Report in which the committee requests to be kept informed of development - Report No 367, March 2013

Case No 2895 (Colombia) - Complaint date: 03-JUN-11 - Closed

Allegations: The complainant organization alleges that, in the framework of a restructuring process, the Department of Risaralda authorities violated the job security provision under the collective agreement, posing a threat to workers, and unilaterally imposed a settlement on workers, offering them compensation if they agreed to leave their posts; it further alleges that three unionized workers rejected this offer and were dismissed, after which the Department authorities instituted judicial proceedings to dissolve the trade union

1. 508. The complaint is contained in a communication from the Single Confederation of Workers of Colombia (CUT) – the Risaralda Subcommittee, dated 16 November 2005, received on 3 June 2011. The CUT – the National Board, declared its support of this complaint in a communication dated 7 June 2011.
2. 509. The Government sent its observations in a communication dated 4 February 2012.
3. 510. 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. 511. In a communication dated 16 November 2005, the CUT – the Risaralda Subcommittee noted that the Workers Trade Union of the Department of Risaralda (STDR), a primary level trade union, was established in the city of Pereira and was entered in the trade union register of the Ministry of Labour and Social Security of Colombia through a resolution of March 1971. In exercise of the right to collective bargaining, the union signed a collective agreement with its employer, the Department of Risaralda, which included a provision on job security. Article 4 of this agreement states: “Security. Department employees may not be dismissed without a duly proven just cause and without having presented their rebuttal in the presence of a union member. In the event of a dismissal not meeting the aforementioned requirements, the employee may take legal action for reinstatement under the same conditions prevailing at the time of their dismissal, and receive the wages they would have earned during the period of separation …”. According to the complainants, the purpose of the agreement is to amend the employment contracts, and the security provision in question must appear in workers’ employment contracts.
2. 512. The complainants note that at the end of 1999, the then governor and immediate head of the Department of Risaralda submitted to the Department Assembly a draft bylaw for the administrative restructuring of the Department. The complainant organization notes that the aim of the so-called restructuring was to cut jobs, eliminate the union organization with its 195 members, and put an end to the collective agreement and its guarantees. In this context, the Department Assembly of Risaralda, through an ordinance of 30 December 1999, helped the Governor to restructure the Department Administration at every level, changing its structure, and eliminating, modifying or merging decentralized authorities (except the Department’s Comptroller General and the aforementioned Department Assembly) for a period of six months from 1 January to 20 June 2000.
3. 513. The complainant organization notes that the Governor carried out his plan and started a pressure campaign against the unionized workers, threatening to dismiss them, in violation of the collective agreement and without granting them any compensation, contrary to the provisions under Decree No. 2127 of 1945. Through this decree, according to the Governor, six-month, automatically renewable employment contracts were concluded. The Department of Risaralda insisted on the fact that a contract could be terminated at any time, including before renewal, without any compensation, which is in violation of the collective agreement.
4. 514. The complainant organization notes that, after the threats had been acted on and the collective agreement violated, the Governor, with his team of advisors, unilaterally imposed a purported arrangement or settlement agreement on many workers, forcing them to give up their posts and other fundamental labour rights in exchange for compensation. The Governor preyed on workers’ fears and needs, forcing them to enter into a settlement before the judicial authorities on the application of the workers’ fundamental rights. Unionized workers who did not accept the purported settlement agreement (Mr Ancizar Agudelo, Mr Eduardo Porras and Mr José Cuartas) were dismissed.
5. 515. The complainant organization notes that the dismissed unionized workers brought this case before the labour judges in order to ensure respect for their fundamental rights of freedom of association and collective bargaining. The judges acquitted the Department of Risaralda, disregarding the collective agreement, particularly the provisions under article 4 which guarantee workers’ job security. The complainant organization further alleges that the Department of Risaralda took legal action to dissolve the trade union on grounds that it did not have the minimum number of 25 members required by law to be operational. According to the complainant, the Department of Risaralda used economic and fiscal restructuring as a pretext for undermining the union, denying workers their participation rights.

