Rapport intérimaire - Rapport No. 286, Mars 1993

Cas no 1620 (Colombie) - Date de la plainte: 03-FÉVR.-92 - Clos

1. 360. The complaints in this case appear in communications from the General Confederation of Labour (CGT), dated 3 January 1992, and the Latin American Central of Workers (CLAT), dated 10 January 1992. New allegations were sent by the CLAT in a communication dated 30 January 1992. The Government sent its observations in a communication dated 7 July 1992.
2. 361. Colombia has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), as well as the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 362. In its communication of 3 January 1992, the General Confederation of Labour (CGT) denounced the serious situation affecting workers in the Hotel San Diego SA, Hotel Tequendama, who are members of the Organization of Industrial Trade Unions affiliate, the National Union of Workers of the Gastronomical, Hotel and Similar Industries of Colombia (HOCAR), and are the victims of massive repression for having exercised the right to strike, which is enshrined in the Constitution and the Labour Code of the country.
2. 363. The complainant organization points out that the workers of the Hotel Tequendama, after failure to reach a new agreement on their list of claims during the legal period, had no other alternative than to go on strike on 19 December of the same year. The Ministry of Labour refused to affix the seals, which the complainant alleges it was obliged to do under the law; at the request of the enterprise, the Ministry of Labour sent officials on the date on which the strike began to check, in the words of the complainant, "an illegal work stoppage". The complainant CGT and the HOCAR trade union witnessed an effort to break the strike by the attempted entry into the hotel of staff with the support of the public forces, but they were turned back by the strikers.
3. 364. The Ministry of Labour issued resolution No. 006495, dated 20 December 1991, which establishes a compulsory arbitration board, although the law establishes that a strike may last for 60 days, according to the complainant. In these circumstances, the workers challenged this resolution and continued the strike despite the non-existence of guarantees for such action.
4. 365. On 26 December 1991, the Ministry of Labour issued resolution No. 006539 which declared the strike illegal, alleging that public sector workers, under section 416 of the Labour Code, are not entitled to strike.
5. 366. In this respect, the complainant points out that article 56 of the new Political Constitution of Colombia, promulgated in 1991, establishes that "the right to strike shall be guaranteed, except in essential public services defined by Parliament". The complainant states that in the hotel trade, the sale of alcohol and food services can in no case be considered an essential public service and that the Government's attitude in this respect restricts the free right of association, collective bargaining and strike.
6. 367. Since this resolution arbitrarily empowered the employer to dismiss those who continued on strike, the workers were obliged to end their strike after the Ministry of Labour guaranteed the job stability of the workers and that the employer would not take any reprisals against the strikers.
7. 368. Despite the acceptance of the Ministry's resolution mentioned above, the enterprise proceeded to dismiss trade union officials and militant workers (24 workers to date) some with 15, 20 and 30 years of service, and whose names are as follows: Carlos Fonseca Ríos, María Mery Garzón, Ezequiel Holguín, Mario Salamanca, Teresa Gómez de Casas, Leonardo Vacca, Beatriz Ayala, Rubén Dario Zapata, José Ernesto Robles, Guillermo Pacheco Páez, Rosa Sierra E., José Hugo Ramírez, Jesús Nieves, Carlos Iván Lizcano, Orfa Legro, Adonay Sierra Parra, Héctor Manuel Aldana CH., Luis Enrique Russi Páez, Ramón Agudelo, María Hilda Díaz, Elvira Hernández, María Elsa Poveda, Fernando Barceló Nieto, Salvador Gamba Amaya.
8. 369. The complainant points out that the main purpose of the strike was to defend the job stability of the workers, who were frequently dismissed without just cause and without the payment of any kind of compensation irrespective of their years of service.
9. 370. Finally, the complainant requested the ILO to send a mission to verify its grievances and other irregularities in labour matters.
10. 371. In its communication dated 10 January 1992, the CLAT alleges serious infringements by authorities and bodies in Colombia which it says are contrary to the provisions of international labour Conventions. After a careful study of the events which were corroborated in situ by representatives of the CLAT and documented by the HOCAR and CGT trade unions, the CLAT requests intervention by the ILO with the Government of Colombia to ensure the full respect of the rights of workers established in basic international labour standards.
11. 372. In a communication dated 30 January 1992, the CLAT denounces further situations which infringe the rights and freedoms of workers and their organizations in the following enterprises: the Aceitalera SA enterprise. The workers of the SINTRACEITALES trade union, in defense of their right to collective bargaining, did not accept the new labour system established by Act No. 50 of 1990. With the authorization of Superintendency of Companies and the Ministry of Labour, the Aceitalera SA enterprise created six subsidiary enterprises and announced its own liquidation so as to leave without jobs more than 800 workers of the said trade union; Agrarian, Industrial and Mining Credit Fund; National Railways; Bank of the Republic; Telecom (telecommunications enterprise); Telephone Company of Bogota; Territorial Credit Institute; Colpuertos. In all state-dependent enterprises which are carrying out policies of "adjustment and privatization", as reported by CLAT, trade union activity is subject to a "scorched earth" policy.
12. 373. The most flagrant example in the view of the CLAT is that of the COLPUERTOS enterprise in which, under the provisions of Decree No. 035, the Government rejects the provisions of the recently concluded collective agreement, thereby violating Colombian legislation which guarantees the right to collective bargaining. This situation affects more than 2,000 workers who are on the point of retirement and who, as a result of the Government decree mentioned above, will only be entitled to termination allowances. The CLAT also points out that in the San Juan de Dios Hospital in Santa Marta, more than 500 workers have gone on strike following an attempt by the Government to dismiss workers with more than ten years' service without providing the compensation required by the provisions of the respective collective agreements. The CLAT also states that according to a government decision, the National Community Roads Fund will cease activities in 1993 and dismiss more than 1,500 workers who will join the ranks of the 150,000 workers whom the Colombian State is threatening to dismiss to "remedy the fiscal deficit".
13. 374. The CLAT also refers to the complaint made by the National State Coordinating Committee, which groups together all the workers' organizations in the state sector and which voices the anguish of workers in that sector at the policies being implemented by the Government. In most state enterprises pressure is being placed on workers to force them to accept the terms of Act No. 50 of 1990 or be dismissed. According to the CLAT, to accept this Act means, amongst other forms of prejudice, the liquidation of trade union organizations, the elimination of collective bargaining, etc.
14. 375. For all these reasons, the CLAT requests the ILO to send a special mediation committee to corroborate the grievances made and to propose effective alternatives for dialogue, with a view to avoiding measures and situations in which the workers' organizations will have to defend the legitimate rights and freedoms established by national legislation and international labour Conventions.

