Informe definitivo - Informe núm. 358, Noviembre 2010

Caso núm. 2644 (Colombia) - Fecha de presentación de la queja:: 10-ABR-08 - Cerrado

Allegations: (1) The National Union of Food Workers (SINALTRAINAL) alleges the dismissal of three workers protected by trade union immunity, the suspension of the employment contract of a trade union official, refusal to bargain collectively and failure to apply the collective agreement in force; (2) the General Confederation of Workers (CGT) alleges collective dismissal on grounds of restructuring, of cleaning staff at the University of Caldas, and the collective dismissal of 31 workers of the Trade Union of Official Workers of Armenia Quindío Municipality (SINTRAMUNICIPIO)

1. 362. The Committee last examined this case at its November 2009 meeting at which time it submitted an interim report to the Governing Body [see 355th Report, approved by the Governing Body at its 306th meeting (November 2009), paras 521–552].
2. 363. The Government sent its observations in communications dated 14 July and 3 and 14 September 2010.
3. 364. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 365. On examining this case at its November 2009 meeting, the Committee made the following recommendations [see 355th Report, para. 552]:
2. (a) As regards the allegations made by SINALTRAINAL concerning the dismissal of Fajardo Rueda and the company’s refusal to bargain collectively, the Committee requests the Government to keep it informed of the judicial proceedings still under way and any developments with regard to the Government’s invitation to refer these pending issues to the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT).
3. (b) As regards the allegations concerning the dismissal of the workers at the University of Caldas as part of a restructuring process, which resulted in the disappearance of the Trade Union of Employees and Workers of Caldas University, the Committee requests the Government to indicate whether the workers’ trade union rights were respected during the process of restructuring.
4. (c) As regards the allegations presented by the CGT concerning the collective dismissal in November 2001 of 31 workers of the Trade Union of Official Workers of Armenia Quindío Municipality, without regard to the collective agreement in force which guarantees employment security for the workers, the Committee notes the Government’s failure to send its observations, and requests it to do so without delay.
5. B. The Government’s reply
6. 366. In its communication of 14 July 2010, the Government states that, as a result of the work carried out by a preliminary contacts mission which visited the country in July 2010, SINALTRAINAL and the enterprise Lechesan SA reached an agreement under which they declared that: (1) a pre-agreement had been signed regarding the conclusion of a new collective labour agreement to be signed and registered on 13 July 2010; (2) the parties undertook to continue to negotiate in good faith in order to ensure the development of collective relations within the enterprise; (3) they had agreed to establish a permanent dialogue forum on labour relations to address any matters of common interest, for example, issues regarding recruitment or paid leave for trade unionists (this forum can also be turned to with regards any allegations of violation of trade union rights); and (4) SINALTRAINAL was to renounce the complaint presented to the Committee on Freedom of Association.
7. 367. In its communications of 3 and 14 September 2010, the Government indicates that the University of Caldas informed the Ministry of Social Protection, on 9 March 2007, that a wide consultation with trade union representatives had taken place regarding the technical study on modernization and restructuring of the organization and administrative staff. The Government adds that, in August 2007, all of the relevant members of the trade union organizations, along with the entire staff of the university, were informed of the recommendations and conclusions of the technical study carried out by the Higher School of Public Administration (ESAP) and the Higher Education Development Fund (FODESEP) regarding the organic structure and technical staff. Furthermore, the abovementioned study was published on the university’s website in August 2007. The Government states that it was clearly established that the trade union organization would be participating in the restructuring process.
8. 368. As to the allegations pending regarding the collective dismissal of 31 workers of SINTRAMUNICIPIO in November 2001, the Government states that the national constitution makes provision for processes aimed at modernizing the Colombian State through the improvement of activities carried out by public bodies in order to accomplish the essential objectives of the State while respecting the principles of effectiveness, efficiency and timeliness.
9. 369. In this regard, the Government states that, in a ruling of the Labour Decision Chamber of the Superior Court of Armenia (file No. 2003-2008), reporting judge Luís Fernando Dussán referred to a ruling of 17 July 1998, in which reporting judge Dr Rafael Méndez Arango stated: “It would not make sense, on the one hand, in accordance with constitutional powers and through legal acts fully in force, to order the restructuring of a local authority and the abolition of posts while on the other hand to have a legal ruling determining the re-establishment of the employment contracts terminated under that authorization, because such a decision, as well as causing administrative problems and not being viable given the lack of substance (the posts no longer physically exist), would involve the disregard of these precise constitutional powers, the exercise of which in no case may be suspended, much less subordinated to certain eventualities which might arise from the existing labour relations with those working for the bodies whose restructuring has been ordered by law”.
