Rapport intérimaire - Rapport No. 101, 1968

Cas no 490 (Colombie) - Date de la plainte: 09-NOV. -66 - Clos

1. 299. This case was considered by the Committee at its meeting in May 1967, when it submitted to the Governing Body its interim conclusions on the case contained in paragraph 46 of its 99th Report. The Governing Body approved these recommendations at its 169th Session (June 1967).
2. 300. Certain of the allegations were the subject of a final recommendation by the Committee. The following paragraphs refer only to the allegations which remained outstanding.
3. 301. By a communication dated 30 May 1967 the Government furnished its observations on certain of the allegations in the complaint. Subsequently, by a communication dated 14 August 1967, the Government supplied certain information requested by the Governing Body.
4. 302. Colombia has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Allegations relating to Legislative Decree No. 939 of 20 April 1966

1. 303. When it considered this aspect of the case at its meeting in May 1967 the Committee, having examined allegations to the effect that Legislative Decree No. 939 of 20 April 1966, which puts certain restrictions on the right to strike, was a violation of trade union rights, recommended the Governing Body:
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3. (b) in respect of the allegations relating to the provisions of Legislative Decree No. 939 of 20 April 1966, to suggest to the Government that it may care to reconsider the provisions of sections 2 and 3 of that decree in the light of the principles and considerations set forth in paragraphs 39 to 41 above, and to request the Government to be good enough to inform the Governing Body of the action it intends to take in this connection.
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5. 304. In its communication dated 14 August 1967 the Government firstly reiterates the general considerations relative to Legislative Decree No. 939, which it had set out in its previous communication of 10 April 1967, namely that the decree was accepted by the two representative central workers' organisations and that the introduction of such provisions had been beneficial to society. The Government adds that experience has shown that the decree in no way restricts the possibilities of action by trade union organisations.
6. 305. The Government goes on to comment on the concept of " essential services ". In this connection the Committee had pointed out in paragraphs 39 to 41 of its 99th Report that certain restrictions on the right to strike might be admissible in essential services subject, however, to adequate safeguards. The Government states:
7. Lastly, might it not be worth while to inquire what kind of services could be considered nonessential in a developing country? Would it not be correct to say that in such a country, waging a real war against poverty, sickness and social injustice, all services are essential ?
8. 306. Recalling that it has always held that allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights, the Committee, while noting the information contained in the communication, wishes to confirm the view that it previously reached in this connection, namely that a prohibition such as is contained in the decree in question may sometimes constitute a considerable restriction of the potential activities of trade unions and hence run counter to the generally accepted principles of freedom of association.
9. 307. The Committee does not consider that the information contained in the Government's communication alters in any way the conclusions reached by it when it previously considered the case. Accordingly, the Committee recommends the Governing Body:
10. (a) to draw the Government's attention to the fact that a restrictive provision such as that contained in Legislative Decree No. 939 of 20 April 1966 may sometimes constitute a considerable restriction of the potential activities of trade unions and hence run counter to the generally accepted principles of freedom of association;
11. (b) to suggest to the Government that it may care to reconsider the provisions of sections 2 and 3 of Legislative Decree No. 939 in the light particularly of the above principle, and to request the Government to be good enough to inform the Governing Body of the action it intends to take in this connection.
12. Allegations relating to the Dismissal of Trade Union Members
13. 308. When it previously considered the case in May 1967, the Committee had before it allegations that the firm of Hermega, when authorised by the Government to dismiss 30 per cent of its personnel, chose to dismiss trade union members in preference to other workers. Certain other allegations relating to anti-union activities on the part of the firm in question had also been made. In addition, allegations had been made relating to the anti-union attitude of the Ministry of Labour and its local offices. Not having received at the time of its meeting in May 1967 the Government's observations on these allegations, the Committee requested the Government to be good enough to furnish its observations, pending the receipt of which it adjourned its consideration of this aspect of the case.
14. 309. The Government furnished its observations on the above allegations by its communication dated 30 May 1967.
15. 310. In this communication the Government declares that the reduction in personnel at the firm of Hermega was authorised by the Government, under section 40 of Decree No. 2351 of 1965, on account of financial factors connected with the functioning of the undertaking; the authorisation followed investigations into the justification of the firm's request to be permitted to reduce personnel. The Government states that, although provisions relating to large-scale dismissals do not require the making of a recommendation by the Ministry concerning non-dismissal of trade union members, the Government's authorisation to proceed with the dismissals did take into account the protection of workers who were entitled to " trade union privileges ". The Government goes on to explain the concept of " trade union privileges ". Under section 405 of the Labour Code, as amended by section 1 of Legislative Decree No. 204 of 1957, certain persons are, by virtue of their trade union activities, placed in a favoured position with regard to dismissal and other questions. Under section 24 of Legislative Decree No. 2351 of 1965 these persons are the founders of a trade union, workers joining a union which is in process of formation, certain members of union management committees and union grievance committees. The Government states that the positions of the persons entitled to these privileges were not adversely affected by the authorisation to dismiss personnel.
16. 311. The Government gives the terms of this authorisation, which, in addition to safeguarding the rights of persons entitled to trade union privileges, embodies the principle that workers with the heaviest family obligations and workers with long service should not, as far as possible, be dismissed.
17. 312. The Government states that, after the dismissals had been effected, complaints were made by the union of infringement of freedom of association. An inquiry was duly ordered into these allegations. The Government states that the inquiry, which has been following a normal course, does not yet permit of conclusions being drawn.
18. 313. In connection with these allegations, the Government also refers in its communication to certain legal provisions which protect, in a general way, the right of association.
19. 314. The allegation of an anti-union attitude on the part of the Ministry of Labour and its local offices is dismissed by the Government as an unsupported statement which would have to be proved before the highest authorities of the Ministry.
20. 315. With regard to the allegations of violation of trade union rights in the dismissals by the firm of Hermega, the Committee notes the Government's statement that an inquiry has been set up to investigate the situation. It recommends the Governing Body to request the Government to be good enough to inform it in due course as to the outcome of the inquiry.

