Allegations: The complainants allege that during restructuring, several public
entities carried out acts of anti-union discrimination and violated the right to bargain
collectively in an effort to cause the dissolution of several trade unions. The allegations
also concern a work stoppage that was ruled unlawful
- 194. The complaint is contained in a communication dated 16 May 2014 from
the Single Confederation of Workers of Colombia (CUT) and its affiliated trade unions:
the National Union of Social Security Workers (Sintraseguridad Social); the Cauca branch
and Popayán office of the National Union of Health, Social Security and Allied Service
Workers and Public Servants of Colombia (ANTHOC); and the Bolívar office of the Union of
Electricity Workers of Colombia (Sintraelecol). The CUT and ANTHOC sent new allegations
in a communication dated 10 June 2015.
- 195. The Government sent its observations in communications dated 22 May
and 19 October 2015 and 8 March and 12 August 2016.
- 196. 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
A. The complainants’ allegations- 197. In their communication of 16 May 2014, the CUT and its four
affiliated trade unions –Sintraseguridad Social, the Cauca branch of ANTHOC, the Popayán
office of ANTHOC and the Bolívar office of SINTRAELECOL – allege that during
restructuring and privatization processes, several public entities carried out acts of
anti-union discrimination and violated the right to bargain collectively in an effort to
cause the dissolution of the four trade unions affiliated to the CUT.
- 198. The complainants state that their complaint includes four cases that
concern the same issue and that although institutions have been established in order to
ensure respect for the right to organize, these bodies: (i) do not require public
enterprises to ensure prior consultation with the trade unions affected by
restructuring, liquidation or privatization, preferring to work through decrees and
ministerial decisions; (ii) do not respond quickly and effectively to petitions,
complaints, requests and other actions concerned with protecting the enhanced job
security of workers who enjoy immunity and acts of anti-union discrimination that are
directed flagrantly and solely against unionized workers; and (iii) do not have
efficient mechanisms through which the affected workers can enforce the payment of
benefits required by law or pursuant to an agreement, such as benefits not received
owing to demotion or dismissal and of compensation for unfair dismissal.
First case: Sintraseguridad Social
- 199. The first case concerns Sintraseguridad Social, a trade union
representing employees of the Social Security Institute (hereinafter “the Institute”),
which was established in 1946 and is currently in liquidation. According to the
complainants, Legislative Decree No. 1750 of 26 June 2003 broke up the Institute and
replaced it with several state-owned social enterprises, including, among others, the
Antonio Nariño Corporation (hereinafter “the enterprise”). The complainants state that
when the Institute was broken up, over 75 per cent of its workers were trade union
members and over 600 union officials enjoyed trade union immunity. They also allege that
none of the trade unions was consulted with regard to the restructuring and that
although the Institute was broken up as part of a broader policy for the privatization
of public enterprises, the various decisions to transfer union officials who enjoyed
immunity and members of Sintraseguridad Social were part a policy designed to weaken the
trade union or cause its dissolution, particularly in the light of the fact that no
negotiations or consultations on the matter were held.
- 200. According to the complainants: (i) as a result of the break-up of
the Institute, the workers were transferred to the various state-owned social
enterprises that had been established; (ii) through Decision No. 1488 of 25 June 2003,
the director of the Institute ordered that 465 union officials who enjoyed immunity be
transferred to different offices with a consequent worsening of their working
conditions; (iii) on 18 July 2003, Decision No. 1488 was repealed through Decision No.
1731, leaving the transferred workers in legal limbo since there was no order for them
to return to their previous posts at the Institute; and (iv) on 25 July 2003, several
decisions that once again transferred workers to different entities, prolonging the
worsening of their working conditions, were issued.
- 201. The complainants state that on 27 January 2005, in response to an
application for constitutional review filed by union officials, the Constitutional Court
issued Decision No. T-041, ordering the automatic transfer of workers within the
enterprise. According to the complainants, the enterprise did not comply with the
instruction contained in the Decision and the workers had no choice but to continue to
work in the entities to which they had previously been assigned, with worsened working
conditions. Finally, through Decision No. 1814 of 20 September 2006, the Institute
ordered that the workers be dismissed from the entities to which they had previously
been assigned and transferred within the enterprise, instructing that they report for
work as from 25 September 2006.
- 202. The complainants state that in the light of this situation, a
petition stressing the need to safeguard job security, trade union immunity and the
wages and benefits due to workers pursuant to laws and agreements was submitted to the
enterprise’s manager in September and December 2006. In that connection, they indicate
that the guards at the various entities into which the Institute had been broken up were
sent a memorandum, instructing them to bar workers from their workstations, and that
while the workers had no choice but to report to the enterprise in order to take up
their new posts, when they arrived they were denied entry on the grounds that
disciplinary proceedings for presumed abandonment of post had been brought against them.
