Definitive Report - Report No 367, March 2013

Case No 2853 (Colombia) - Complaint date: 09-DEC-10 - Closed

Allegations: The complainant organization alleges that, in order to undermine it, the general directorate of the National Training Service (SENA) is encouraging the operation of parallel trade unions, which is damaging to SINDESENA and its officials; it also alleges that its officials have received death threats

1. 454. The complaint is contained in a communication from the Union of Public Employees of the National Training Service – SENA (SINDESENA) dated 9 December 2010.
2. 455. The Government sent its observations in a communication of November 2011.
3. 456. 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. 457. In a communication dated 9 December 2010, the complainant organization alleges that the directorate of the National Training Service (SENA) has, for several years, been applying a harsh anti-union policy against SINDESENA and its officials.
2. 458. The complainant organization alleges that the general directorate of SENA has encouraged the operation of parallel trade unions as its preferred means of undermining SINDESENA and that it thus strengthened the Union of Employees and Workers of SENA (SETRASENA).
3. 459. According to the complainant organization, SETRASENA officials have been given preferential treatment, including, among other things, through the approval of temporary transfers or secondments to some of the regional offices in the country (moves that were approved quickly and prompted by the situation of insecurity due to threats). The complainant organization claims that such measures to protect lives are not granted to SINDESENA officials with the same sense of urgency as they are to SETRASENA officials. Furthermore, SINDESENA officials face an endless list of requirements, which is not the case for SETRASENA.
4. 460. The complainant organization indicates that SETRASENA’s growth is clearly due, among other things, to the support it receives from SENA’s directorate, which is carrying out a smear campaign based on false premises and unfounded claims, insults and slanderous accusations against SINDESENA. As part of its strategy, SENA’s directorate has set about attracting union officials by offering them office jobs. In particular, academic coordination positions have been given to SETRASENA officials. Similarly, the family members of a significant number of SETRASENA officials have been hired under services contracts or given temporary appointments in public office; such appointments are in most cases made on the condition that the officials refrain from taking part in union activities and lead action against SINDESENA.
5. 461. Moreover, according to the complainant organization, the relationship of legal subordination that exists between the director-general of SENA and the chief of the Internal Disciplinary Monitoring Office has highlighted the total loss of autonomy in the institution’s disciplinary action. The fact that numerous disciplinary proceedings have been taken against officials who are heavily involved in union activity is proof of this; according to the complainant organization, the situation is such that at least 50 per cent of the members of SINDESENA’s national executive council are currently facing disciplinary proceedings that are legally unfounded or that have been initiated for abject or trivial reasons. According to the complainant organization, this situation has arisen in several regional offices but the ongoing harassment suffered by trade union officials in the Huila, Antioquia and Nariño regional offices is particularly severe.
6. 462. The complainant organization adds that, although SINDESENA’s statutes allow staff employed under services contracts and staff holding temporary appointments to join the union, it is very difficult for them to do so because they feel intimidated by the possibility that their services contracts will not be renewed or that they will face some other form of reprisal.
7. 463. Lastly, the complainant organization alleges that SINDESENA officials have received death threats from the SENA division of the “Águilas Negras” paramilitary group and that the absence of a public statement from SENA’s directorate disassociating itself from and condemning this type of threat is a tacit endorsement of such action by armed groups that operate outside the law.

