Rapport intérimaire - Rapport No. 187, Novembre 1978

Cas no 889 (Colombie) - Date de la plainte: 07-SEPT.-77 - Clos

1. 485. The Committee has already examined this case at its February 1978 session, when it submitted an interim report to the Governing Body.
2. 486. The Government has since sent a communication dated 24 April 1978.
3. 487. 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 by the Committee

1. 488. The present case relates essentially to the alleged death, arrest, dismissal and lay-off of large numbers of trade union officials and activists and to suspensions, withdrawals or refusals of legal personality involving several trade union organisations. According to the complainants these incidents had taken place mainly - though not entirely - as the result of a twenty-four hour general strike called on 14 September 1977 by the trade union federations of the country.
2. 489. The complainants stated that in recent months there had been a series of violations of the trade union rights of workers and their organisations. This, they said, had been in response to the legitimate demands and action of workers in the face of Colombia's galloping inflation, which made it impossible to survive with wages that were among the lowest in Latin America. The situation had reached such a point, added the complainants, that all the trade union organisations of Colombia had, for the first time, decided to form a common front and to take joint action. In response the Government had adopted Presidential Decree No. 2004 which provided for prison sentences, fines and other sanctions for union officials and activists who were involved in the organisation of strikes and other legitimate activities.
3. 490. In subsequent communications the complainants supplied a list of persons killed, imprisoned or dismissed as the result of the strike, together with the names of trade union organisations whose legal personality had been suspended or withdrawn, thus depriving them of the possibility of carrying on their activities legally.
4. 491. The Government transmitted observations in reply to certain of these allegations in a letter of October 1977. It stated that for reasons of internal public order - which was threatened by the strike of 14 September 1977 - it had found itself obliged to take certain steps, specifically in connection with Decree No. 2004 of 26 August 1977. These steps, which were of a strictly preventive nature and had been widely publicised, provided for the justifiable dismissal of persons responsible for instigating, encouraging or promoting in any way the total or partial, continuous or staggered stoppage of occupational activities. The Government emphasised that these preventive measures had been designed to counter the national strike of 14 September 1977; as had been clearly established by subsequent investigations, the strike was not of an occupational nature but was intended to disrupt public order. As a result, there had been twelve innocent victims, public disturbances and damage to vehicles and business establishments.
5. 492. When it examined the case at its February 1978 session the Committee took note of Decree No. 2004 adopted on 25 August 1977 by the Colombian Government. Under this Decree and for the duration of the state of emergency, persons responsible for organising, leading, instigating, encouraging or promoting in any way the total or partial, continuous or staggered stoppage of normal occupational or other activities are liable to 30 to 180 days' imprisonment. The sentence can be passed by the governors, administrators and commissioners and by the mayor of the special district of Bogotá, by means of a resolution specifying the grounds therefor. These sanctions, or participation in the aforementioned work stoppages, are moreover considered to be reasonable grounds for dismissal. The Government confirmed that this Decree was adopted as a preventive measure in order to counter the national strike of 14 September.
6. 493. Referring to the considerations which it had expressed in a recent case, the Committee pointed out that Convention No. 87 recognises the right of trade union organisations to formulate their programmes and organise their activities; this entails not only the right to negotiate with employers but also the right to express their point of view on economic and social questions affecting their members' interests. The Committee also stated that, in view of this right which trade unions were thus recognised as having, it has always considered that the right to strike is an essential means whereby members may promote and defend their occupational interests, but emphasised that strikes of a purely political nature do not fall within the scope of the principles of freedom of association. As concerns claims of an economic nature, continued the Committee, the right to strike should not be restricted solely to industrial disputes likely to be resolved through the signing of a collective agreement. The Committee considered that workers and their organisations should be allowed to express in a broader context, if they so wish, their feelings with regard to economic and social matters affecting their interests.
7. 494. While observing that the versions of the events given by the complainants and the Government were contradictory, the Committee could not but note the severity of the methods employed in response to a 24-hour strike which seemed to have been largely an expression of discontent by a great many workers, since it was organised by all the major tendencies of the Colombian trade union movement. The Committee felt that, if no steps were taken, the repercussions of the strike were liable to cause a lasting deterioration in industrial relations in the country.
8. 495. The Committee therefore pointed out, as it had done on previous occasions, that it would be particularly appropriate, in the case of the persons who had lost their lives during the disturbances, that the Government should institute an impartial and independent inquiry in order to elucidate the facts and determine responsibility.
9. 496. With regard to the persons who had been arrested, the Committee considered that a summary procedure such as that provided for under Decree No. 2004 might result in unfounded decisions being taken. Any trade unionist who had been arrested should be fully ensured the right of defence guaranteed by normal judicial procedure, as provided for by the International Covenant on Civil and Political Rights.
10. 497. As regards the union officials and activists who had been dismissed or laid off the Committee emphasised that labour relations could be greatly improved if the employers concerned gave serious consideration to the possibility of reinstating the persons affected.
11. 498. As regards the allegations concerning suspension of the legal personality of trade union organisations, the Committee drew attention to the fact that the suspension or dissolution of a trade union by administrative authority is not in conformity with the principles of freedom of association, and that on its recommendation the Governing Body had in a recent case urged the Government to take the necessary steps without delay to amend the provisions of the Labour Code in that respect.
12. 499. In general terms, the Committee considered it desirable for the competent authorities to re-examine the situation of the trade unionists who had been sanctioned under the provisions of the aforementioned Decree No. 2004 and the decision to suspend or withdraw the legal personality of various trade unions referred to by the complainants. The authorities should also approach the employers concerned with a view to the reinstatement of the trade union members who had been dismissed.
13. 500. In these circumstances the Governing Body, on the recommendation of the Committee, requested the Government to supply detailed information on the death, arrest, dismissal or lay-off of trade unionists and the non-recognition, suspension and withdrawal of the legal personality of trade union organisations.