The complainants maintain that the workers were thereby dismissed since they were
prevented from reporting for duty at both their former posts, owing to their transfer,
and their new posts, owing to the disciplinary proceedings. Lastly, they state that
through Decree No. 3870 of 3 October 2008, the Government ordered the closing and
liquidation of the enterprise and that this liquidation was ordered without the workers
having been allowed to take up their new posts or return to their former posts in the
entities of the Institute that had been broken up. According to the complainants, of the
workers who enjoyed trade union immunity and who had been unlawfully dismissed from the
Institute in 2006, having been prevented from entering the enterprise, only a few trade
union officials won reinstatement through court rulings.
Second case: the Cauca branch of ANTHOC
- 203. The complainants state that through separate decrees issued on 9
April 2007, the Cauca departmental health office (hereinafter “the office”) was closed
and liquidated and numerous state-owned social enterprises were established as
decentralized entities under the departmental health department. They maintain that at
the time of the liquidation the office employed over 3,000 workers, including career and
temporary public servants and non career employees, of which some 1,300 – including 66
officials with trade union immunity – were members of the Cauca branch of ANTHOC.
According to the complainants, the Cauca branch of ANTHOC (the trade union for
health-care workers in the department of Cauca) and the other trade unions concerned
were not consulted regarding the closure and liquidation of the office. They also
indicate that in the light of the imminent liquidation, the Cauca branch of ANTHOC
requested collective bargaining to ensure respect for the workers’ minimum guarantees
established by law and in signed agreements and that the office violated those
agreements by dismissing all of the workers without regard for what had been agreed.
According to the complainants, the liquidation was part of a policy designed to weaken
the trade union and, ultimately, cause its dissolution, particularly in the light of the
fact that although agreements were signed, they were never implemented.
- 204. According to the complainants, in December 2007 the office that was
in liquidation informed the workers that their posts had been abolished. Although court
authorization for dismissal of the workers who enjoyed immunity had been requested, the
dismissals were carried out without waiting for the court’s decision. For this reason,
the judges closed the case, declaring it moot. The complainants also state that on 12
February 2008, the workers who enjoyed trade union immunity submitted a final
administrative appeal to the office. According to the complainants, although all career
public servants in the field of administration were granted compensation for the
abolition of posts during the liquidation, this compensation was not granted to public
servants on temporary contracts, some of whom had accrued over 30 years of service. The
employees on temporary contracts, who were the victims of unfair discrimination, brought
an administrative complaint before the Ministry of Labour. Having received no reply,
they appealed for annulment of the administrative decisions but the case was
closed.
Third case: the Popayán office of ANTHOC
- 205. The complainants state that the members of the Popayán office of
ANTHOC are employed by the San José de Popayán University Hospital, a state-owned social
enterprise that provides specialized health services in the city of Popayán. They also
indicate that the employees established the Popayán office of ANTHOC in 1991 and, in
1994, signed a collective labour agreement with the hospital, which the latter
implemented without incident until 2001. They state that on 24 August 2001, the hospital
board decided to reclassify the workers and that, as a consequence of this
reclassification, over 300 non-career employees became public servants. According to the
complainants, because, under the legislation in force at the time, public servants could
not be included in collective labour agreements covering non-career employees, over 300
workers lost coverage under the 1994 agreement. The complainants state that the
reclassification of non-career employees through Agreement No. 124 (2001) had an impact
on all of the union officials of the Popayán office of ANTHOC and constitutes a
violation of trade union immunity, which prohibits the worsening of working
conditions.
- 206. The complainants emphasize that none of the trade unions in
question, including the Popayán office of ANTHOC, were consulted with regard to the
workers’ reclassification and maintain that it was carried out because the hospital was
allegedly failing economically and financially and that it remedied the problem by
failing to implement the collective labour agreement. They also state that after ceasing
to apply the agreement to over 300 workers, the hospital dismissed 116 workers, all of
whom were members of the Popayán office of ANTHOC; this shows that the hospital’s
purpose was to reclassify the unionized workers covered by the collective labour
agreement in order to facilitate their subsequent dismissal since the agreement entitled
unionized workers to benefits in the event of dismissal without just cause.
- 207. The complainants state that on 26 July 2012, the Administrative
Disputes Chamber of the Council of State annulled Agreement No. 124 of 24 August 2001,
through which the hospital board had reclassified the hospital’s non-career employees,
on the grounds that the board had not been competent to issue it. According to the
complainants, as a result of this decision to annul the Agreement: (i) all of the
workers who had been reclassified were entitled to be granted and paid the benefits
required by law or under the collective labour agreement that they had not received
since December 2001; and (ii) the workers who had been dismissed without just cause or
because their posts had been abolished were entitled to reinstatement with no break in
service or to compensation for unfair dismissal and to be granted and paid the benefits
to which they were entitled under the collective labour agreement but had not received.
