Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 313, Mars 1999

Cas no 1916 (Colombie) - Date de la plainte: 18-NOV. -96 - Clos

Effect given to the recommendations of the Committee and the Governing Body

1. 19. In its previous examination of this case, the Committee urged the Government to take all the necessary measures to reinstate in their posts the trade union leaders, members and workers who were dismissed for organizing a strike in 1993 at the "Medellín Municipal Enterprises" (in the refuse collection sector) and, if this was not possible, to ensure that they received full compensation. The Committee also requested the Government to ensure that in future any declaration on the legal status of strikes (declaration of illegality) would be made by an independent body and not by the administrative authority, and to amend those provisions in the Labour Code which prohibit strikes in a wide range of services which cannot be considered essential in the strict sense of the term (see the 309th Report of the Committee, para. 105).
2. 20. In its communications of 10 December 1998 and 15 January 1999, the Government provided a copy of a ruling given on 9 March 1998 by the Supreme Court of Justice stating that in June 1993 the majority of the workers had returned to work, while the four complainants continued their stoppage after it had been declared illegal and compensation for wrongful dismissal is therefore inappropriate. The Government adds that, once judicial decisions are handed down, the Government of Colombia, or of any other State based on the rule of law, has no choice but to comply, in view of the separation of powers. The workers now appealing to this international body availed themselves of all the available means of pursuing their claims. Although the judicial decisions which they obtained were not in their favour, they constitute a matter adjudged and must be respected by all.
3. 21. At the same time, the Government points out that the case concerns a work stoppage, which is legally and constitutionally a different concept from that of a strike. This was expressly indicated by the persons responsible for formulating the complaint, who stated that at their General Assembly of 7 February 1993 they agreed to declare themselves "in permanent session", i.e. they never voted for strike action. It should be emphasized that the workers at no time voted for a strike but employed the union's own concept of a "permanent assembly", which in practice means an illegal stoppage and which affected refuse collection in the country's second largest city. Section 56 of the Political Constitution of Colombia guarantees the right to strike except in essential public services. The legislators developed this constitutional principle and specified those activities regarded as constituting essential public services in order to safeguard in full the right to strike in those occupations which by nature are not essential. Although currently there are laws which expressly define essential public services (for example, Act No. 142 of 1994 concerning public services for households, including sanitation), at the time when Resolution No. 00414 of 18 February 1993 was adopted, the principles embodied in it were already applied, although the relevant provisions of the 1991 Political Constitution had not been developed, and are becoming well established in law. This was the ruling given by the Council of State on 26 October 1994.
4. 22. The Government states that, given the existence of judicial review of the administrative procedure for declaring a strike illegal (see (e)) within which a decision is given by the highest administrative court, the Council of State, and must be respected by the parties involved and by the Government, the following considerations should be borne in mind: the procedure for a declaration of illegality is not arbitrary. It comprises the following: (a) the only authority competent to register a stoppage or strike is the labour inspector who reports on the facts observed at the workplace and invites representatives of the employer and of the workers to put their respective cases in the administrative proceedings. The absence of any wish on the part of the parties to defend their claims is not a reason for halting the administrative proceedings; (b) the assessment of the facts is the responsibility of the Technical Sub-Directorate for Collective Affairs which draws up a draft resolution for signature by the Minister; (c) the decision is the sole responsibility of the Minister, after the case has been examined by the Legal Office (Advisory Office of Settlement); (d) the administrative decision is reconsidered; (e) the administrative decision of the Minister declaring the strike or stoppage illegal can be contested before the judicial authority. This system of supervision protects the interested parties from possible abuses of power by the Minister and from the possible illegality of the Minister's decision, and has the same effect in the Colombian justice system as would be had by the suggestion of the Committee on Freedom of Association that such decisions are a matter for judges rather than the administrative authorities. The solution provided by the national legal system takes into consideration the need for flexible decisions which will implement cogent instruments capable of deterring violations with a view to ensuring that a group of workers acting in violation of the law ceases to do so; this is a task for the
   • administrative authorities, although it must be possible to contest their decisions from the legal point of view, and for this purpose workers have available to them the possibility of legal action.
5. 23. The Government indicates that once a stoppage has been declared illegal, the employer is entitled to dismiss the workers involved, taking into account their degree of involvement. The employer's decision can be contested before labour courts which can order the reinstatement of a worker who has been unjustly or illegally dismissed.
6. 24. As regards the definition of essential public services, in which according to the Colombian Constitution strikes are prohibited (section 56), the Government does not share the concern of the Committee on Freedom of Association with regard to the "wide range of services" in which strikes are restricted. Under national law, essential public services are those that have been expressly defined as such by the legislators and, whenever the term essential is applied, the Constitutional Court can review a legislative decision with a view to ascertaining whether or not the activity in question is really an essential public service (Ruling C-472 of 27 October 1994). According to the Ruling in question, a given public service may be deemed to be essential if it contributes directly to the protection of property or the fulfilment of needs or the expression of values connected with the respect, safeguarding, exercise and effectiveness of fundamental rights and freedoms. The criterion of the Constitutional Court is the same as that used by the Committee of Experts in its 1983 General Survey (paragraphs 213 and 214), namely, that only those services "whose interruption would endanger the life, personal safety or health of the whole or part of the population" can be considered essential.
7. 25. The activities which the legislators have defined as essential public services have arisen in response to the particular conditions prevailing in Colombia; there is not, as was suggested, any discretionary element in their definition. In those cases where, because of the essential nature of the public services in question, strikes are prohibited under the Constitution, provision is made, as a compensatory guarantee, for arbitration to resolve disputes. It follows that national legislation is in conformity with the interpretations of the Committee of Experts with regard to the rights of association and negotiation embodied in ILO Conventions Nos. 87 and 98.
8. 26. The Committee notes that the Supreme Court of Justice did not order reinstatement or compensation for wrongful dismissal in the case of the four complainants who had taken part in and continued a work stoppage (the subject of the complaint in Case No. 1916) which had been declared illegal. The Committee observes that the decision of the Supreme Court of Justice is based on legislation currently in force, which empowers the Minister of Labour to declare a strike or work stoppage illegal, and that the declaration of illegality of the strike in the present case is based on the prohibition of strikes in the public services and specifically in hygiene and sanitation services (section 430 of the Labour Code). In this regard, the Committee observes that, according to the documents available to it, the stoppage began on 7 February 1993 and was declared illegal on 18 February and therefore does not rule out the possibility that the interruption in the refuse collection service for 11 days might have endangered the health of the population, and that this might have given rise to certain sanctions. However, although, as the Government states, the stoppage considered in the present case did not follow a strike vote, the Committee recalls that responsibility for declaring the strike (or stoppage) illegal should not lie with the Government but with an independent body which has the confidence of the parties involved (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 522), and that the legislation prohibits strikes in a very wide range of services which are not necessarily essential (see the 309th Report of the Committee, para. 101). This being the case, the Committee draws these legislative aspects of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations, which for many years has criticized the provisions of legislation which prohibit strikes in certain non-essential services.