B. The Government’s reply

1. 464. In a communication of November 2011, the Government states that, given that the complaint refers to issues such as the operation of parallel trade unions to undermine the union, the strengthening of SETRASENA with the support of SENA’s directorate and several disciplinary proceedings against union officials, it has asked SENA to provide information about the allegations. The Government states that SENA is a public institution that is responsible for fulfilling the duty of the State to invest in the social and technical development of Colombian workers, by offering and providing free comprehensive vocational training aimed at the incorporation and development of people in productive activities that contribute to the country’s social, economic and technological development.
2. 465. The Government emphasizes that it respects trade union autonomy and the fact that more than one trade union organization is operating in a single institution cannot be seen as an act of interference that involves undermining another trade union organization. Within SENA there are three trade union organizations and they are always all taken into account.
3. 466. Regarding the allegation that SENA has offered academic coordination positions to several officials, the Government states that there is no implication that these officials should leave SINDESENA. Such appointments should be made, as should always be the case in public administration, on the basis of a candidate’s individual qualities. The directorate of SENA has developed a labour relations policy aimed at establishing a relationship with each of the trade union organizations for the purpose of handling particular situations and designing work schedules either jointly or individually, taking into account the agreement between the parties.
4. 467. The Government recalls that SINDESENA has already presented a complaint to the Committee against SENA (Case No. 2356). It adds that, as a result of an ILO preliminary contacts mission, an agreement was reached between the institution and the trade union organization which included the establishment of working groups. In this regard, the directorate of SENA, through its general secretariat, holds monthly meetings with SINDESENA on trade union and labour-related matters. The union has sent more than 200 written requests relating to union leave, the payment of travel costs and information on the institution and all these requests have been duly addressed by the institution. According to the Government, SENA provides SINDESENA with all the trade union guarantees necessary for it to carry out its duties; has granted more than 16,000 days of leave; has covered the cost of airfares to facilitate the performance of activities; provides it with means of sharing information, such as bulletin boards; and has continued to allow the use of union premises. The Government also notes that both SINDESENA and SETRASENA are involved in the institution’s strategic planning process.
5. 468. With regard to the Union of Workers of the National Apprenticeship Service (SINTRASENA – another trade union that operates within SENA), the Government reiterates that, as has been noted previously, SENA respects the free choice of the union members. SINTRASENA is a union that was established in 1960 and currently has 648 members in 28 regional offices. According to the Government, it cannot be claimed that this union, which has existed for over 51 years, is being used to undermine another organization. Furthermore, the Government emphasizes that it neither can nor should interfere in the relationships or disputes that may exist between the different organizations. The complaint presented to the labour authority by the trade union organization relates to labour issues and not the violation of the right to freedom of association.
6. 469. With regard to the alleged threats, the Government states that the cases have been brought to the attention of the staff of the protection programme so that the necessary measures can be taken. In addition, the directorate of SENA has taken measures within the scope of its mandate, for example, by transferring officials for security reasons.
7. 470. For its part, in a communication dated 7 October 2011, SENA reports that, in a communication sent on 17 March 2011 to the president of SINDESENA and the regional directors and assistant directors of the vocational training centres, the director-general set out the policy of institutional relations with the trade union organizations, based on the following points: continue to hold working group meetings with each of the trade union organizations, for the purpose of addressing particular situations and designing work schedules either individually for each trade union or jointly, depending on what is agreed; approach the Ministry of Social Welfare for its assistance in relation to preventive inspections through training to allow for better interpretation and understanding of the application of labour standards in areas of mutual interest; address the particular issues of each of the trade union organizations, seeking agreements that allow, where appropriate, for these issues to be resolved, and allow the Ministry of Social Welfare to participate in the working groups.