B. B. The Committee's conclusions

1. 316. The Committee considers that the complainants have not furnished the proof necessary to support the allegation relating to the anti-union attitude of the Ministry of Labour and its local offices. Accordingly, it recommends the Governing Body to decide that this particular allegation does not call for further examination.
2. 317. As none of the Government's communications have dealt with the other allegations of anti-union discrimination by the firm of Hermega referred to in paragraph 43 of its 99th Report, the Committee recommends the Governing Body to request the Government to be good enough to furnish its observations thereon.

The Committee's recommendations

1. 318. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to decide, for the reason stated in paragraph 316 above, that the allegations relating to the anti-union attitude of the Ministry of Labour and its local offices do not call for further consideration;
   • (b) with regard to the allegations relating to Legislative Decree No. 939 of 20 April 1966:
   • (i) to draw the Government's attention to the fact that a restrictive provision such as that contained in this decree may sometimes constitute a considerable restriction of the potential activities of trade unions and hence run counter to the generally accepted principles of freedom of association;
   • (ii) to suggest to the Government that it may care to reconsider the provisions of sections 2 and 3 of the decree in question in the light particularly of the above principle and to request the Government to be good enough to inform the Governing Body of the action it intends to take in this connection;
   • (c) to request the Government to be good enough to inform the Governing Body in due course as to the outcome of the inquiry into the allegations of violations of trade union rights in the dismissals by the firm of Hermega;
   • (d) to request the Government to be good enough to furnish its observations on the allegations relating to anti-union discrimination on the part of the firm of Hermega referred to in paragraph 43 of its 99th Report (with the exception of the aspect of the case dealt with in paragraphs 310 to 313 above);
   • (e) to take note of this interim report, it being understood that the Committee will submit a further report once it has received the observations and additional information requested in subparagraphs (b), (c) and (d) above.