Rapport définitif - Rapport No. 202, Juin 1980

Cas no 871 (Colombie) - Date de la plainte: 22-FÉVR.-77 - Clos

1. 85. The Committee last examined this case at its November 1979 session, when it submitted interim conclusions in its 197th Report (paragraphs 433-456). This report was approved by the Governing Body at its 211th Session (November 1979).
2. 86. The allegations still outstanding concern the suspension of trade unions by administrative authority, the death of an indigenous leader, the arrest of a trade unionist and problems involving teachers and health workers. Since it last examined the case the Committee has received observations from the Government by a communication dated 24 January 1980.
3. 87. Colombia has ratified both 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. A. The complainants' allegations

• Suspension of trade unions by administrative authority
  88. 88 On examining the allegations relating to the suspension of the legal personality of a trade union by the administrative authorities, the Governing Body, on the Committee's recommendation, drew the Government's attention to the desirability of amending the provisions of the legislation relating to the suspension or dissolution of industrial associations so as to bring them fully into line with Article 4 of Convention No. 87. The Government had stated that it had been its policy since 1977 to make no use of its powers to suspend the legal personality of trade unions by administrative authority and announced that the President of the Republic had been given powers by Parliament to revise the labour legislation in force, which afforded an opportunity to amend the legal provisions in question so is to bring them into conformity with Convention No. 87.
  89. 89 In its communication of 14 January 1980, the Government states that the implementation of the amendments in question is in abeyance while the changes are worked out by a Drafting Committee for the Substantive and Procedural Labour Codes under the supervision of the Ministry of Labour and Social Security. The Committee notes this information and would like this aspect of the case to be brought to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
• Allegations relating to the death of an indigenous leader and the arrest of a trade unionist
  90. 90 As regards the allegations relating to the death of the indigenous leader Justiniano Lama and the arrest of Abel del Pino, an official of the National Agrarian Federation, the Governing Body, at its November 1979 session, on the Committee's recommendation, took note of the information supplied by the Government to the effect that the judgements in these cases had not yet been rendered, and requested the Government to supply the texts of these judgements as soon as they became available, with the reasons adduced therefore.
  91. 91 In his communication of 14 January 1980, the minister of Labour and Social Security expresses his regret at having no legal means of enlarging upon the information already supplied to the Committee.
  92. 92 The Committee notes this communication and hopes that the Government will endeavour once again to obtain more detailed information about these cases from the competent services. The Committee recalls the importance which it has always attached to the speedy and full elucidation of cases involving the death of trade unionists and the threat to the exercise of trade union rights implied by the detention of trade unionists against whom no grounds for conviction are subsequently found. The Committee accordingly wishes to be informed of the punishment imposed on the persons responsible for the death of Mr. Justiniano Lama and of the sentence pronounced in, the case of Mr. Abel Pino.
• Allegations relating to the trade union rights of workers in the teaching profession
  93. 93 In its complaint, the Trade Union Confederation of Workers of Colombia (CSTC) alleged that the Government had promulgated a statute for the teaching profession which conferred on teachers the status of "public employees", thus restricting their right to bargain collectively and hence their trade union rights.
  94. 94 As concerns teachers, the Government pointed out in its communication of 16 April 1979 that Legislative Decree No. 128 of 20 January 1977 for the establishment of a statute for the teaching profession, which had been challenged by the trade unions, had not been applied. The President had been given extraordinary powers to prepare a new statute by Act No. 8 of 24 January 1979. The Ministry of National Education, in a letter appended to the Government's communication, stated that, given the urgent need to pass a new statute, the Ministry had appointed a commission, composed of representatives of the Government and of the Colombian Federation of the Teaching Profession (FECODE), to draw up a draft Bill.
  95. 95 When it had examined these allegations on an earlier occasion, the Committee had observed that as a result of the measures taken by the authorities to declare teachers to be "public employees" they had become subject to the restrictions imposed by section 416 of the Labour Code, thus losing the right to bargain collectively which they had hitherto apparently enjoyed. The Committee accordingly took note of the fact that the Government had refrained from applying the statue for the teaching profession, and the Governing Body, on the Committee's recommendation, requested the Government to keep the Committee informed of any progress made in connection with the adoption of a new statute for the teaching profession.
  96. 96 Appended to its communication of 24 January 1980, the Government supplies photocopies of Decree No. 2277 of 14 September 1979 laying down rules for the exercise of the teaching profession, Decrees Nos. 2620, 2621 and 2743 for the introduction of regulations and orders Nos. 20507, 20508 and 23741, all of 1979.
  97. 97 The texts furnished by the Government make a distinction between "official teachers" and "non-official teachers". Decree No. 2277 (section 3), referring to "official teachers", specifies that "teachers who perform: their work in official establishments operated by national, departmental, district or municipal authorities or the authorities of an intendencia or a comisaria shall be deemed to be official employees governed by special regulations, who, once appointed, shall be bound to the administration by the rules laid down in this decree". Referring to "non-official teachers", the same decree (section 4) explicitly states that "such teachers shall be governed by the provisions of the Substantive Labour Code, collective covenants or agreements or internal rules, as appropriate in each case". It is to be noted that the reference to collective covenants or agreements applies only to non-official teachers, and not to official teachers, whose rights as set out in section 36 of Decree No. 2277 do not include the right to conclude collective agreements, but simply the right "to form occupational associations legally empowered to represent their members in the submission of claims and requests to the national and sectional authorities".