The complainants allege that the hospital has yet to meet these obligations; that, on 3
January 2013, the Popayán office of ANTHOC requested the hospital’s management to
implement the aforementioned decision; and that, on 21 January 2013, the management
denied this request. Lastly, they state that, on 6 February 2013, the Popayán office of
ANTHOC brought an administrative complaint in respect of these events before the
Ministry of Labour and that the case was closed on the grounds that the Ministry was not
competent to consider it.
Fourth case: the Bolívar office of SINTRAELECOL
- 208. The complainants indicate that the state-run electricity companies,
Electribol and Electrificadora de Sucre, now known as Electrocosta and Electricaribe
(hereinafter “the enterprise”) and owned by the Spanish multinational corporation, Unión
Fenosa, were privatized between 1998 and 2000 and they allege that the electricity
workers’ union, SINTRAELECOL, was never consulted with regard to the privatization. They
also maintain that although the privatization was part of a broader policy of
privatizing public enterprises, it was also designed to weaken the trade union and cause
its dissolution.
- 209. The complainants state that the electricity companies and
SINTRAELECOL had signed a collective labour agreement that established extra-legal
benefits for workers in the various plants and that, during the privatization process,
misleading voluntary retirement plans were developed. As a result, over 1,400 workers
retired in what amounted to unfair and unlawful dismissal. According to the
complainants, the electricity companies failed to follow the procedure for dismissing
workers that was set out in the collective labour agreement, which provided that they
could only do so for the just causes established by law. In the light of that situation,
the workers who had been dismissed brought regular complaints before the labour court,
asserting their right to reinstatement. According to the complainants, the Supreme Court
ruled that while the workers who had been dismissed could not be reinstated because
their posts had been abolished, that fact did not relieve the electricity companies of
the obligation to pay compensation for dismissal; the complainants maintain that, to
date, no such payment has been made. They also state that the Supreme Court, in its
ruling, ignored the collective labour agreement.
Other allegations
- 210. In their communication of 10 June 2015, the CUT and ANTHOC state
that, in the light of the liquidation of health-care entities in various parts of the
country and of serious cases of corruption and malfeasance on the part of local
governments, ANTHOC called for the holding of protests and limited work stoppages from
20 to 28 August 2013 while ensuring the provision of minimum emergency and special care
services. They also state that, on 22 October 2013, the Ministry of Labour filed a
complaint against ANTHOC, requesting that the work stoppage be declared unlawful
pursuant to Act No. 1210 (2009) and arguing that ANTHOC was guilty of failing to provide
essential public health services in several hospitals.
- 211. According to the complainants, the Labour Chamber of the High Court
of the judicial district of Ibagué, in a first instance ruling, rejected the Ministry’s
arguments and concluded that the work stoppage had had no impact on the provision of
health care to any hospital patients. However, on 30 July 2014, the Labour Chamber of
the Supreme Court declared the work stoppage carried out by ANTHOC as from 20 August
2013 unlawful. The CUT and ANTHOC maintain that while the right to strike is not
absolute, it cannot be restricted as the Supreme Court has done and that, since the
Court's ruling that it was unlawful to strike, ANTHOC’s members have been potentially at
risk since the various employers may initiate disciplinary proceedings against union
officials, seeking sanctions such as the suspension or dismissal of workers.
- 212. The complainants state that the Constitution establishes the
obligation to ensure the right to strike and to regulate strikes by law and that
Colombia has failed to issue regulations on minimum services in order to ensure such
exercise even though the Constitutional Court has urged Congress to do so. They draw
attention to rulings of the Constitutional Court, particularly Decision No. C-796/2014
(in which the Court urged Congress to address the issue of the right to strike in the
specific petroleum sector within two years). The CUT and ANTHOC request that measures be
taken to ensure that: (i) the laws are amended in order to ensure the provision of
minimum services during strikes in enterprises that provide essential public services
stricto sensu; and (ii) no disciplinary proceedings against ANTHOC members for having
exercised the right to strike or protest are initiated or continued in cases where
minimum services were provided.
B. The Government’s reply
B. The Government’s reply- 213. In its communication of 22 May 2015, the Government makes the
general statement that section 189 of the Constitution empowers the President of the
Republic to carry out the restructuring of and to establish new state-owned social
enterprises and that the Committee on Freedom of Association is not competent to
consider dismissals such as those arising from structural adjustment and flexibility
programmes prompted by business bankruptcies, closures or mergers. With regard to
collective bargaining in the public sector, the Government emphasizes that pursuant to
Decree No. 1092 of 24 May 2012 on the terms and procedures applicable to collective
bargaining between public servants’ trade unions and public entities, the right to
bargain is not absolute; non-labour-related issues such as organizational structure,
staffing, administrative procedures, career advancement in the administration,
disciplinary proceedings and benefit systems are excluded from bargaining.
