Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 236, Novembre 1984

Cas no 1240 (Colombie) - Date de la plainte: 30-SEPT.-83 - Clos

316. The complaint referred to as Case No. 1240 is contained in a communication of the National Federation of State Workers (FENALTRASE) dated 30 September 1983. FENALTRASE sent additional information in communications dated 25 October 1983 and 22 March 1984. The Government replied in communications dated 22 November and 21 December 1983 and 8 February, 4 May and 27 June 1984.

1. 316. The complaint referred to as Case No. 1240 is contained in a communication of the National Federation of State Workers (FENALTRASE) dated 30 September 1983. FENALTRASE sent additional information in communications dated 25 October 1983 and 22 March 1984. The Government replied in communications dated 22 November and 21 December 1983 and 8 February, 4 May and 27 June 1984.
2. 317. In view of the discrepancy between the allegations and the Government's reply with respect to the legal personality of the Union of the District Institute for the Protection of Children and Young Persons and in accordance with current procedure, the office communicated the contents of the Government's communication of 8 February 1984 to the complainant for comment. FENALTRASE submitted its comments in a communication dated 12 April 1984 which, in turn, was forwarded to the Government.
3. 318. With respect to Case No. 1248, the Committee examined the matter at its May 1984 meeting when it submitted an interim report to the Governing Body. [See 234th Report, paras. 623 to 638, approved by the Governing Body at its 226th Session (May-June 1984).] The Government sent additional information in communications dated 27 June and 8 August 1984.
4. 319. 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. The complainant's allegations (Case No. 1240)

1. 320. In its communications dated 30 September and 25 October 1983 FENALTRASE alleged that the Union of the District Institute for the Protection of Children and Young Persons (SINTRAIDIPRON), which was established on 13 February 1983, had been denied legal personality in spite of a series of appeals. The complainant explained that the Institute is financed by government funds and international aid and that its Director had never agreed to the setting up of the union arguing that it would mean the end of the Institute, which is engaged in welfare work: caring for abandoned children and young persons. According to the complainant, political influence had been brought to bear and personal gifts made in order to prevent SINTRAIDIPRON acquiring legal personality.
2. 321. The complainant also alleges that seven union leaders (Raúl Rivera Guzmán, Pastor López, Felipe Jiménez, Uriel Palomino, Lucila Garzón, Hugo Ortiz and Luis Ignacio Puentes) and eight founder members (Rosana Angel de Lara, Fernando Fierro, Ana Elvia Gómez, Marco Tulio Alarcón, Antonio Ricón, Alberto Rincón, Marta Arias and Carlos Campos) have been dismissed.
3. 322. In a subsequent communication dated 22 March 1984, the complainant stated that no solution had yet been found to the situation complained of.
4. 323. In view of the Government's statement in a communication dated 8 February 1984 that SINTRAIDIPRON had been granted legal personality by Resolution No. 00030 of the Ministry of Labour and Social Security on 5 January 1984, the Office sent the complainant a copy of the said resolution for comment. The complainant replied on 12 April 1984 that Resolution No. 00030 of 5 January 1984 had been challenged by one of the officials of the District Administration's legal department on 11 January 1984, and that the Ministry of Labour had not yet settled the matter. In the meantime, the union had been unable to operate and its leaders had not been reinstated.

B. Previous examination of Case No. 1248

1. 324. When the Committee examined this case at its May-June 1984 meeting, it made the following recommendations with respect to the allegations that were still outstanding.
   • "The Committee requests the Government to specify the concrete reasons for the dismissal of 23 members and three leaders (president, secretary and treasurer) of the Customs' Revolving Fund Trade Union ...
   • The Committee requests the Government to reply to the allegations concerning the dismissal of the presidents of the Santander and La Guajira Branches of the National Social Security Fund Trade Union and the dismissal of Hernán Sánchez, Guillermo Osorio and Francisco Balbín Arango, respectively president, secretary and treasurer of the Union of Employees of Public Undertakings of Medellín."
2. 325. The complainant had stated that the dismissal of members of) the Customs' Revolving Fund Trade Union had occurred as a result of denunciations made by the union concerning certain anomalies.
3. 326. The complainant, referring to the dismissal of the three leaders of the Union of Employees of Public Undertakings of Medellín, had further stated that they had been arrested in 1981 at the request of the management during a discussion of the list of employee demands and were subsequently sentenced to 90 days' imprisonment. As a result, proceedings were initiated to lift the trade union protection which they enjoyed and, one year later, the court ruled against them and they were dismissed by the management.