B. The Government's reply

1. 376. In its communication of 7 July 1992, the Government of Colombia points out that the total work stoppage in the Hotel San Diego SA, Hotel Tequendama, was duly corroborated by the officials of the Ministry of Labour and Social Security; the Hotel Tequendama is a mixed company and therefore subject to the legal provisions governing industrial and commercial enterprises of the State.
2. 377. The Government argues that section 416 of the Labour Code establishes that trade unions of public sector workers may present lists of claims and are subject to the same provisions as those governing other trade unions, except for the fact that they may not announce or go on strike. The strike which was called and carried out by the workers of the Hotel San Diego SA, Hotel Tequendama, was contrary to the legal provisions since the exception to the right to strike was applicable in this case. Therefore, the Ministry of Labour and Social Security could not guarantee the holding of such a strike under the powers established by section 63 of Act No. 50 of 1990. The logical consequence was to declare the strike illegal, which was done in resolution No. 006539 of 26 December 1991.

C. The Committee's conclusions

1. 378. The Committee notes that this case refers to collective disputes in a mixed enterprise in the hotel industry, and in various enterprises pertaining to different branches of activity (banking and credit institutions, railway, telecommunications and port enterprises, etc.), most of which belong to the State.
2. 379. The Committee notes that during the course of the dispute in the Hotel Tequendama enterprise, following the declaration and holding of a strike which was not within the protections of the Labour Code, the Government issued two resolutions, one of which concerned the setting up of a compulsory arbitration board (No. 006495) and the other which declared the strike illegal (No. 006539), since the enterprise in question was a mixed company subject to the legal provisions applicable to industrial and commercial enterprises of the State.
3. 380. In this connection, the Committee would like to draw the attention of the Government to the fact that the right to strike by workers and their organizations is one of the essential means available to them to promote and defend their occupational interests. Furthermore, as the Committee has pointed out on several occasions (see 270th, 275th and 284th Reports, Cases Nos. 1434, 1477 and 1631 (Colombia), paras. 256, 199 and 398 respectively), the right to strike may only be restricted (for example, by the imposition of compulsory arbitration to end the strike) or prohibited in essential services in the strict sense of the term, i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Hotel services are clearly not an essential service as defined above. Furthermore, the Committee recalls that the Committee of Experts on the Application of Conventions and Recommendations, during its examination of the application of Convention No. 87 by Colombia at its meeting in March 1992, emphasized that the prohibition of strikes in the legislation of this country extended not only to essential services in the strict sense of the term, but to a wide range of the public services which are not necessarily essential (see the Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 79th Session, Report III (Part 4A), 1992).
4. 381. Bearing in mind that under the new Constitution (article 56) of July 1991 an Act will regulate the right to strike, the Committee asks the Government to ensure that the future legislation on the right to strike will fully respect the principles noted in the previous paragraph.
5. 382. In the same way, the Committee notes that as a result of the strike at least 24 workers named by the complainants were dismissed. In this respect, the Committee asks the Government to ensure the reinstatement in their jobs of these workers whose union rights were violated in the course of this strike and to keep it informed in this regard.
6. 383. The Committee also requests the Government to send its observations on the allegations made by the CLAT in its communication dated 30 January 1992.

The Committee's recommendations

1. 384. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure that the future legislation will respect the principles of freedom of association, in particular, as regards the right to strike, so that the right to strike may only be restricted (for example, by the imposition of compulsory arbitration) or prohibited in essential services only in the strict sense of the term, i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population.
   • (b) The Committee requests the Government to ensure the reinstatement in their jobs of the workers of Hotel Tequendama who were dismissed as a result of the strike and to keep it informed in this respect.
   • (c) The Committee requests the Government to furnish its observations on the allegations concerning violations of trade union rights in enterprises named by the CLAT.