- 214. The Government states that, in this case, it is extremely important
to understand the definition of “trade union immunity” under the Constitution, the law
and case law. In that connection, it stresses that: (i) a constitutional guarantee
protects workers and public servants who are trade union officials so that they can
fulfil their responsibility to defend the union’s interests freely without being
prosecuted or subjected to retaliation by employers; (ii) “trade union immunity” means
that employers that wish to dismiss employees who enjoy such immunity must first
demonstrate, with confirmation by a labour court, that they have just cause; even during
restructuring, such prior authorization must be sought; (iii) however, trade union
immunity is not absolute; it may be restricted during, for example, the restructuring of
public entities. This issue has been examined at length by the Constitutional Court,
which has recognized that limitations on trade union rights must be reasonable and
proportionate. On this last point, the Government emphasizes that it is clear from the
case law that the purpose of lifting such immunity is to verify the employer’s
allegations as to the reason for the dismissal and determine whether it is lawful. It
recalls that, according to section 410 of the Labour Code, the “just causes” for
dismissal include the liquidation or permanent closure of an enterprise or
establishment, the total or partial suspension of work by the employer for a period of
more than 120 days, and the reasons for deeming a contract to have been terminated that
are listed in sections 62 and 63 of the Code. The Government also states that it is for
the regular labour courts to deal with complaints concerning the reinstatement of public
servants on grounds of trade union immunity and that the procedure for lifting such
immunity is set out in articles 113–118 of the Code of Labour Procedure.
First case: Sintraseguridad Social
- 215. In its communication of 19 October 2015, the Government states that
the Constitutional Court has established, in Decisions Nos C-306 and C-314 (2004), that
the Government was empowered to issue Decree No. 750 (2012) ordering the Institute’s
liquidation and that the change in the labour regime governing the Institute’s
non-career employees, who became public servants pursuant to Decree No. 1750 (2003), did
not constitute a violation of the right to freedom of association. The Government also
states that: (i) the Institute’s liquidator developed and implemented a voluntary
retirement plan for all workers employed by the entity as at 28 September 2012, with the
exception of those who were in pre-retirement; (ii) a total of 535 unionized and
non-unionized workers signed up for this retirement plan and compensation was paid to
all workers who were not in pre-retirement as at the date on which the entity was closed
(31 March 2015), whether or not they were trade union members; (iii) prior to the end of
the liquidation process, the liquidator deposited the remaining funds owed to all
workers who had been dismissed and were parties to the reinstatement appeal in the
Social Security Institute Liquidation Reserve Fund (PARISS) and since the Court could
not order reinstatement with an entity that no longer existed, it ordered the payment of
compensation; and (iv) 18 of the 113 workers who were dismissed on 31 March 2015 and
whose trade union immunity was lifted were parties to the appeal for reinstatement;
thus, only they are legally entitled to receive compensation pursuant to the ruling of
the Constitutional Court.
- 216. The Government states that on 8 October 2015, representatives of
PARISS and the Union of Social Security Institute Workers (SINTRAISS), a representative
of the Office of the Attorney-General, two representatives of the International Labour
Organization (ILO), representatives of the following trade union federations: the
General Confederation of Workers (CGT), the CUT and the Confederation of Workers of
Colombia (CTC), and a representative of the Ministry of Labour met within the framework
of the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT) and
agreed, among other things: (i) to resolve 18 complaints concerning the reinstatement of
workers (who had been dismissed on 31 March 2015 through proceedings for the lifting of
immunity) by paying compensation equivalent to six months’ wages; and (ii) to review the
cases of the workers who were employed by the Institute as at 28 September 2012 and to
whom the retirement plan was not offered because they were deemed to be in
pre-retirement. Furthermore, in its communication of 12 August 2016, the Government
states that the legal proceedings brought by PARISS, with due regard for its legal and
contractual obligations concerning the dissolution, cancellation and liquidation of
SINTRAISS, resulted in an oral decision issued by the 35th labour circuit court of
Bogotá on 10 May 2016, which, in the absence of an appeal, was declared final. The
Government also reports that between March and July 2016, several meetings between
representatives of PARISS, the Office of the Attorney-General and the Office of the
Ombudsman were held and that a decision was taken to sign, in the presence of a labour
inspector, a conciliation agreement reflecting the agreement reached by the parties
regarding, specifically, the payment of a bonus to the people involved in these
proceedings.