C. The Government's reply

1. 327. With respect to Case No. 1240, the Government stated, in its communication dated 22 November 1983, that when it examines a request for recognition of legal personality the Ministry of Labour and Social Security considers only, the legal aspects of the constitution of the' trade union and its decision is completely unaffected by any kind of outside influence.
2. 328. In its communication dated 21 December 1983, the Government added that SINTRAIDIPRON had initially been denied legal personality because certain provisions of its statutes were in flagrant violation of provisions relating to public law and order in the Substantive Labour Code. The Government also stated that, since the question whether district officials (which include the employees of the District Institute for the Protection of Children and Young Persons) come under the heading of "public employees" or "official workers" (categories whose juridical status differs as far as membership of trade unions and collective bargaining are concerned) was still subjudice, the Ministry could not rule on the legal personality of the trade union until the relevant judgment had been handed down by the Council of State.
3. 329. In its communications of 8 February, 4 May and 27 June 1984, the Government states that, by virtue of Resolution No. 00030 of 5 January 1984 (a copy of which it attached), SINTRAIDIPRON's legal personality was recognised provided its statutes were brought into line with the legislation in force. However, continues the Government, an appeal has been lodged against the said resolution in accordance with the law and no decision has yet been reached on the matter, pending consultation of the Council of State which must rule whether employees of the District of Bogotá are public employees or official workers, thereby determining their legal status; the Ministry of Labour will then abide by this ruling.
4. 330. With regard to the alleged dismissal of employees of the District Institute for the Protection of Children and Young Persons (IDIPRON), the Government states that the appointments of Felipe Jiménez, Uriel Palomino and Hugo Ortiz were revoked by the Mayor of Bogotá, by virtue of the power vested in him by the law to make and revoke appointments at his discretion.
5. 331. The Government further states that, of the employees listed by the complainant as having allegedly been dismissed, Alberto Rincón has never been an official of the Institute, and Fernando Fierro and Marco Tulio Alarcón are neither founder members nor members of the trade union.
6. 332. The Government points out that the rules and regulations under which public employees are engaged contain no provision for dismissal but that separation from the service may be effected, inter alia, by revocation. The appointing authority - in the case of IDIPRON, the Mayor of Bogotá - is empowered by the law to appoint and remove employees at will as the interests of the service or public convenience demand.
7. 333. Furthermore, the Government adds, the employees whose appointments were revoked applied to the labour courts for compensation. It states that their appointments were revoked not on account of their trade union membership but in the interests of the better functioning of the public service provided by IDIPRON.
8. 334. With respect to Case No. 1248, the Government states that the revocation of the appointments of certain employees of the Customs' Revolving Fund was for no other motive than the requirements of the service, i.e. to create the necessary conditions for the more satisfactory functioning of the service provided by the Customs' Revolving Fund. So that the State can guarantee the satisfactory provision of the services for which it is responsible, national legislation has empowered the authorities to appoint and remove employees in government departments at will. This power is discretional - in other words, its exercise is left to the judgment of the authorities who are responsible for assessing the requirements of the service (which may be compromised by such factors as immorality, inefficiency, etc.) and the consequent need to appoint or remove personnel. Since it is a matter of discretion, no grounds need be given for the administrative act whereby an official's appointment is revoked; according to the law, the personal conviction of the authority concerned is sufficient justification for such action. The foregoing considerations were brought to the attention of four representatives of FENALTRASE by the Director-General of the Fund, who spoke to them in his office in September 1983. The separation of the employees from the Customs' Revolving Fund was in full compliance with the law and in conformity with the discretionary power referred to above, inasmuch as they neither had an established position in the administrative service nor were protected by any special provisions or immunity. Furthermore, the Ministry of Labour and Social Security cannot legally request the Director-General of the Fund to give specific reasons for his decision to revoke each of the appointments, as it has no authority to interfere in the exercise of a function vested in him by the law itself.
9. 335. The Government also states that the removal from service of a non-established employee (one whose appointment may be made and revoked at will) can never be on account of his trade union membership or of any union activities in which he may be engaged. If an official's appointment was revoked on account of his membership of a trade union, the administrative disputes authority would, immediately upon proof of the facts, order his reinstatement and sentence the body concerned to pay appropriate compensation.
10. 336. With respect to Hernán Sánchez, Guillermo Osorio and Francisco Baldín Arango, the Government states that they were not public employees whose appointments may be made and revoked freely but official workers and that, prior to their removal from the service, proceedings were initiated to lift the trade union immunity which they enjoyed, as required by the law. Consequently, the body concerned abided by the court ruling which authorised it to terminate the labour relationship, thus guaranteeing that their rights were respected.
11. 337. Finally, the Government points out as regards the dismissal of the presidents of the Santander and La Guajira sections of the National Social Security Fund Trade Union, that their appointments were declared groundless for reasons of service necessity by virtue of the legal right to freely appoint and remove public employees.