10. 370. As to the CGT’s complaint regarding the collective dismissal of 31 workers of SINTRAMUNICIPIO, the Government states that the Mayor of Armenia initiated the fiscal consolidation of the local authority through Municipal Decree No. 098 of 2001, which provided for the abolition of 33 posts and the unilateral termination of an equal number of employment contracts. As a result of this decision only 12 members of the trade union remain on the payroll of the municipality, with 29 of them having been removed from their posts as a result of the restructuring process. As to the reorganization of the organic structure of the municipal staff, ordered through Municipal Decree No. 098, the aim of the decree is not to affect the legal existence of a trade union (thus committing anti-union persecution). Rather, the local authority is obliged to make progress regarding the modernization process set out by the Government through Act No. 617 of 2000 and to carry out restructuring in order to render public service provision more effective and efficient thereby controlling spending within the criteria of rationality, proportionality and the prevalence of the general interest.
11. 371. In the light of the guidelines set out under Act No. 617 of 2000 and the Transfers Act, Act No. 715 of 2001, the abolishment of posts under the austerity policy cannot be disguised under another name. There are no grounds for the claims that an attempt was made to destroy the trade union through a massive wave of dismissals with compensation. With regard to the present case, the municipality of Armenia issued municipal decree No. 098 of 2001 based on the requirements set out under Act No. 617 of 2000 regarding fiscal consolidation, and therefore there were no ulterior motives behind the action.
12. 372. The Government adds that, furthermore, a public conciliation hearing was held between the municipal mayor and the official workers before the Local Directorate of the Ministry of Social Protection, at which the workers freely and voluntarily expressed their intention to terminate the contractual employment relationship with the municipality of Armenia as of the date of the signing of the agreement. The municipality of Armenia recognized the anticipated right of the employees to receive their retirement pensions in the corresponding amounts and agreed to pay the pension up until the moment when the workers qualify under law for the State old-age pension, paid for through social security or the respective body to which they are linked at that time. Thus, the conciliatory agreement creates res judicata with regards the termination by mutual agreement of the employment relationship and the recognition of the anticipated retirement pension under the terms agreed and therefore actions cannot be initiated which would encompass the points already agreed on. However, the trade union filed an ordinary labour claim with the Labour Court of the Armenia Circuit, with the latter finding against the plaintiffs.
13. 373. In this regard, the Government considers it appropriate to transcribe a few paragraphs of the ruling (file No. 2003-2008) issued by reporting judge Luís Fernando Dussán of the Labour Decision Chamber of the Superior Court of Armenia, upholding the ruling issued by the Second Labour Court of the Circuit on 6 December 2002:
14. The plaintiffs’ claim that the dismissals carried out by the municipality of Armenia “had a significant effect on the structure of the trade union organization, constituting an act of trade union persecution ...” (fifth paragraph of page 250 of the first file).
15. With regard to this matter, the Chamber wishes to point out that the Political Constitution of 1991 establishes as a fundamental guarantee of the workers and employers the possibility of establishing or creating trade union associations, free of State intervention, and only subject to the legal system and the provisions of their statutes, but it must also be understood that the right referred to here is not absolute, given that although it essentially covers those workers coming together to achieve better working conditions that will allow them to obtain labour justice within a spirit of economic cooperation and social equilibrium, this right cannot be allowed to obstruct the process of reorganization of the State. In this case, the municipality of Armenia is not attempting to disregard the rights of the workers to continue to associate within the trade union movement. Basically, the administration was seeking to optimize its administrative activities while using fewer resources. Consequently, the aims of the State take precedence over this worker-specific right when the State’s objective is to protect the general interest.
16. The Honourable Constitutional Court has stated on a number of occasions that the structure of the public administration is not untouchable, but rather that it can be subject to reforms, including the adaptation of the physical infrastructure and staff, and for this reason the State is not obliged to maintain posts occupied by its employees ad infinitum, given that there may exist reasons and situations which justify the abolition of said posts and given that the aim of the changes is to ensure the general satisfaction of the public while guaranteeing effective and efficient public services.
17. 374. Finally, the Government states that as a result of the dismissals and the consequent loss of membership base, the trade union organization does not have the minimum number of members required under section 359 of the Substantive Labour Code (CST) which states that any worker trade union must have no less than 25 members in order to be established or if it is to survive as an entity. For this reason, the Labour Court of the Armenia Circuit, through a ruling, stated that there were grounds for the dissolution of the trade union under section 401(d) of the CST: “(d) For reduction of membership to less than twenty-five (25) members, in the case of a workers’ trade union”. Consequently, the trade union was liquidated and dissolved by judicial proceedings, through a ruling dated 31 July 2002, upheld in the second instance on 15 December 2004. The ruling was implemented and resulted in the cancelation of the trade union’s registration before the Ministry of Social Protection, through resolution No. 003144 of 14 September 2005, eliminating the legal identity of SINTRAMUNICIPALES. Thus, the trade union officials and other members of the trade union covered by trade union immunity will lose this protection, given the fact that the trade union organization has been dissolved and that only two official workers who, to date, continue to work for the municipality of Armenia enjoyed this right.