  98. 98 On analysing the above-mentioned texts the Committee has noted that the new provisions do not bring about any fundamental changes in the trade union rights of teaching staff. In effect, the earlier statute for the teaching profession established that "primary and secondary schoolteachers in the employ of the State, and administrative staff working in educational establishments operated by the State, shall be deemed to be public employees", which meant, under the terms of section 416 of the Substantive Labour Code, that they had the right to organise but not to bargain collectively. This was precisely the restriction which gave rise to the complaint, and it is maintained in the new decrees. The Committee accordingly considers it proper to examine the substance of the allegations.
  99. 99 In a case involving Colombia which related to the exclusion of "public servants employed by the State" from the scope of the Right to Organise and Collective Bargaining Convention (No. 98), the Committee recalled that the Committee of Experts on the Application of Conventions and Recommendations has pointed out that, while the concept of public servant may vary to some degree under the various national legal systems, the exclusion from the scope of the Convention of persons employed by the State or in the public sector but who do not act as agents of the public authority (even though they may be given a status identical with that of public officials engaged in the administration of the State) is contrary to the meaning of the Convention. The same criterion has been adopted by the Committee on Freedom of Association on a number of occasions when examining complaints relating to government employees who did not act as agents of the public authority, and, more specifically, when considering a complaint concerning the right of teachers to bargain collectively, the Committee drew attention, in the light of the principles contained in Convention No. 98, to the desirability of promoting voluntary collective bargaining, according to national conditions, with a view to the regulation of terms and conditions of employment.
  100. 100 The Committee takes note of the information supplied by the Government and would like the comments set forth in the preceding paragraph to be brought to the attention of the Government. It would also like this aspect of the case to be brought to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
• Allegations relating to health workers
  101. 101 In its communications of 18 May and 11 June 1979, the National Union of Health Workers (SINDES) stated that in September 1978 it had submitted to the Ministry of Public Health demands and claims affecting approximately 30,000 workers which had never been acknowledged, and that a protest strike had therefore been organised on 27 and 28 March 1979, as a result of which 58 workers were dismissed and 15 were subjected to disciplinary measures which were to last for up to one year.
  102. 102 The Government sent its observations by a communication dated 6 August 1979, in which it states that all officials of the Ministry of Public Health are public employees, and accordingly, under the law, they do not have the right to strike or to bargain collectively. For this reason the collective stoppage of work organised on 27 March 1979 was declared illegal by the Ministry of Labour and Social Security, as a result of which the Minister of Health, acting in pursuance of the statutory provisions in force, terminated the appointments of 32 officials and suspended for one year 12 officials, all of whom had taken an active part in the aforementioned work stoppage. The Government states that even though the SINDES is not empowered to bargain collectively, since its members are public employees, and furthermore it represents only a small proportion of health workers, the Ministry of Public Health has appointed a commission to discuss these problems and endeavour to arrive at settlements at the level of the Sectional Health Services, which are the bodies competent to deal with the requests involved in the claims.
  103. 103 In examining these allegations, the Committee must repeat the remarks already made in this regard to the effect that the exclusion from the entitlement to bargain collectively of persons employed by the state or in the public sector but who do not act as agents of the public authority is contrary to the meaning of Convention No. 98.
  104. 104 The Committee has repeatedly pointed out that the right to strike is one of the essential means through which workers and their organisations may defend their occupational interests. Nevertheless, since the present allegations relate to a strike which took place in the health sector, the Committee recalls that on previous occasions it has conceded that the right to strike may be restricted or even prohibited in the civil service or in essential services the interruption of which could endanger the existence or well-being of the whole or part of the population.
  105. 105 As concerns the measures taken as a consequence of the collective stoppage of work on 27 March, the Committee recalls that on previous occasions - and more particularly in a case involving Colombia - where it has been called upon to examine allegations of dismissals arising out of strikes, it has considered that such measures involve serious risks of abuse and serious threats to freedom of association. It has also held the view on such occasions that the development of labour relations could be impaired as the result of an inflexible attitude being adopted in the application of excessively severe sanctions to workers who participate in strike action. In the light of these considerations, and bearing in mind the fact that the strike in question was of short duration, the Committee considers that it would be particularly desirable for the Government to take steps to facilitate the reinstatement of the dismissed workers.

The Committee's recommendations

1. 106. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) as regards the suspension of trade unions by administrative authority:
   • (i) to take note of the appointment of a drafting Committee for the Substantive and Procedural Labour Codes whose task is to prepare the amendments to the provisions relating to the dissolution and suspension of industrial associations so as to bring them into line with Convention No. 87;
   • (ii) to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case;
   • (b) as regards the allegations relating to the death of one trade unionist and the arrest of another, to draw the Government's attention to the considerations set forth in paragraph 92 above and to ask it for information as to the punishment imposed on those responsible for the death of Mr. Justiniano Lama and as to the sentence pronounced in the case of Mr. Abel Pino;
   • (c) as regards the allegations relating to the trade union rights of workers in the teaching profession:
   • (i) to take note of the promulgation of new provisions with respect to the teaching profession;
   • (ii) to draw the Government's attention to the considerations set forth in paragraphs 98 and 99 above;
   • (iii) to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case;
   • (d) as regards the allegations relating to the trade union rights of health workers, to draw the attention of the Government and the complainants to the considerations set forth in paragraphs 103, 104 and 105 above and, in particular, to suggest to the Government the desirability of its taking steps to facilitate the reinstatement of the dismissed workers.