Informe provisional - Informe núm. 129, 1972

Caso núm. 514 (Colombia) - Fecha de presentación de la queja:: 03-ABR-67 - Cerrado

1. 101. The Committee examined this case at its meetings in November 1967 and February 1968 and submitted to the Governing Body the two interim reports to be found in paragraphs 453 to 471 of its 101st Report and paragraphs 208 to 227 of its 103rd Report. These were approved by the Governing Body at its 170th Session (November 1967) and 171st Session (February-March 1968), respectively.
2. 102. Examination of certain of the allegations relating to the denial of legal personality to the Trade Union Confederation of Workers of Colombia (CSTC) had been adjourned in connection with which the Committee had requested additional information from the Government. It repeated this request on a number of occasions, while postponing its examination of the case. The ILO received this information from the Government on 20 December 1971.
3. 103. Colombia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 104. Recapitulating this aspect of the case, it will be recalled that the complainants alleged that the Ministry of Labour's Resolution No. 0475 of 14 March 1967 denied legal personality to the CSTC, contrary to the provisions of the national Constitution and the right of trade union organisations to establish Confederations. The first request for the granting of legal personality was submitted in May 1964, but rejected by the Government two years later when the CSTC resubmitted it at its second congress in July 1966. The complainants claimed that the real reason for the refusal of legal personality was based on ideological considerations and, in particular, on information supplied by the secret police.
2. 105. In its reply, the Government declared that legal personality had been refused to the CSTC, firstly, because the requirements of section 422 of the Labour Code had not been fulfilled and, secondly, because its proposed by-laws infringed section 417 of the Code. Furthermore, according to reports from the state security service, the aims of the CSTC were inconsistent with the functions recognised by law as being appropriate to trade unions and were incompatible with section 379 of the Code, which prohibits trade unions of any type from promoting or supporting campaigns or movements which disregard, either collectively or through individual members, legal precepts or action taken by the lawful authorities. In addition, certain members of the Executive Committee and of the member organisations of the CSTC were in prison on charges of activities designed to upset the public order.
3. 106. At its November 1967 meeting, the Committee recommended the Governing Body to request the Government to supply more detailed information concerning infringement of sections 417 and 422 of the Labour Code, and on the activities which constituted an additional justification for the refusal to grant legal personality. In its communication of 5 January 1968, the Government confined itself to stating that an appeal against the Ministry's resolution was before the Council of State, an independent body which could quash the resolution if it found a legal flaw in it.
4. 107. At its meeting in February 1968, the Committee considered that the Council of State's ruling might make available information that would be useful in examining the case, and it therefore recommended the Governing Body to request the Government to be good enough to forward the text of the ruling, and the reasons adduced therein, as soon as it was given.
5. 108. On 20 December 1971 the Government made the following information available to the ILO. As the CSTC had not been granted legal personality when it was first constituted, the organisations concerned had set up a new Confederation in July 1966. On 14 March 1967 the Ministry of Labour issued a resolution rejecting the new request for legal personality. An appeal against this resolution was lodged but the Ministry confirmed its ruling by means of a further resolution dated 10 April 1967. The Ministry cited a number of reasons in support of its ruling.
6. 109. Firstly, section 417 of the Labour Code provided that only a trade union, and not a Confederation, could call a strike; however, under its by-laws the CSTC had the right to call a strike. Secondly, it was laid down in section 422 of the Code that members of the executive of a federation or Confederation must, at the time of their election, have been engaged in the trade or occupation concerned for more than a year, and there was no evidence of this in the supporting documents submitted by the CSTC when requesting the grant of legal personality. As to section 379 of the Code, the text of which is referred to in paragraph 105 above, the Ministry of Labour's resolutions stated that the decisions of the CSTC's constituent congress were an open incitement to disregard the law of the land and the decisions of the lawful authorities. Finally, with respect to the arrest of the leaders of the CSTC and its affiliated organisations, the Ministry stated that section 353 of the Code made the Government responsible for the inspection and supervision of trade union activities to ensure the maintenance of law and order; it was therefore impossible to grant legal personality to an organisation containing members against whom there was grave suspicion that they were committing offences against the peace.
7. 110. An appeal to quash the Ministry of Labour's resolutions was lodged with the Council of State. The evidence was submitted to that body in October 1967 but its verdict had still not been given.
8. 111. Furthermore, according to the Government, various federations met on 2 December 1970 for the purpose of reconstituting the CSTC. Shortly after, a request for recognition of legal personality was submitted and had been pending since June 1971. To date, the Ministry of Labour had not taken any decision on it.