D. The Committee's conclusions

1. 338. Regarding the failure to grant legal personality to SINTRAIDIPRON, the committee notes that, by Resolution No. 00030 of 5• January 1984, SINTRAIDIPRON's legal personality was recognised provided the organisation's statutes were brought into line with the legislation in force. The Committee further notes that an appeal has been lodged against the said Resolution and that no decision has yet been reached on the matter, pending consultation in the Council of State which must rule whether employees of the District of Bogotá (which includes the workers of SINTRAIDIPRON) are public employees or official workers, thereby determining their legal status. The Ministry of Labour will then abide by this ruling. In these circumstances, the Committee requests the Government to inform it of the substance of the ruling handed down by the Council of State and hopes that SINTRAIDIPRON will shortly be able to enjoy legal personality.
2. 339. With respect to the revocation of appointments by the District Institute for the Protection of Children and Young Persons (IDIPRON), the Committee notes that according to the Government, the appointments of the persons concerned were revoked not on account of their trade union membership but in the interests of the better functioning of the public service provided by IDIPRON and by virtue of the power vested in the Mayor of Bogotá to appoint and remove employees at will. The Committee further notes the Government's statement that, contrary to the complainant's allegations, Alberto Rincón was not an official of IDIPRON and that Fernando Fierro and Marco Tulio Alarcón are neither founder members nor members of SINTRAIDIPRON. The Committee regrets that the Government has not indicated the specific grounds for the revocation of the appointments of the seven leaders and five founder members of the trade union and that it has confined itself to stating generally that their removal from service was not based on their union membership but on the power to appoint and remove employees at will as the interests of the service or public convenience demand. In these circumstances and considering that, according to the Government, the persons concerned appear to have accepted the revocation of their appointments inasmuch as they have applied to the courts for compensation, the Committee wishes to emphasise that the power to appoint and remove non-established public employees in the administrative service at will should under no circumstances be motivated by the trade union functions or activities of the persons involved and that the legislation should provide for appropriate guarantees. For example, the legislation should allow appeal procedures when it is claimed that the revocation of a public employee's appointment is for anti-trade union reasons in which it is the administration's or the public authorities' responsibility to prove that its decision is not connected with the trade union activities of the person concerned.
3. 340. Regarding the revocation of the appointments of 23 members and three leaders (president, secretary and treasurer) of the Customs Revolving Fund and of the presidents of the Santander and La Guajira sections of the National Social Security Fund Trade Union, the Committee notes the Government's statement which, in substance, is the same as the statement it made in connection with the revocation of appointments in IDIPRON. The Committee notes, in particular, that the power to appoint and remove non-established employees in the administrative service at will as the interests of the service demand is a matter of discretion and that no grounds need to be given for the administrative act whereby an official's appointment is revoked. In these circumstances, the Committee refers the Government again to the principles set out in the preceding paragraph.
4. 341. Regarding the removal from the service of Hernán Sánchez, Guillermo Osorio and Francisco Baldín, leaders of the Union of Employees of Public Undertakings of Medellín, the Committee notes that, following a request to have their trade union immunity lifted, the Court authorised the termination of the labour relationship.

The Committee's recommendations

1. 342. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions:
   • (a) the Committee hopes that SINTRAIDIPRON will shortly be able to enjoy legal personality and requests the Government to inform it of the ruling to be handed down by the Council of State in this matter;
   • (b) the Committee emphasises that the exercise of the power to appoint and remove non-established public employees in the administrative service at, will should under no circumstances be motived by the trade union functions or activities of the persons involved and that the legislation should provide for appropriate guarantees. For example, the legislation should provide for appeal procedures when it is claimed that the revocation of a public employee's appointment is for anti-trade union reasons in which it is the administration's or public authorities' responsibility to prove that its decision is not connected with the trade union activities of the person concerned.