillo, the said person was employed as an attorney from 1 September 2005 to 28 February 2007. The prosecutor’s office sent a copy of the ruling issued by the Quibdó District High Court confirming the first-instance court ruling which established that Mr Murillo was not covered by trade union immunity at the time of his dismissal.
7. 534. In the case of Luis Carmelo Cataño Cataño, the Fourth Labour Court of the Bogotá Circuit ruled in favour of Mr Cataño, and this decision was appealed against by the Attorney-General. The High Court of Bogotá quashed the original ruling, absolving the Office of the Attorney-General, on the grounds that Mr Cataño was not covered by trade union immunity at the time of his dismissal.
8. 535. With regard to recommendation (e) concerning the allegations brought by the CGT relating to the dismissal of SINTRAPROAN members Jhon Jair Silva and Jesse Moisés Gutiérrez Herrera, the Government indicates that the Office of the Attorney-General stated that Jhon Jair Silva commenced employment on 19 March 1996 as a grade 9 security officer in the Medellín security section and is currently employed as a grade 15 investigations officer in the National Directorate of Special Investigations, Antioquia section.
9. 536. With regard to Jesse Moisés Gutiérrez Herrera, the said person was employed at the Office of the Attorney-General on a temporary basis from 1 September 2005 to 28 February 2007, when he was informed of the non-renewal and consequent expiry of his appointment. Mr Gutiérrez Herrera was not covered by trade union immunity, as certified by the Human Resources Division of the Office of the Attorney-General.

D. The Committee’s conclusions

1. 537. The Committee notes the additional information presented by ATELCA and the observations sent by the Government with respect to the matters which remain pending.
2. 538. With regard to recommendation (a) concerning the limitation of the right to collective bargaining by virtue of the adoption of Legislative Act No. 01 of 22 July 2005, which amends article 48 of the Constitution relating to social security and consequently limits the right to free and voluntary collective bargaining, the Committee observes that the additional information sent by ATELCA does not contain any new particulars regarding freedom of association and that the Government in its reply repeats the observations previously examined by the Committee. Under these circumstances, the Committee, observing that it has already stated its views with regard to the substance of these allegations, and recognizing that constitutional amendments would be required to give effect to the Committee’s recommendations, wishes to reiterate its previous recommendations, remain fully valid notwithstanding these difficulties.
   • (i) with regard to agreements concluded prior to the entry into force of the legislation, the Committee once again requests the Government to adopt the necessary measures to ensure that collective agreements containing pensions clauses which are valid beyond 31 July 2010 remain in effect until their expiry date;
   • (ii) with regard to agreements concluded after the entry into force of Legislative Act No. 01, the Committee again requests the Government, in view of the particular circumstances of this case and in order to ensure harmonious industrial relations in the country, to hold new in-depth consultations on retirement and pensions, exclusively with the social partners, in order to find a solution acceptable to all the parties concerned in accordance with the Conventions on freedom of association and collective bargaining ratified by Colombia, in particular ensuring that the parties involved in collective bargaining can improve the legal provisions on retirement and pension schemes by mutual agreement. The Committee requests the Government to keep it informed of any further developments in this respect.
3. 539. With regard to recommendation (c) regarding the alleged harassment of SINTRAPROAN founder member and official Mr Franco Cuartas through successive disciplinary proceedings, the Committee recalls that it requested the Government to take the necessary steps to conduct an independent investigation into these allegations without delay and, if they were found to be true, to take the necessary steps to quash the disciplinary measures taken against Mr Franco Cuartas. The Committee notes the Government’s statement to the effect that: (1) the Office of the Attorney-General is the permanent body which has the disciplinary power to initiate, continue or refer any investigation or proceedings relating to the competence of the internal disciplinary mechanisms of public entities; (2) disciplinary proceedings (disciplinary investigation No. 030 123975/05) were instituted against Mr Franco Cuartas and in the context thereof an application for a declaration of invalidity is pending and (3) due process has been observed, as provided for by article 29 of the Constitution.
4. 540. In this regard, the Committee recalls that the previous examination of the case shows that Mr Franco Cuartas was employed as an attorney and was a founder member and official of SINTRAPROAN. The Government stated that in view of the fact that Mr Franco Cuartas did not fulfil the obligations corresponding to his post, disciplinary proceedings were instituted and he was consequently obliged to resign from his post. In order to be able to determine the exact sequence of events and the grounds for the disciplinary proceedings instituted against Mr Franco Cuartas a few years ago, the Committee requests the Government, in the particular circumstances of this case, to inform it of the outcome of the nullity proceedings brought by Mr Franco Cuartas in respect of the circumstances which led to his resignation and, if the allegations are proven true, to take the necessary steps for his reinstatement.
5. 541. With regard to recommendation (d) concerning the alleged dismissal of Luis Carmelo Cataño Cataño, Carlos Romero Aguilar and Silvio Elías Murillo despite their trade union immunity, the Committee notes that the Government has forwarded the information supplied by the Office of the Attorney-General including the rulings in the court proceedings relating to the workers concerned. The Committee notes that: (1) Mr Romero Aguilar’s name does not appear on the list of members of SINTAPROAN committees or subcommittees and is currently employed as citations officer in the Caquetá regional prosecutor’s office; (2) Mr Silvio Elías Murillo was employed as an attorney from 1 September 2005 to 28 February 2007 and the Quibdó District High Court confirmed the first-instance court ruling which established that Mr Murillo was not covered by trade union immunity at the time of his dismissal; (3) the Fourth Labour Court of the Bogotá Circuit ruled in favour of Mr Cataño, a decision which was quashed by the High Court of Bogotá on the grounds that Mr Cataño was not covered by trade union immunity at the time of his dismissal. The Committee notes this information.
6. 542. With regard to recommendation (e) relating to the allegations brought by the CGT concerning the dismissal of SINTRAPROAN members Jhon Jair Silva and Jesse Moisés Gutiérrez Herrera, the Committee notes that Jhon Jair Silva is currently employed as a grade 15 investigating officer in the National Directorate of Special Investigations, Antioquia section, and that Jesse Moisés Gutiérrez Herrera (who, as certified by the Human Resources Division of the Office of the Attorney-General, was not covered by trade union immunity) was employed at the Office of the Attorney-General on a provisional basis until 28 February 2007, when he was informed of the non-renewal and consequent expiry of his appointment.

The Committee's recommendations

1. 543. In the light of is foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of any further developments in relation to the effective recognition of the right to collective bargaining in relation to pensions benefits.
   • (b) With regard to the alleged harassment of SINTRAPROAN founder member and official Mr Franco Cuartas through successive disciplinary proceedings, the Committee in the particular circumstances of this case, requests the Government to inform it of the outcome of the nullity proceedings in respect of the circumstances which led to his resignation of and, if the allegations are proven true, to take the necessary steps for his reinstatement.