Report in which the committee requests to be kept informed of development - Report No 355, November 2009

Case No 2662 (Colombia) - Complaint date: 14-JUL-08 - Closed

Allegations: Denial of public servants’ right to engage in collective bargaining

1. 609. The present complaint is contained in a communication from the Single Confederation of Workers of Colombia (CUT), dated 14 July 2008.
2. 610. The Government sent its observations in a communication dated 19 August 2009.
3. 611. 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 complainant’s allegations

1. 612. In its communication dated 14 July 2008, the CUT alleges, on behalf of the National Union of Public Servants and Officials of the Municipalities of Colombia (SINALSERPUB), that the State refused to engage in collective bargaining with public sector workers. According to the CUT, since the Constitution of the Republic entered into force in 1991, and in accordance with articles 39, 55 and 56 of the Constitution, workers employed by the Colombian State are subjects of collective labour law. The CUT adds that articles 53 (last paragraph) and 93 of the Constitution provide for the application, at the national level, of international treaties on the collective rights of workers, in particular ILO Conventions Nos 87, 98, 151 and 154, which Colombia has ratified.
2. 613. The complainant organization alleges that, despite the above, the right of public sector workers to engage in collective bargaining is still not guaranteed, pursuant to the provisions of section 416 of the Substantive Labour Code, which prohibits collective bargaining in the public sector. When Convention No. 154 was ratified, SINALSERPUB filed a petition of unconstitutionality on the grounds that section 416 of the Labour Code was contrary to the provisions of the Convention. The Public Prosecutor, in Opinion No. 3898, issued on 11 August 2005, requested that section 416 be ruled unenforceable (unconstitutional), as it is contrary to Conventions Nos 151 and 154. Nevertheless, the Constitutional Court, in Ruling No. C-1234/2005, found this provision enforceable.

B. The Government’s reply

1. 614. In its communication dated 19 August 2009, the Government states that, by means of Decree No. 535 of 24 February 2009, special bodies have been set up for consultations between trade union organizations representing public sector workers and public sector entities. It adds that this legislation has opened a new chapter in regard to the right to collective bargaining in the public sector. Referring to discussions that took place at the International Labour Conference, the Government points out that the Decree has already produced tangible and satisfactory results, as consultations have been launched in the Bogotá district, as well as in the Ministry of Social Protection and the Ministry of Education, in which an agreement has been signed with the federation of teachers working in the public sector in Colombia.
2. 615. The Government considers that, in issuing Decree No. 535 in 2009, it has ensured compliance with Act No. 411, which guarantees the application of ILO Convention No. 151 and article 55 of the Constitution.

C. The Committee’s conclusions

1. 616. The Committee observes that this case concerns allegations presented by the CUT, on behalf of SINALSERPUB, relating to the Government’s refusal to guarantee public sector workers the right to collective bargaining, pursuant to section 416 of the Substantive Labour Code which provides that trade unions of public employees cannot present lists of demands or conclude collective agreements. The Committee notes that, according to the allegations, after Colombia ratified Convention No. 154, SINALSERPUB filed a petition arguing that section 416 of the Substantive Labour Code was unconstitutional and that the Public Prosecutor agreed (in Opinion No. 3898) that that legal provision should be ruled unenforceable (unconstitutional) by the Constitutional Court. The Committee notes that the complainant organization states that the Constitutional Court, in Ruling No. C-1234/2005, nonetheless declared that legal provision enforceable.
2. 617. The Committee observes that the Constitutional Court stated in this ruling that:
3. … the provision at issue shall be declared enforceable on the understanding that, in order to give effect to the right to collective bargaining laid down in ILO Conventions Nos 151 and 154, which are part of Colombia’s national legislation, trade unions of public employees may have access to other modalities for concertation on conditions of work, on the basis of a request to that effect by these trade unions, pending regulation on a procedure for that purpose by the Congress of the Republic …
4. … Lastly, the Court is not unaware that the problem of public sector trade unions’ ability to exercise their right to engage in collective bargaining stems from the absence of suitable legal mechanisms to give effect to this right. Furthermore, the legislator has not put procedures in place to allow trade unions to initiate the concertation process, or to ensure that their demands or complaints are received and handled by the public authorities. Neither has it been established which public authority is competent to issue a decision in the event of unsubstantiated denial of the right to engage in collective bargaining. There are no legal mechanisms in place to ensure that, once the concertation stage has been concluded, the demands submitted by public sector trade unions are reflected in budgetary bills or legislation concerning the public administration.
5. Thus, the Court agrees with the Public Prosecutor’s request to the effect that the legislator shall regulate the procedure, in due time and in dialogue, in so far as possible, with the trade union organizations of public employees, governing the right of such employees to engage in collective bargaining, in accordance with article 55 of the Constitution and ILO Conventions Nos 151 and 154, duly ratified by the country and which form part of domestic law under the provisions of Acts Nos 411 of 1998 and 524 of 1999, respectively.
6. 618. In this regard, the Committee notes with interest the adoption of Decree No. 535 of 24 February 2009, which regulates section 416 of the Substantive Labour Code (pursuant to Acts Nos 411 and 524 implementing, at the national level, ILO Conventions Nos 151 and 154) and establishes special bodies for collaboration between public service trade unions and public sector entities. Furthermore, noting that certain agreements have already been signed in the Bogotá district, the Ministry of Social Protection and the Ministry of Education, the Committee requests the Government to keep it informed of developments since the adoption of the abovementioned Decree, the agreements signed between public sector entities and public sector trade unions, and whether SINALSERPUB has been able to participate in collective bargaining.
7. 619. The Committee draws the legislative aspects of the present case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 620. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • (a) The Committee requests the Government to keep it informed of developments since the adoption of Decree No. 535 on 24 February 2009, the agreements signed between public sector entities and public sector trade unions, and whether SINALSERPUB has been able to participate in collective bargaining.
   • (b) The Committee draws the legislative aspects of the present case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.