Second case: the Cauca branch of ANTHOC
- 217. With regard to the allegations concerning the Cauca branch of
ANTHOC, the Government states that the office has informed it that a review of the
databases shows that no administrative complaints were brought and no preliminary
investigations into complaints by trade unions were conducted in 2014.
Third case: the Popayán office of ANTHOC
- 218. In its communication of 22 May 2015, the Government transmits the
hospital’s comments on the allegations made by the Popayán office of ANTHOC concerning
the alleged violation of the collective labour agreement, the worsening of labour
conditions, the dismissal of workers with trade union immunity without authorization
from the courts and the dissolution of the trade union.
- 219. According to the hospital, the collective labour agreement signed
with ANTHOC in 1994 is still in force and the trade union has not been dissolved. The
hospital also states that the aforementioned collective labour agreement applies to
non-career employees and does not cover workers who are legally classified as public
servants. With regard to the reclassification of non-career employees as public
servants, the hospital indicates that the legal principles established in Act No. 10
(1990), as ratified by Act No. 100/93, were followed and that these are public policy
standards; their implementation is compulsory and there can be no consultation
whatsoever in that regard. Section 26 of Act No. 10 (1990), the Social Security System
Organization Act, provides that: (i) posts may be either non-career or career; (ii)
career employees may be seconded to non-career posts without losing their career status
in the administration; and (iii) non-career employees are those who perform
non-management tasks in order to maintain a hospital’s physical plant or provide general
services in such an institution. The hospital also indicates that it requested the
lifting of trade union immunity as a consequence not of the reclassification of
non-career employees pursuant to Act No. 10 (1990), but of the restructuring plan.
- 220. Lastly, with regard to the allegation that the hospital refused to
implement the Council of State’s decision cancelling Agreement No. 124 (2001), through
which the hospital’s board had reclassified the non-career employees and thus denied the
benefits under the collective labour agreement to over 300 public servants, the
Government states that the Council of State’s decision declared the Agreement null and
void on grounds of non-competence since it is for Congress (by enacting legislation),
the Departmental Assembly (by issuing ordinances) and the Municipal Council (through
agreements) to establish the structure of the administration.
Fourth case: the Bolívar office of SINTRAELECOL
- 221. The Government states that the allegations concern events that
occurred 16 years ago and that, the workers were not dismissed; rather, they signed up
for a voluntary retirement plan approved by the Ministry of Labour. It also explains
that the Supreme Court confirmed the lower courts’ rulings in favour of the electricity
companies and did not state in any paragraph of its decisions “that the fact that
reinstatement was not possible does not relieve the electricity companies of the
obligation to pay compensation for dismissal …”. According to the Government, the
decisions on constitutionality make no mention of this matter.
- 222. The Government also emphasizes that SINTRAELECOL had, and still has,
a total of eight branches in the enterprise (Atlántico, Magdalena, Bolívar, Cesar, La
Guajira, Sucre, Córdoba and Magangué) both during and after the privatization.
Furthermore, there was a legal transfer of assets between these eight electricity
companies and the enterprise, which, in the field of labour relations, constitutes a
change of employer; in other words, the workers continued to enjoy all of the working
conditions established by agreement between SINTRAELECOL and each of the electricity
companies at the time of the privatization. Furthermore, seven collective labour
agreements for the period 2011–2015 were signed with seven trade unions in 2011; this
shows that the trade unions continue to play an important role within the
enterprise.
- 223. In its communication of 8 March 2016, the Government emphasizes that
the Committee on Freedom of Association has acknowledged that the right to strike can be
restricted or even prohibited in the case of the public service or essential services
and states that the Labour Chamber of the Supreme Court, in Decision No. SL11680-2014 of
30 July 2014, ruled that the work stoppage that ANTHOC carried out in several of the
country’s hospitals as from 20 August 2013 was unlawful. In that ruling, the Court
recalled that sections 48 and 49 of the Constitution establish the right to social
security and state that health care is an essential public service for which the State
is responsible and which, by law, must be provided with due regard for the principles of
efficiency, universality and solidarity. The Constitutional Court, among others, has
reiterated this position in its Decisions Nos CC C-473/94, CC C-450/95, CC C-122/12, CC
T-423/96 and T-586/99, concluding that strikes in hospitals and clinics are expressly
prohibited precisely because they provide an essential public service: health care.
