Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 330, Mars 2003

Cas no 2151 (Colombie) - Date de la plainte: 09-JUIL.-01 - Clos

Allegations: In the present case concerning restructuring in more than 30 public institutions, the complainants allege numerous acts of anti-union discrimination (termination of employment of union officials without the judicial authorization required by law, and of many union members, in particular through dismissals, “voluntary” retirement plans and individual settlements which workers were “persuaded” to accept; failure to consult the trade unions on these processes of restructuring, and re-hiring of dismissed workers under service contracts which make union membership impossible. In some cases, termination of employment violated collective agreements in force guaranteeing security of employment. Lastly, the complainants allege other anti-union acts in some public institutions: refusal to grant trade union leave, dismissals and violations of the right of collective bargaining.

1. 528. The complaint is contained in communications from the Union of Public Servants of the Districts and Municipalities of Colombia (UNES) dated 9 July, 3 September, 3, 5, 13, 21, 23 and 30 October, 15 November and 25 December 2001; 15 and 18 January, 3 February, 12 March, 8 April, 24 and 28 May, 6, 7, 11, 13 and 14 June, 5 and 12 July, 9, 12, 16 and 30 August, 2 and 3 September, 3, 17 and 23 October, and 5 and 15 November 2002; and in communications from the Single Confederation of Workers of Colombia (CUT) and Public Services International (ISP) dated 3 and 23 October 2001 respectively.
2. 529. The Government sent its observations in communications dated 9 November 2001 and 14, 18, 23, 28 and 30 January, 1, 4, 6, 12, 18, 19, 20 and 21 February, 5, 6, 7 and 13 June, 10 and 11 September, 7 October 2002 and 21 January 2003.
3. 530. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 531. In its communications of 9 July, 3 September, 3, 5, 13, 21, 23 and 30 October, 15 November and 25 December 2001; 15 and 18 January, 3 February, 12 March, 8 April, 24 and 28 May, 6, 7, 11, 13 and 14 June, 5 and 12 July, 9, 12, 16 and 30 August, 2 and 3 September, 3, 17 and 23 October, and 5 and 15 November 2002, the Union of Public Servants of the Districts and Municipalities of Colombia (UNES), the Single Confederation of Workers of Colombia (CUT) and Public Services International (PSI) allege that, as part of the restructuring processes in the public sector, there have been numerous acts of anti?union discrimination in various public institutions. Specifically, the trade union organizations make the following allegations:
   • (a) mass dismissals of thousands of workers, including many trade union members and officials (Bogotá Mayor’s Office, Public Works Department of the Capital District, Institute for Urban Development (IDU), District Public Services Enterprise (EDIS), District Administrative Department for Community Action, Department of Education, Department of Transport, Department of Finance, General Secretariat, Government Secretariat, Administrative Department of the Environment, Administrative Land Registry Department, Administrative Department of District Planning, Administrative Civil Service Department, IDEP Institute, Institute of Recreation and Sport (IDRD), District Culture and Tourism Institute (IDCT), District Institute for Child Protection (IDIPRO), La Candelaria Corporation, the Philharmonic Orchestra, Savings and Housing Found (FAVIDI), the Botanical Garden, District Accounts Office, Council of Bogotá, Cundinamarca Welfare Authority, Administrative Department of Social Welfare of the Capital District, Cundinamarca Department of Public Works, Agriculture and Economic Development, Capital District Social Security Fund, San Blas Hospital, Bogotá Telecommunications Company (ETB), Officials of Tolima Department, the Victoria III and Vista Hermosa Hospitals, El Valle University, and the Social Security Fund). In some cases, the complainant gives comparative figures for the total number of dismissals and the number of union members dismissed, without indicating the total number of workers and union members at the establishment in question;
   • (b) in most cases, there were no consultations with the unions before restructuring took place;
   • (c) the dismissals in some cases violated collective agreements guaranteeing stability of employment and stipulating that dismissals could be carried out only for legally valid reasons (IDU, EDIS, San Blas and Victoria III Hospitals, Bogotá Public Works Department);
   • (d) in other cases, according to the complainants, the collective agreements laid down the manner in which restructuring was to be carried out (Administrative Department for Community Action, Cundinamarca Public Works Department, Bogotá Public Works Department).
   • (e) the public bodies and privatized companies drew up voluntary retirement plans and settlement procedures which, according to the complainants, workers were persuaded to accept by the offer of inducements (CODENSA, EMGESA and the Bogotá Power Company, the Bogotá Telecommunications Company (ETB), the Tolima Transport Department (SINTRATOLIMA), the Tolima Drinks Plant (SINTRABECOLICAS), and the District Institute for Recreation and Sport (IDRD));
   • (f) recruitment of new workers and, in some cases, the same workers, but under service contracts which, according to the complainants, meant that they could not join or establish trade unions;
   • (g) the dismissal of trade union officers without applying to the courts for suspension of trade union immunity (Institute of Urban Development (SINDISTRITALES and SINTRASISE), Bogotá Council (SINDICONCEJO)); and
   • (h) other anti-union acts (in Cundinamarca, dismissal of officials of SINTRABENEFICENCIAS for forming the trade union; in the Transport Department, refusal of trade union leave and subsequent dismissal of SINTRASISE officials; at the El Valle University, violation of the right of collective bargaining of SINTRAUNICOL).