B. The Government’s reply

1. 516. In its communication of 4 February 2012, the Government notes that it requested information about the allegations from the Department of Risaralda, which sent its reply in a communication dated November 2011.
2. 517. The Governor’s Office notes that at the time the issues raised in the complaint had occurred, and because it did not have the capacity to handle the workload, the State of Colombia was forced to undertake a major administrative reform process, which did not spare the Department of Risaralda. Consequently, the vast majority of governmental institutions were subjected to technical, administrative and budgetary studies.
3. 518. National legislation contains a provision for the elimination of posts as grounds for dismissal of employees and officials. Nevertheless, in these circumstances, a study must first be carried out, clearly explaining the reasons for which a state entity is restructuring its workforce or for the redistribution or elimination of posts deemed no longer necessary to its operations. The administrative regulations contain provisions on rights to job security or to compensation for those who may be affected by said administrative measures. Thus, public administration employees are either reinstated, or where that is not possible, given compensation.
4. 519. The Governor’s Office (Department authority) notes that, in the present case, the Department of Risaralda followed all the procedures required by law in its restructuring of the workforce, and at no point was there any intention to violate the rights of its workers. Thus, the Department administration, to prevent any violation of the interests of the affected workers, presented them with a settlement agreement offering them compensation in accordance with the law, based on the time worked and accrued salary earned.
5. 520. The settlement offer was made without any pressure of any kind, was complied with by the affected workers, except three – Mr Ancizar Agudelo, Mr Eduardo Porras and Mr José Cuartas – who, by their own free will, were the only ones who did not request any compensation, and whose contracts were terminated in accordance with the time frame under Decree No. 2127 of 1945, in full compliance with the law. Yet these three workers, through lawyers, in the days that followed the decision, exercised their rights under the law, having exhausted the relevant administrative channels. They later brought their case before the ordinary courts, after having brought the relevant labour proceedings before the courts, which had handed down a ruling in the Department’s favour. The rulings were fully upheld by the Labour Chamber of the High Court of Pereira, which clearly demonstrates that the Department of Risaralda acted in accordance with the provisions of the administrative and constitutional rules.
6. 521. According to the Governor’s Office, with the exception of the three aforementioned workers, the relevant settlement procedure brought before the city’s labour courts applied to all the workers, who participated in this settlement procedure voluntarily. That had resulted in a decision of mutual termination of contract and administrative acts ordering the granting of benefits and financial compensation for the services provided.
7. 522. With regard to the union’s dissolution, the Governor’s Office notes that a legal situation compelled the Department to request the union’s liquidation: for reasons unknown to the administration, many of the unionized workers who had remained in the organization were dismissed by the management, and the union thus no longer had the minimum number of members required by law. Hence, the Department requested the respective dissolution and liquidation of the trade union before the labour court, and the case remains pending before the Second Labour Court of the Pereira district.
8. 523. The Government notes that this situation resulted in the creation of two trade union organizations (the Trade Union Association of Civil Servants of the Department of Risaralda and the Public Servants and Employees Trade Union of the Department of Risaralda) in the Department, with which a respectful relationship is maintained. Collective bargaining agreements governing the relationship between union members and the Department of Risaralda have been concluded with both union organizations, in a context of harmonious coexistence and in line with labour regulations. The Trade Union Association of Civil Servants has opted to maintain its agreement-based benefits through the automatic renewal of the collective agreement, whereas the last negotiations with the Public Servants and Employees Trade Union of the Department of Risaralda took place in November 2011.
9. 524. For its part, the Ministry of Labour states that: (1) the employment contracts in the Risaralda Governor’s Office were terminated on the grounds of state-ordered restructuring; (2) those persons whose employment contracts were terminated as a consequence of the restructuring received compensation; (3) the three specific cases involving the allegations had already been examined in a court of law; and (4) there are two trade union organizations in the Department of Risaralda. The Ministry adds that: (1) there are neither precedents nor complaints lodged by the union organization to indicate that the Department may have carried out anti-union acts, and that the restructuring was thus carried out with the aim of dissolving the union; (2) the trade union organization did not file any claim with evidence to support the occurrence of anti-union acts; and (3) the complaint was lodged 11 years after the alleged facts – it is understood that there are independent bodies before which workers who feel that their rights have been violated can appear, as was the case here; in the case of the present complaint, the phenomenon of the statute of limitations applied.