- 224. In its decision, while acknowledging that emergency and
hospitalization services had been provided by all health centres, the Court considered
that the trade union had ignored the prohibition of a general work stoppage in the
sector on the grounds that the latter provides an essential public service. The Court
concluded that there had been a suspension of the services that the various hospitals
were required to provide in an uninterrupted, timely and effective manner and that this
had had an impact on the provision of an essential public service – health care – to
users who were unable to receive outpatient and specialized care; undergo scheduled
surgery; receive physical therapy, dental care and x-rays; use the pharmacy; or be
billed owing to ANTHOC’s call for a work stoppage with blatant disregard for the
provisions of section 450 of the Labour Code and section 56 of the Constitution, which
prohibits collective work stoppages in entities that provide an essential public
service.
C. The Committee’s conclusions
C. The Committee’s conclusions- 225. The Committee notes that in this case, the complainants allege that
during restructuring, liquidation and privatization, several public entities carried out
acts of anti-union discrimination and violated the right to bargain collectively in an
effort to cause the dissolution of four trade unions affiliated to the CUT: the National
Union of Social Security Workers (Sintraseguridad Social), the Cauca branch and the
Popayán office of the National Union of Health, Social Security and Allied Service
Workers and Public Servants of Colombia (ANTHOC) and the Union of Electricity Workers of
Colombia (SINTRAELECOL). The complainants also make allegations regarding a ruling that
a work stoppage carried out by ANTHOC in 2013 in several of the country’s hospitals was
unlawful.
- 226. The Committee observes that, in all four cases, the complainants
allege that: (i) the restructuring, liquidation or privatization of a public enterprise
was carried out without consulting with the trade unions concerned and in an effort to
cause their dissolution; and that (ii) while institutions have been established in order
to ensure respect for the right to organize, these bodies are not diligent in requiring
public enterprises to ensure prior consultation with the trade unions concerned; do not
respond quickly and effectively to petitions, complaints and requests concerning
anti-union discrimination; and do not have efficient mechanisms through which the
affected workers can enforce the payment of benefits not received owing to demotion or
dismissal and of compensation for unfair dismissal.
- 227. In that regard, the Committee takes note of the Government’s
statement that section 189 of the Constitution empowers the President of the Republic to
restructure, break up and establish new state-owned social enterprises and that the
Committee on Freedom of Association is not competent to consider dismissals such as
those arising from structural adjustment and flexibility programmes prompted by business
bankruptcies, closures or mergers. With regard to the concept of trade union immunity,
the Committee takes note of the Government’s statement that even though it is a
constitutional guarantee and court authorization for lifting such immunity must be
requested even during restructuring, it may be restricted during, for example, the
restructuring of public entities; and that the issue has been examined at length by the
Constitutional Court, which has recognized that limitations on trade union rights must
be reasonable and proportionate. The Committee also takes note of the Government’s
emphasis that the right of public servants’ trade unions to bargain with public entities
is not absolute; non-labour-related issues such as organizational structure, staffing,
administrative procedures, career advancement in the administration, disciplinary
proceedings and benefit systems are excluded from bargaining.
- 228. The Committee recalls that it can examine allegations concerning
economic rationalization programmes and restructuring processes, whether or not they
imply redundancies or the transfer of enterprises or services from the public to the
private sector, only in so far as they might have given rise to acts of discrimination
or interference against trade unions. In any case, the Committee can only regret that in
the rationalization and staff-reduction process, the government did not consult or try
to reach an agreement with the trade union organizations [see Digest of decisions and
principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para.
1079]. Noting that the Government, in its reply, makes no mention of the holding of
consultations with the complainants or other concerned trade unions regarding the impact
of the programmes for restructuring, liquidation and privatization of the four entities
mentioned in this case, the Committee requests the Government, in the future, to consult
the trade unions concerned with regard to the impact of restructuring programmes on
employment and of streamlining on employee working conditions.
- 229. With regard to the case of Sintraseguridad Social and the allegation
that of the Institute’s workers who had been dismissed in 2006 in violation of their
trade union immunity and were prevented from entering the enterprise, only a few union
officials won reinstatement through court rulings, the Committee takes note of the
Government’s statement that: (i) a total of 535 unionized and non-unionized workers
signed up for the voluntary retirement plan for all workers employed by the entity as at
28 September 2012, with the exception of those who were in pre-retirement; (ii) prior to
the end of the liquidation process, the liquidator deposited the remaining funds owed to
all workers who had been dismissed and were parties to the reinstatement appeal in the
Social Security Institute Liquidation Reserve Fund (PARISS) and since the court could
not order reinstatement with an entity that no longer existed, it ordered the payment of
compensation; (iii) on 8 October 2015, representatives of PARISS and the Union of Social
Security Institute Workers (SINTRAISS), a representative of the Office of the
Attorney-General, two representatives of the International Labour Organization (ILO),
representatives of the following trade union federations: the CGT, the CUT and the CTC,
and a representative of the Ministry of Labour met within the framework of the Special
Committee for the Handling of Conflicts referred to the ILO (CETCOIT) and agreed, among
other things, to resolve 18 complaints concerning the reinstatement of workers (who had
been dismissed on 31 March 2015 through proceedings for the lifting of immunity) by
paying compensation equivalent to six months’ wages and to review the cases of the
workers to whom the retirement plan had not been offered because they had been deemed to
be in pre-retirement; and (iv) in March and July 2016, several meetings between
representatives of PARISS, the Office of the Attorney-General and the Office of the
Ombudsman were held and it was agreed that a bonus would be paid to the people involved
in these proceedings.