B. B. The Committee's conclusions

1. 112. As was pointed out previously, the case before the Committee involves the principle that workers' organisations have the right to establish and join federations and Confederations, and the principle that the acquisition of legal personality by workers' organisations, federations and Confederations should not be made subject to conditions of such a character as to restrict this right. In this respect, the Committee recalls that it previously took the view, in one of its first cases, that the formalities prescribed by national regulations concerning the Constitution and functioning of workers' organisations were compatible with the provisions of Convention No. 87, provided that the provisions in such regulations did not infringe the guarantees laid down in the Convention. The Committee also upheld the view that a requirement that union rules should comply with national statutory requirements did not constitute a violation of the generally accepted principle that workers' organisations should have the right to draw up their Constitutions and rules in full freedom, provided that such statutory requirements did not infringe the principle of freedom of association.
2. 113. On this basis and in line with the principle, stated in Article 6 of Convention No. 87, whereby Confederations should have the same rights under the Convention as those enjoyed by workers' organisations, the Committee considers it necessary to make the following points. In regard to section 417 of the Labour Code, the Committee has already pointed out on another occasion, in the case of similar legislation, that to prohibit federations and Confederations from calling a strike was not compatible with Article 3 of the Convention, which provides that trade union organisations should have the right " to organise their administration and activities and to formulate their programmes ", while the public authorities should refrain " from any interference which would restrict this right or impede the lawful exercise thereof ". With respect to the provisions of section 422 of the Code, which require that trade union leaders should, at the time of their election, have been engaged in the occupation or trade concerned for more than a year, the Committee considers that they are not in harmony with Article 3 of the Convention, which recognises the right of workers' organisations to elect their representatives in full freedom.
3. 114. As to the third reason given by the Ministry of Labour for the denial of legal personality to the CSTC, i.e. that the decisions of the CSTC's constituent congress were an open incitement to disregard the law of the land and the decisions of the lawful authorities, thus violating section 379 of the Labour Code, the Committee is unable to pass judgement without seeing the texts of the decisions, which have not been communicated by the Government. However, in this respect the Committee considers it appropriate to recall the provision of Article 8 of Convention No. 87 which states that " In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land."
4. 115. Lastly, with respect to the fourth reason given by the Ministry of Labour, viz. the arrest of leaders of the CSTC and of its affiliated organisations because there was grave suspicion that they were committing offences against the peace, the Committee recalls the view expressed by the Committee of Experts on the Application of Conventions and Recommendations which the Committee has already quoted in a previous case. As the Committee of Experts stated, normal control of the activities of trade unions should be effected a posteriori and by the judicial authorities; and the fact that an organisation which sought to enjoy the status of an occupational organisation might in certain cases engage in activities foreign to trade union activities did not appear to constitute sufficient reason for subjecting trade union organisations a priori to control with respect to their composition and with respect to the composition of their management committees. On that occasion the Committee drew attention to the fact that refusal to register a union because the authorities, in advance, and of their own independent judgement, considered that it might be politically undesirable, would seem tantamount to submitting registration, which was compulsory and without which a union could not lawfully exist, to previous authorisation on the part of the authorities, which is not compatible with the provisions of Convention No. 87. In the present case, the Committee takes the view that if there is grave suspicion that trade union leaders have committed acts which are punishable by law, they should be subject to normal legal proceedings in order to determine the extent of their liability, and that arrest should not in itself constitute an obstacle to the granting of legal personality to the organisation concerned.
5. 116. The Committee observes that meanwhile the CSTC was constituted for the third time at the end of 1970 and has again requested recognition of its legal personality, but despite the lapse in time this still has not been granted. Although the Committee is unaware of the reasons for the delay, it points out that more than a year has passed since the relevant proceedings were initiated and that the ruling of the Ministry of Labour has been pending for more than six months. The Committee points out, as it did in another case concerning Colombia, that while it is true that the founders of a trade union must comply with the formalities prescribed by legislation, these formalities should not be of such nature as to hamper freedom to form organisations.

The Committee's recommendations

1. 117. In these circumstances, the Committee recommends the Governing Body:
   • (a) to draw the attention of the Government to the principles and observations set forth in paragraphs 112 to 116 above, and in particular to the fact that the statutory formalities to be complied with by the founders of a trade union organisation should not be such as to hamper freedom to form organisations;
   • (b) to request the Government to be good enough to provide information on the resolution concerning the new request for the granting of legal personality submitted by the Trade Union Confederation of Workers of Colombia (CSTC);
   • (c) to take note of the present interim report, it being understood that the Committee will submit a further report as soon as it is in possession of the information requested in the previous subparagraph.