B. Reply of the Government

1. 501. In its communication of 24 April 1978, the Government begins by referring to the deaths of trade unionists. In this respect it states that it is not for the Ministry of Labour to conduct an inquiry into the deaths which took place on the occasion of the general strike of 14 September 1977 or into the causes of these deaths, since these events go beyond the field of labour law and enter that of politics. The question therefore lies within the competence of the judiciary.
2. 502. As regards the dismissals which followed the general strike the Government states that the Ministry of Labour has always exercised - and will continue to exercise - particular caution in authorising collective dismissals of workers. This caution was heightened by the general strike, and the strictness with which the administrative inquiries were conducted resulted in the authorisation of only a limited number of dismissals.
3. 503. Likewise, the policy of the Ministry of Labour is to refrain from cancelling the registration of legally recognised workers' organisations. In this connection the Government observes that the Ministry of Labour is not empowered "to withdraw legal personality", a prerogative which belongs to the ordinary labour courts. Where a request is made for the deregistration of a union, the Ministry makes exhaustive inquiries to ascertain the veracity and the factual and legal foundation of the allegations to ensure that the occupational association concerned is not deregistered on insufficient grounds. Nor does the Ministry of Labour decide to suspend the legal personality of a union which is taking specific action, except in special and exceptional circumstances.
4. 504. In conclusion, the Government states that it is paying close attention to social reform in its meetings with the National Council of Trade Unions. The representatives on the Council have decided to set up Committees to study all social problems, in particular the Committee on Legislative Affairs which is to amend the relevant provisions with a view to securing the application of Conventions Nos. 87 and 98 in the legislation.