- 230. While noting with interest the agreements reached with the trade
union federations within the framework of the CETCOIT, the Committee observes that these
agreements concern the workers who were employed by the Institute as at 28 September
2012; thus, it appears that they do not address the situation of the workers who are
alleged to have enjoyed trade union immunity and been unlawfully dismissed in 2006. In
these circumstances, the Committee requests the Government to send its observations
regarding the situation of the workers who, according to the complainants, enjoyed trade
union immunity and were unlawfully dismissed in 2006 and thus could not be offered the
retirement plan because they were not employed by the Institute as at 28 September
2012.
- 231. With regard to the case of the Cauca office of ANTHOC, the Committee
takes note of the allegation that: (i) the workers who enjoyed trade union immunity were
dismissed from the office on 12 December 2007 without court authorization for the
lifting of immunity and that, for this reason, they submitted an administrative appeal
to the office on 12 February 2008, requesting reinstatement; and (ii) although all
career public servants in the field of administration were granted compensation for the
abolition of posts during the liquidation, this compensation was not granted to public
servants on temporary contracts, some of whom had accrued over 30 years of service; they
brought an administrative complaint before the Ministry of Labour, to which they
received no reply, and an appeal for annulment of the administrative decisions, in which
the case was closed. In that connection, the Committee takes note of the Government’s
statement that, according to the office, a review of the databases shows that no
administrative complaints were brought and no preliminary investigations into complaints
by trade unions conducted in 2014. The Committee observes that the complainants’
communications do not show that the workers brought before the courts an appeal against
the lifting of trade union immunity. The Committee also observes that while the
complainants allege that the workers on temporary contracts were not compensated for the
abolition of their posts, they do not state that this lack of compensation was limited
to trade union members or that some workers on temporary contracts might have been
denied compensation because they were union members. In these circumstances, the
Committee will not pursue its examination of these allegations.
- 232. With regard to the case of the Popayán office of ANTHOC, the
complainants allege that:(i) through Agreement No. 124 (2001) of 24 August 2001, the
hospital’s board reclassified the hospital’s non-career employees, thus depriving them
of benefits under a collective labour agreement signed in 1994; (ii) the purpose of this
reclassification was to cause the trade union’s dissolution, particularly in the light
of the fact that, that after ceasing to apply the agreement, the hospital dismissed 116
workers, all of whom were members of the trade union, without compensation for unfair
dismissal or abolition of post; (iii) although the Administrative Disputes Chamber of
the Council of State, in a decision issued on 26 July 2012, annulled Agreement No. 124
of 24 August 2001, the hospital has refused to implement this decision; and (iv) on 6
February 2013, the Popayán office of ANTHOC brought an administrative complaint in
respect of these events before the Ministry of Labour and that the case was closed on
the grounds that the Ministry was not competent to consider it.
- 233. In that regard, the Committee notes that the Government has
transmitted the hospital’s observations to the effect that: (i) the collective labour
agreement signed with ANTHOC in 1994 is still in force, but it applies only to
non-career employees since it cannot not cover workers who are legally classified as
public servants; (ii) with regard to the reclassification of workers as non-career
employees and public servants, the legal principles established in Act No. 10 (1990), as
ratified by Act No. 100/93, were followed; these are public policy standards, their
implementation is compulsory and there can be no consultation whatsoever on their
implementation; and (iii) the Council of State declared the hospital board’s Agreement
No. 124 of 24 August 2001 null and void on grounds of non-competence since it is for
Congress (by enacting legislation), the Departmental Assembly (by issuing ordinances)
and the Municipal Council (through agreements) to establish the structure of the
administration. While taking note of the Government’s observations, the Committee
observes that the Government has not replied to the allegation regarding the hospital’s
refusal to implement the decision of the Administrative Disputes Chamber of the Council
of State and requests it to do so. With respect to the status of more than 100 workers
who, according to the allegation, were members of the union and were dismissed without
compensation for unfair dismissal or abolition of post, the Committee requests the
complainants to specify their names so that the Government can provide its observations
on the matter.