8. 471. SENA adds that, with the aim of extending to the regional level the principal points of the labour relationship agreed upon with the various unions, all the regional directors and assistant directors at training centres were given guidance so that they could adopt the same approach as the administration towards trade union matters. In this regard, calls were made for the unions’ concerns to be settled by the authorities at the regional offices, with the support of the regional councils, in an atmosphere of mutual respect and respect for the autonomy of each institution, so as to promote the harmonious coexistence and well-being of the SENA community. As part of this process, various regional offices have been using certain methods to establish closer ties and engage in dialogue with the executive subcommittees of the unions with a view to reaching agreement. The general directorate has been following up on this to ensure that the dialogue process is moving forward in each regional office. In addition, the general directorate, through the general secretariat, which is responsible for labour relations, has held regular meetings on the issue of labour relations, and progress has been made in addressing the concerns of and requests by the trade union organizations in accordance with the legal framework.
9. 472. SENA highlights that several meetings (eight) have been held with representatives of SINDESENA and its executive subcommittees, and the specific points raised by the union organization were discussed and responses were given by SENA both in writing and at the labour relations meetings. Furthermore, SENA emphasizes that the general secretariat and SINDESENA representatives meet monthly to discuss trade union and labour relations matters. In 2011, meetings were held with SINDESENA on 8 February, 8 March, 12 April, 12 May, 22 June, 21 July and 12 August. The parties agreed that the meetings for the rest of the year would be held on the second Tuesday of each month. It was decided that, in the regional offices, the regional directors would meet with the training centre teams at least three times a year. The issues discussed with SINDESENA at the various meetings and the multiple concerns and requests submitted in writing have been addressed and responses have been given; however, this is not a question of joint management of the institution, and therefore the issues upon which agreement has been reached have been acted upon and those that remain unresolved have been explained, including with regard to budgetary, logistical and operational constraints and the regulatory framework governing action.
10. 473. SENA states that it has fully respected the unions’ right to protest, as well as their other rights, but it does not share the view that in order to exercise this right, action needs to be taken that would affect the other members of the SENA community, such as blocking access to the training centres in order to prevent the entry of anyone who thinks differently and who wants to exercise their right to work and right to education.
11. 474. Furthermore, as for any complaints against it presented to the Ministry of Social Welfare, SENA reports that, so far this year, it has not been made aware of any complaints against it by SINDESENA, presented either to the Ministry of Social Welfare or to the labour inspectorates. Meanwhile, the Prevention, Inspection, Supervision and Monitoring Group of the Ministry of Social Welfare has issued three resolutions in response to complaints filed by SINDESENA against SENA in which it decided not to take administrative measures against SENA. SENA also reports that, on 15 December 2009, it signed a memorandum of understanding within the framework of Decree No. 535 of 2009 on issues relating to working conditions and the regulation of meetings between SENA, employees and the union, which is valid for two years.
12. 475. With regard to trade union guarantees, the institution provides the following information:
    • – Union leave. Union leave for SINDESENA officials was agreed upon with the intervention of the Ministry of Social Welfare in decisions of 27 March 2006 and 9 February 2007. A total of 16,180 days of union leave was granted under these decisions and a further 75 days of leave for other union activities were also approved, meaning that the total amount of union leave granted to SINDESENA in 2011 was 16,255 days.
    • – Check off of union dues. SENA has been strict in the checking off of union dues for SINDESENA members and has duly transferred these resources to the trade union organization.
    • – Airfares. In 2011, SENA paid for 75 airfares for SINDESENA executive committee members in order to facilitate their trade union activities; to date, 69 airfares have been provided for the dates and routes requested by the union president.
    • – Means of sharing information. SENA has made bulletin boards available on the institution’s premises for SINDESENA to use for its own purposes. The national executive committee of SINDESENA and some of the executive subcommittees in the regional offices have been given institutional email accounts so that they can circulate information about the union’s ideology and activities throughout the institution and, at the request of the union, authorization has been given to set up institutional email accounts for the executive subcommittees that do not have them to date; those accounts will be opened to the extent that the technical conditions available to the institution permit. SENA has also provided the union with the use of its videoconferencing facilities upon request.