C. Conclusions of the Committee

1. 505. The Committee notes that, in its reply, the Government has provided observations regarding the recommendations made by the Committee at its February 1978 session on the allegations concerning the death of trade unionists, the dismissals which followed the general strike of 14 September 1977 and the suspension of the legal personality of certain trade union organisations.
2. 506. In connection with the death of trade unionists, the Government observes that the institution of an inquiry does not lie within the competence of the Ministry of Labour but within that of the judiciary. The Committee wishes to explain in this connection that, in referring to the desirability of an impartial and independent inquiry into these incidents, it in no way claimed to question the prerogatives of the judiciary. On the contrary, the Committee considers that a regular legal procedure conducted by the competent courts would permit a fully objective and independent elucidation of the facts and determination of responsibility.
3. 507. As regards the dismissals the Committee notes that, according to the Government, a limited number of authorisations were granted following the general strike of 14 September 1977. However, the Committee cannot but observe that the complainants have mentioned several hundred dismissals of workers and trade unionists; the ICFTU, in particular, referred to some 380 measures of this nature, indicating the names of the undertakings or the trade unions concerned, in an annex to its complaint. In cases where it has examined allegations of dismissals following strikes the Committee has considered that such measures involve serious risks of abuse and serious threats to freedom of association. It has also held the view that, on such occasions, 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 view of these considerations the Committee feels that it would be de s sir able for the Government to take measures to promote the reinstatement of the dismissed workers.
4. 508. As regards the measures concerning the legal personality of a number of trade union organisations, the Committee notes the Government's statement that the withdrawal of legal personality is a prerogative which belongs to the ordinary labour courts. The Committee has, in fact, noted that the most severe sanction which can be imposed on a trade union for contravention of the Labour Code - provided for under section 380 of the Code - is withdrawal of legal personality and dissolution of the union; this measure is taken by the labour courts at the request of the Ministry of Labour. Nevertheless, the Committee has also noted that, in the event of a strike being declared illegal, the ministry may decide to suspend the legal personality of a union for up to six months, and even to dissolve it (section 450). In these circumstances the Committee must recall the importance which it attaches to the principle contained in Article 4 of Convention No. 87 that trade unions should not be dissolved or suspended by administrative authority. In order to secure proper compliance with this principle it would not be sufficient for legislation to provide for a right of appeal against administrative decisions; it would be necessary to stipulate that the latter should not become effective until the statutory period has expired without an appeal being lodged against such decisions or until they have been confirmed by a decision of the court. It is also important that judges should be able to enquire into the substance of the case.
5. 509. The Committee further considers that these principles are of special importance in the case of Colombia, since, under section 372 of the Labour Code, no industrial association may act as such or carry out the functions conferred on it by law and by its own rules or exercise its own rights without having been granted legal personality. Furthermore, it may function only for so long as such legal personality lasts. It follows that the suspension of legal personality of a trade union makes it impossible for it to promote and defend the interests of its members. In the light of these considerations the Committee feels it desirable that the Government should take the necessary steps to bring the legislation fully into conformity with the principles set forth above.
6. 510. The Committee notes that the Government has not communicated its observations as regards the arrests of trade unionists. In this connection it feels that it must again express its concern regarding the summary nature of the procedure laid down in Decree No. 2004. In the case of persons engaged in trade union activities, the bringing of a detained person before the appropriate judge without delay is one of the civil liberties which should be ensured by the authorities in order to safeguard the exercise of trade union rights.

The Committee's recommendations

1. 511. In these circumstances, and as regards the case as a whole, the Committee recommends the Governing Body:
   • (a) As regards the deaths of trade unionists, to draw the attention of the Government to the need for complete inquiries to be made in such cases in order to elucidate the facts and determine responsibility as indicated in paragraph 506 above;
   • (b) as regards the measures of dismissal, to draw the attention of the Government to the principles and considerations set forth in paragraph 507 above and to suggest to in the desirability of taking the necessary steps to promote the reinstatement of the dismissed workers;
   • (c) as regards the suspension of the legal personality of a number of trade unions or their dissolution, to request the Government to take the necessary steps to bring the legislation fully into conformity with Article 4 of Convention No. 87, according to which trade unions should not be suspended or dissolved by administrative authority, and to re-examine the situation of the trade unions which were dissolved on the occasion of the general strike of 1977;
   • (d) as regards the arrests of workers and trade unionists, to reiterate its concern at the summary nature of the procedure provided for under Decree No. 2004 and to request the Government to provide information on the present situation of the persons arrested during the general strike of 1977;
   • (e) to take note of the present interim report.