- 234. With regard to the Bolívar office of SINTRAELECOL, the Committee
takes note of the complainants’ allegation that: (i) during the privatization of the
state-run electricity companies between 1998 and 2000, misleading voluntary retirement
plans that amounted to unfair and unlawful dismissal were developed; (ii) the
electricity companies failed to follow the procedure for the dismissal of workers that
was set out in the collective labour agreement, as a result of which the workers
appealed to the labour courts for reinstatement; and (iii) the Supreme Court, in its
ruling, ignored the collective labour agreement and ruled that since reinstatement was
impossible because the posts had been abolished, the electricity companies must pay
compensation for dismissal, which, to date, they have not done. On this point, the
Committee takes note of the Government’s statement that: (i) these events occurred 16
years ago and the electricity companies did not dismiss the workers, rather, they signed
up for a voluntary retirement plan approved by the Ministry of Labour; and (ii) the
Supreme Court did not state in any paragraph of its ruling that the fact that
reinstatement was not possible did not relieve the electricity companies of the
obligation to pay compensation for dismissal. The Committee observes that although the
complainants allege that the Supreme Court did not take into account the collective
labour agreement regulating the grounds for dismissal, the Government states that the
Court considered that the provisions of the agreement were not applicable in the case of
voluntary retirement. The Committee therefore observes that this issue concerns the
applicability of a collective labour agreement’s provisions on dismissal and, since it
is for the national courts to take decisions on such matters, the Committee will not
pursue its examination of this allegation.
- 235. With regard to the allegations concerning the ruling that a work
stoppage carried out by ANTHOC was unlawful, the Committee notes that: (i) the
complainants and the Government state that while the court of first instance did not
declare that the work stoppage, carried out as from 20 August 2013 in several of the
country’s hospitals, was illegal because it had had no impact on the provision of
health-care services, the Labour Chamber of the Supreme Court, in a decision issued on
30 July 2014, recalled that sections 48 and 49 of the Constitution establish that health
care is an essential public service for which the State is responsible and which, by
law, must be provided with due regard for the principles of efficiency, universality and
solidarity; and that, as the Constitutional Court has reiterated in its Decisions Nos CC
C-473/94, CC C-450/95, CC C-122/12, CC T-423/96 and T-586/99, strikes in hospitals and
clinics are expressly prohibited precisely because they provide an essential public
health service: health care; (ii) the complainants state that, since the Court’s ruling
that it was unlawful to strike, ANTHOC’s members have been potentially at risk since the
various employers may initiate disciplinary proceedings against union officials,
seeking sanctions such as the suspension or dismissal of workers; (iii) recalling
Decision No. C-796/2014 of the Constitutional Court (urging Congress to address the
issue of the right to strike in the specific petroleum sector within two years), the
complainants request that measures be taken to ensure that: the provision of minimum
services during strikes against enterprises that provide essential public services
stricto sensu is ensured and that no disciplinary proceedings against ANTHOC members for
having exercised the right to strike or protest are initiated or continued; and (iv) the
Government, for its part, maintains that the Committee on Freedom of Association has
acknowledged that the right to strike may be restricted, including in the case of the
public service or essential services.
- 236. The Committee observes that the allegations concern the health-care
sector and recalls that the right to strike may be restricted or prohibited in the
hospital sector, which is considered to be an essential service [see Digest, op. cit.,
para. 585]. Furthermore, while taking note of the allegation that, since the Supreme
Court’s ruling that it was unlawful to strike, ANTHOC’s members have been potentially at
risk since the various employers may initiate disciplinary proceedings against union
officials, seeking sanctions such as the suspension or dismissal of workers, the
Committee observes that the complainants have not alleged that there have been any
suspensions or dismissals since the ruling that the strike was unlawful, which was
issued three years ago. In these circumstances, while recalling that where the right to
strike is restricted or prohibited in certain essential undertakings or services,
adequate protection should be given to the workers to compensate for the limitation
thereby placed on their freedom of action with regard to disputes affecting such
undertakings and services [see Digest, op. cit., para. 595], the Committee will not
pursue its examination of this allegation.
The Committee’s recommendations
The Committee’s recommendations- 237. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee
requests the Government, in the future, to consult the trade unions concerned
regarding the impact of restructuring programmes on employment and of streamlining
on employee working conditions.
- (b) The Committee requests the Government to
provide its observations on the status of the workers who, according to the
complainants, enjoyed trade union immunity and were unlawfully dismissed in 2006 and
thus could not be offered the retirement plan because they were not employed by the
Institute as at 28 September 2012.
- (c) The Committee requests the Government
to provide its observations on the hospital’s refusal to implement the Council of
State’s decision. Furthermore, with regard to more than 100 workers who, according
to the allegation, were all members of the union and were dismissed without
compensation for unfair dismissal or abolition of post, the Committee requests the
complainants to specify their names so that the Government can provide its
observations on the matter.