    • – Union premises. In 2011, SENA continued to provide SINDESENA with union premises within SENA where such premises already existed. Because of maintenance and refurbishment work at the Salomia Complex (Cali), it will be necessary to relocate both the union premises and administrative offices, which has led to some unrest in the union’s executive committee, but the work is necessary. At the national headquarters, some renovation work was carried out and, at the Antioquia regional office, air conditioning was installed in the SENA premises where SINDESENA has its headquarters.
    • – Support for the commemoration of the union’s 40th anniversary. SENA supported the commemoration of SINDESENA’s 40th anniversary in June 2011. It authorized union members around the country to participate in the activities that were organized that day. It made the videoconferencing facilities available for one of the events organized on 20 June 2011 for four hours and made the auditorium available for the main event, at which SENA’s director-general and other directors spoke.
    • – Participation in the institution’s strategic planning process. SENA is currently carrying out its strategic planning exercise for the period 2011–14 with a vision for 2020. The document setting out the action plan stated that strategic planning should make it possible for all the actors involved in SENA to have their views heard on the future of the company, with the objective from the outset being to increase the participation of the main actors in the area of vocational training and institutional work, including trade unions. To this end, meetings were held with focal groups involving, among others, employers, workers, government officials, unionized and non-unionized SENA employees, apprentices and graduates with nationally recognized accreditation. Of those who participated in the focal group meetings, 24 were members of the trade unions operating in ten of the institution’s regional offices and 104 were apprentices. In communications dated 2 August 2011, SINDESENA and the Central Unitaria de Trabajadores de Columbia (CUT), as well as the other two unions operating within the institution, were invited to participate in an interview on the issue and in the strategic planning process being conducted by the institution. Although SINTRASENA and SINDESENA did not agree to participate in the process of developing the institution’s strategic plan, SINTRASENA accepted the invitation of the administration to participate in the planning exercise, as did SETRASENA, and they are both doing so in a cordial fashion and are doing their best to serve the best interests of the institution. Although SINDESENA initially expressed an interest in participating in the strategic planning exercise, indicating that it would participate in the interview for the development of the plan, after the national assembly of its members, held from 16 to 19 August 2011, it sent a communication stating that it would not participate in the process of developing the strategic plan. SENA indicates that while it respects that SINDESENA is free to make its own decisions, it disagrees with the reasons given by the trade union to distance itself from the strategic planning exercise and, therefore, the administration reissued the invitation and is leaving the door open to the possibility of its participation.
13. 476. Regarding the safety of the threatened trade unionists, SENA states that, given that it does not have the power, the logistics or the budget to investigate such incidents or provide adequate protection measures, in 2011 the general secretariat referred to the Ministry of Interior and Justice 22 cases concerning threats made to members and officials of the three unions, in accordance with the provisions of Section 81 of Act No. 418 of 1997 and Decree No. 1740 of 2010. These cases are handled at the Ministry by the coordination team of the protection programme and the regulatory and risk assessment committee. These have the authority to order preventive measures and conduct risk assessments, on the basis of which technical protection measures may be taken, and they coordinate the implementation and funding of such measures. On 5 August 2011, an initial meeting was held between the Director of Human Rights of the Ministry of Justice and three SENA representatives, at which these issues were discussed comprehensively and agreement was reached to continue the relationship; the Ministry also sent a report on the steps it had taken in each case, and the unions were asked to provide information in this regard, to make the necessary clarifications for the Ministry. In cases where a request has been made for the implementation of internal preventive measures, support has been provided; thus, for example, in 2011, two officials were transferred to other workplaces for security reasons. The institution stresses that it will continue to provide the support requested by the security agencies with regard to the protection and prevention measures that are taken and to support to the extent possible the requests made by those who have received threats.