C. The Committee’s conclusions

1. 375. The Committee recalls that on examining this case at its November 2009 meeting, it requested the Government: (1) as regards the allegations made by SINALTRAINAL concerning the dismissal of Fajardo Rueda and the company’s refusal to bargain collectively, to keep it informed of the judicial proceedings still under way and any developments with regard to the Government’s invitation to refer these pending issues to the CETCOIT; (2) as regards the allegations concerning the dismissal of the workers at the University of Caldas as part of a restructuring process, which resulted in the disappearance of the Trade Union of Employees and Workers of Caldas University, to indicate whether the workers’ trade union rights were respected during the process of restructuring; (3) as regards the allegations presented by the CGT concerning the collective dismissal in November 2001 of 31 workers of SINTRAMUNICIPIO, without regard to the collective agreement in force which guarantees employment security for the workers, to send its observations [see 355th Report, para. 552].
2. 376. As to the allegations presented by SINALTRAINAL, the Committee notes with satisfaction that having benefited from a preliminary contacts mission carried out in July 2010 within the framework of the Committee procedure, SINALTRAINAL and the enterprise Lechesan SA concluded an agreement in which they stated that: (1) a pre-agreement had been signed regarding the conclusion of a new collective labour agreement to be signed and registered on 13 July 2010; (2) the parties undertook to continue to negotiate in good faith in order to ensure the development of collective relations within the enterprise; (3) they had agreed to establish a permanent dialogue forum on labour relations to address any matters of common interest, for example, issues regarding recruitment or paid leave for trade unionists (this forum can also be turned to with regards any allegations of violation of trade union rights); and (4) SINALTRAINAL was to renounce the complaint presented to the Committee on Freedom of Association.
3. 377. As to the allegations regarding the dismissal of the workers of the University of Caldas within the framework of a restructuring process, the Committee notes that the Government states that the University of Caldas reported that, in March 2007, a wide consultation with trade union representatives had taken place on that issue and that, in August 2007, all of the relevant members of the trade union organizations, along with the entire staff of the university, were informed of the recommendations and conclusions of the technical study carried out by ESAP and the FODESEP regarding the organic structure and technical staff.
4. 378. As regards the allegations presented by the CGT concerning the collective dismissal in November 2001 of 31 workers of SINTRAMUNICIPIO, without regard to the collective agreement in force which guarantees employment security for the workers, the Committee notes that the Government states that: (1) the mayor of Armenia initiated the fiscal consolidation of the local authority through Municipal Decree No. 098 of 2001, leading to the abolition of 33 posts and the unilateral termination of an equal number of employment contracts; (2) this decision affected 29 trade union members, with only 12 members of the trade union remaining on the payroll of the municipality; (3) the aim of the reorganization of the organic structure of the municipal staff, ordered through Municipal Decree No. 098, was not to affect the legal existence of a trade union and thus committing anti-union persecution, rather, the local authority was obliged to undertake the modernization process set out by the Government through Act No. 617 of 2000 and to carry out restructuring in order to render public service provision more effective and efficient, thereby controlling spending within the criteria of rationality, proportionality and the prevalence of the general interest; (4) a public conciliation hearing was held between the municipal mayor and the official workers before the local directorate of the Ministry of Social Protection, at which the workers freely and voluntarily expressed their intention to terminate the contractual employment relationship with the municipality of Armenia as of the date of the signing of the agreement; (5) despite this agreement, the trade union filed a claim with the labour courts of the Armenia Circuit, with the latter finding against the plaintiffs; and (6) it was decided that there were grounds for the dissolution of the trade union under section 401(d) of the CST (reduction of membership base to less than twenty-five (25) members). Consequently, the trade union was liquidated and dissolved by judicial proceedings, through a ruling dated 31 July 2002, upheld in the second instance on 15 December 2004. The ruling was implemented and resulted in the cancellation of the trade union’s registration before the Ministry of Social Protection, through Resolution No. 003144 of 14 September 2005, eliminating the legal identity of the trade union.
5. 379. The Committee observes that the allegations relating to the University of Caldas and the municipality of Armenia, Quindío, refer to the dismissal of trade unionists as the result of restructuring processes and that the information provided does not suggest that these processes were anti-union in nature. On previous occasions, the Committee has highlighted the principle that rationalization and staff reduction processes should involve consultations or attempts to reach agreement with the trade union organizations to discuss the consequences of restructuring programmes on the employment and working conditions of employees. The Committee takes note that the Government states that it carried out these consultations.
6. 380. Under these circumstances, in the absence of any new information in relation to the allegations regarding SINTRAMUNICIPIO (in the city of Armenia Quindío in 2001), the Committee will not pursue its examination of these allegations.

The Committee's recommendations

1. 381. In the light of its foregoing conclusions, the Committee invites the Governing Body to consider that this case does not call for further examination.