C. The Committee’s conclusions

1. 525. The Committee observes that in the present case, the complainant organization alleges that in the framework of a restructuring process, the Department of Risaralda authorities violated the job security provision under the collective agreement, posing a threat to workers, and unilaterally imposed a settlement on workers, offering them compensation if they agreed to leave their posts. The complainant organization alleges that three unionized workers rejected this offer and were dismissed, after which the Department authorities instituted judicial proceedings to dissolve the trade union, on grounds that the union did not have the minimum number of members (25 workers) required by law.
2. 526. Concerning the allegation that, in the framework of a restructuring process, the Department of Risaralda authorities violated the job security provision under the collective agreement, posing a threat to workers, and unilaterally imposed a settlement on workers, offering them compensation if they agreed to leave their posts, and the allegation that three unionized workers rejected this offer and were dismissed, the Government indicates that the Department authorities in question stated the following: (1) at the time that the acts in question in the complaint took place, and because it did not have the capacity to handle the workload, the State of Colombia was forced to undertake a major administrative reform process, which also affected the Department of Risaralda; (2) national legislation contains a provision for the elimination of posts as grounds for dismissal of employees and officials; in this case, a study must first be carried out, clearly explaining the reasons for which a state entity is restructuring its workforce or for the redistribution or elimination of posts deemed no longer necessary to its operations; (3) the administrative regulations contain provisions on rights to job security or to compensation for those who may be affected by said administrative measures. In this context, public administration employees may either be reinstated, or where that is not possible, given compensation; (4) the Department of Risaralda followed all the procedures required by law in its restructuring of the workforce, and at no point was there any intention to violate the rights of its workers; (5) Thus, to prevent any violation of the interests of the affected workers, they were presented with a settlement agreement before a judicial authority, so that they could receive compensation in accordance with the law, based on the time worked and accrued salary earned; (6) the settlement offer was made without any pressure of any kind and was complied with by the affected workers, except three (Mr Ancizar Agudelo, Mr Eduardo Porras and Mr José Cuartas), who did not ask to be compensated (the complainants state that the workers in question did not accept the purported settlement); (7) those three workers brought their case before the courts (first and second instance), which had handed down a ruling in the Department’s favour, and found that the Department had acted in accordance with the provisions of the administrative and constitutional rules.
3. 527. The Committee notes that, according to the Government: (1) the employment contracts in the Risaralda Governor’s Office were terminated on the grounds of state-ordered restructuring; (2) those persons whose employment contracts were terminated as a consequence of the restructuring received compensation; (3) the three specific cases involving the allegations and who did not accept the compensation had already been examined in a court of law; (4) there are neither precedents nor complaints lodged by the union organization to indicate that the Department may have carried out anti-union acts, and that the restructuring was thus carried out with the aim of dissolving the union; and (5) the complainant organization did not file any claim with evidence to support the occurrence of anti-union acts and the complaint was lodged before the Committee 11 years after the alleged facts.
4. 528. The Committee takes note of all the information, particularly the fact that: the alleged facts occurred more than 13 years ago (the Department of Risaralda Assembly authorized the restructuring in December 1999); the information provided by the complainant organization does not indicate the dismissal of any union leader in the framework of the restructuring, or that the offer of settlement was concluded exclusively with the unionized workers. Moreover, the court rejected the grievances of the dismissed workers who did not accept the settlement. The Committee further notes that the trade union organizations in question do not seem to have been consulted to discuss the consequences of the restructuring. Thus, the Committee recalls that, on numerous occasions, it had underlined that rationalization and staff reduction processes should involve consultations or attempts to reach agreement with the trade union organizations, instead of giving preference to proceeding by decree and ministerial decision [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1080].
5. 529. Concerning the allegation that the Department of Risaralda authorities instituted judicial proceedings to dissolve the STDR after the restructuring in question took place, on grounds that the union did not have the minimum number of members (25 workers) required by law, the Committee notes that, according to the Government, the Department authorities stated the following: (1) a legal situation compelled the Department to request the union’s liquidation: for reasons unbeknownst to the administration, many of the unionized workers who had remained in the organization were dismissed by management, and the union thus no longer had the minimum number of members required by law; (2) hence, the respective dissolution and liquidation of the trade union was requested before a labour court, and the case remains pending before the Second Labour Court of the Pereira district; (3) this situation resulted in the creation of two trade union organizations (the Trade Union Association of Civil Servants of the Department of Risaralda and the Public Servants and Employees Trade Union of the Department of Risaralda) in the Department, with which a respectful relationship is maintained. Collective bargaining agreements governing the relationship between union members and the Department of Risaralda have been concluded with both union organizations, in a spirit of harmonious coexistence and in line with labour regulations; and (4) the Trade Union Association of Civil Servants has opted to maintain its agreement-based benefits through the automatic renewal of the collective agreement, whereas the last negotiations with the Public Servants and Employees Trade Union of the Department of Risaralda took place in November 2011.
6. 530. In this respect, noting that, according to the complainant organization, the union organization STDR had 195 members at the time the restructuring began, that the evidence provided in support of the allegations does not indicate that the Department’s restructuring gave rise to acts of anti-union discrimination, and that, according to the authorities, many members are said to have been expelled from the trade union organization, the Committee trusts that the judicial authority will hand down a ruling on the matter in the very near future, and that, in the framework of the judicial proceedings, there will be an examination into the causes for the drop in the necessary number of workers, which led to the request for dissolution of the union organization. The Committee requests the Government to keep it informed of the final result of the judicial proceedings currently under way.

The Committee’s recommendation

1. 531. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee trusts that the judicial authority will hand down a ruling on the matter in the very near future, and that, in the framework of the judicial proceedings, there will be an examination into the causes for the reduction in the number of workers below the minimum required by the national legislation in order to be registered as a trade union, which led to the request for dissolution of the union organization. The Committee requests the Government to keep it informed of the final result of the judicial proceedings currently under way.