C. The Committee’s conclusions

1. 477. The Committee observes that, in the present case, the complainant organization alleges that, in order to undermine it, the general directorate of SENA encouraged the operation of parallel trade unions and strengthened another union (SETRASENA) that operates within the institution (according to the complainant, the directorate of SENA set about attracting union officials by offering them office jobs or by offering their family members temporary appointments in public office, on the condition that they refrain from taking part in union activities, and has initiated disciplinary proceedings against 50 per cent of the members of SINDESENA’s national executive committee). Likewise, the complainant organization alleges that its officials have received death threats from the SENA division of the “Águilas Negras” paramilitary group, that security measures for SINDESENA officials are not approved with the same sense of urgency as those approved for SETRASENA officials and that the absence of a public statement from the SENA authorities disassociating themselves from and condemning this type of threat is a tacit endorsement of such action by armed groups that operate outside the law.
2. 478. With regard to the allegation that SENA’s general directorate, with the aim of undermining the trade union organization, encouraged the operation of parallel trade unions and strengthened another union (SETRASENA) operating within the institution, (according to the complainant, SENA’s directorate set about attracting union officials by offering them office jobs or by offering their family members temporary appointments in public office, on the condition that they refrain from taking part in union activities, and has initiated disciplinary proceedings against 50 per cent of the members of SINDESENA’s national executive committee), the Committee notes that, according to the Government: (1) it respects trade union autonomy, and the fact that more than one trade union organization is operating in a single institution cannot be seen as an act of interference that involves undermining another trade union organization; (2) there are three trade union organizations within SENA; (3) there is no implication that the several officials offered academic coordination positions have to leave SINDESENA; such appointments should be made, as should always be the case in public administration, on the basis of a candidate’s individual qualities; (4) SENA’s directorate has developed a labour relations policy aimed at establishing a relationship with each of the trade union organizations for the purpose of handling particular situations, taking into account the agreement between the parties; (5) within the framework of an ILO preliminary contacts mission, SINDESENA and SENA reached an agreement on the establishment of working groups; in this context, the directorate of SENA, through its general secretariat, holds monthly meetings with SINDESENA on trade union and labour-related matters; (6) the union has sent more than 200 written requests relating to union leave, and SENA has granted more than 16,000 days of leave, airfares and means of sharing information (bulletin boards) and all requests have been addressed; (7) SENA provides SINDESENA with all the union guarantees necessary for it to carry out its duties; and (8) the complaints presented by the trade union organization to the labour authority relate to labour issues and not the violation of the right to freedom of association.
3. 479. The Committee also notes that the SENA authorities indicate that: (1) they are continuing to hold working group meetings with each of the trade union organizations, for the purpose of addressing each particular situation; (2) guidance is given to all the regional directors so that the unions’ concerns can be settled by the authorities at the level of each regional office; (3) between February and August 2012, eight meetings were held with SINDESENA, these meetings will continue to be held on the second Tuesday of each month, the requests submitted have been addressed and SENA is not aware of any complaints against it presented to the Ministry of Social Welfare by SINDESENA; (4) with regard to the union guarantees offered to SINDESENA, union leave has been granted, union dues are checked off, airfares are paid for, bulletin boards and union premises are provided and the union and the CUT were invited to participate in the institution’s strategic planning process; (5) on 15 December 2009, a memorandum of understanding on labour matters was signed within the framework of Decree No. 535 of 2009 on issues relating to working conditions and the regulation of meetings between SENA, employees and the union, which is valid for two years; and (6) SENA has fully respected the unions’ right to protest, but it does not share the view that in order to exercise this right, action needs to be taken that would affect the other members of the SENA community, such as blocking access to the training centres in order to prevent the entry of anyone who thinks differently and who wants to exercise their right to work and right to education.
4. 480. The Committee takes note of all this information and welcomes in particular the establishment of the forum for dialogue established in the context of an ILO preliminary contacts mission, which has allowed the complainant organization and the SENA authorities to meet on a monthly basis to discuss labour and trade union-related matters that are of interest to the parties. In these circumstances, while noting that there are no complaints pending before the administrative or judicial authorities in relation to the allegations presented in the context of the case, the Committee expects that the issue of the alleged disciplinary proceedings that have been initiated against members of SINDESENA’s executive committee will be discussed within the framework of the monthly dialogue held between SINDESENA and SENA.
5. 481. Regarding the allegation that SINDESENA officials have received death threats from the SENA division of the “Águilas Negras” paramilitary group and that the absence of a public statement from the SENA general directorate disassociating itself from and condemning this type of threat is a tacit endorsement of this form of action by these armed groups that operate outside the law, the Committee notes that, according to the Government, the cases have been brought to the attention of the staff of the protection programme so that the necessary measures can be taken, and that the SENA directorate has taken measures within the scope of its mandate, for example, by transferring officials for security reasons. The Committee also notes that, according to SENA: (1) given that it does not have the power, the logistics or the budget to investigate such incidents or provide adequate protection measures, in 2011 the general secretariat referred to the Ministry of Interior and Justice 22 cases concerning threats made to members and officials of the three unions; (2) these cases are handled at the Ministry by the coordination team of the protection programme and the regulatory and risk assessment committee; (3) in cases where a request has been made for the implementation of internal preventive measures, support has been provided; thus, for example, in 2011, two officials were transferred to other workplaces for security reasons; and (4) SENA will continue to provide the support requested by the security agencies with regard to the protection and prevention measures that are taken and to support to the extent possible the requests made by those who have received threats.
6. 482. The Committee takes note of this information and recalls that the environment of fear induced by threats to the life of trade unionists has inevitable repercussions on the exercise of trade union activities, and the exercise of these activities is possible only in a context of respect for basic human rights and in an atmosphere free of violence, pressure and threats of any kind [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 60]. Taking into account that trade union officials have received death threats and the information provided by the Government, the Committee notes the initiatives taken to provide protection to the threatened trade union officials and members and encourages the Government to continue to take all the measures at its disposal to guarantee the safety of the threatened trade union officials and members within SENA.

The Committee’s recommendations

1. 483. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the question of the alleged disciplinary proceedings that had been initiated against members of SINDESENA’s executive committee will be discussed within the framework of the monthly dialogue that is held between SINDESENA and SENA.
   • (b) The Committee encourages the Government to continue to take all the measures at its disposal to guarantee the safety of threatened trade union officials and members within SENA.