B. The Government’s reply

1. 532. In its communications of 9 November 2001, 14, 18, 23, 28 and 30 January, 1, 4, 6, 12, 18, 19, 20 and 21 February, 5, 6, 7 and 13 June, 10 and 11 September, 7 October 2002 and 21 January 2003, the Government generally states that:
   • (a) restructuring in the public sector took place in accordance with national legislation and implementing regulations and/or administrative regulations adopted by the competent authorities and adapted to the needs of each of the organizations concerned;
   • (b) there have been no unjustified dismissals, and restructuring initiatives have been provided for in the law and were based on technical studies which concluded that they were necessary. In each case, provision was made by the competent authority, in decrees applicable to every institution, for voluntary individual settlements, voluntary retirement plans or redundancies, with appropriate compensation in all cases, as well as other benefits such as training and job placement;
   • (c) some of the restructuring initiatives were planned under the terms of collective agreements in which management and unions together established the best way of carrying out the restructuring;
   • (d) restructuring was carried out under the supervision of the Ministry of Labour, and in the great majority of cases in which appeals were made to administrative courts or the Constitutional Court, the management action was found to be justified;
   • (e) with regard to the allegations that the trade union immunity of union officials was not respected, the Government states that a number of trade union organizations were established on the same date as restructuring orders were issued, with the aim of allowing the unions founders to invoke trade union immunity and thus avoid redundancy; and
   • (f) as regards the allegations regarding the violation of the right of collective bargaining at El Valle University, a final agreement was signed on 3 July 2002.

C. The Committee’s conclusions

1. 533. The Committee notes that in the present case concerning restructuring in more than 30 public institutions which affected thousands of workers, the complainants allege numerous acts of anti-union discrimination (termination of employment of trade union officials without the judicial authorization required under legislation, and of many union members, in particular through dismissals, “voluntary” retirement plans and settlements which workers were “persuaded” to accept; failure to consult the trade union organizations on these restructuring initiatives and the re-hiring of laid-off workers under service contracts which made trade union membership impossible. In some cases, termination of employment violated collective agreements in force guaranteeing security of employment. Lastly, the complainants allege other anti-union acts at certain public institutions: refusal to grant trade union leave, dismissals and violation of the right of collective bargaining.
2. 534. The Committee notes the Government’s statements to the effect that restructuring was carried out in accordance with legislation and on the basis of technical studies which showed that it was necessary, by means of individual voluntary settlements, voluntary retirement plans or redundancies, with appropriate compensation and provision of training and job placement; some restructuring initiatives were planned in collective agreements; in the great majority of administrative or judicial appeals, the actions of management were found to have been justified. With regard to the allegations of failure to respect the trade union immunity of union officials in some cases, the Government has pointed out that a number of trade union organizations were established on the same date as restructuring orders were issued, with the aim of allowing the unions founders to invoke trade union immunity and thus avoid redundancy.
3. 535. As regards the restructuring of the public administration and the public services, the Committee is bound to recall that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 935].
4. 536. In the present case, the number of public institutions affected by restructuring shows that the measures in question are general measures and have affected all workers, not just trade union members. With the information currently available, the Committee is unable to determine whether the restructuring initiatives in question were undertaken solely for the purpose of rationalization or whether, under cover of those initiatives, there have been acts of anti-union discrimination. However, the supporting documents sent in indicate that there are legal means for challenging the measures affecting trade unionists. As regards trade union officials, the complainant states that some were dismissed without the suspension by a court of their trade union immunity, which is required by law. The Committee refers to a principle which it has emphasized on previous occasions:
   • In cases of staff reductions, the Committee has drawn attention to the principle contained in the Workers’ Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce (Article 6(2)(f)) [see Digest, op. cit., para. 960].
5. 537. Under these circumstances, the Committee requests the Government to take cognizance of this principle and to investigate whether in the public institutions concerned in this case the trade union immunity of the trade union officials were suspended by a court (as required by law), and if that is not the case, to take steps to reinstate them in their posts without loss of pay and, if that is not feasible, to provide them with full compensation.
6. 538. As regards the failure to consult the trade union organizations concerned during some of the restructuring initiatives, the Committee notes that the Government indicates only that the restructuring processes in the Administrative Department for Community Action, the Cundinamarca Public Works Department and the Bogotá Public Works Department were planned in collective agreements and that, with regard to the other restructuring processes, the Government states that they were ordered through legislation, ordinances or decrees and administrative decisions. The Committee deeply regrets that in certain cases the authorities did not consult or try to reach an agreement with the trade unions.
7. 539. In this regard, the Committee has indicated on a number of occasions its regret that in the rationalization and staff-reduction process, the government did not consult or try to reach an agreement with the trade union organizations [see Digest, op. cit., final sentence of para. 935]. The Committee urges the Government to take measures to ensure that in future the trade union organizations concerned are duly consulted.
8. 540. With regard to the complainants’ allegations regarding the rehiring of dismissed workers under service contracts which, according to the complainants, do not allow the worker to join a union, the Committee regrets that the Government has not sent its observations on the matter, and recalls that under the terms of Convention No. 87, all workers without distinction must enjoy the right to join organizations of their choosing. The Committee requests the Government to ensure that this principle is respected.
9. 541. As regards other allegations of anti-union discrimination, namely: (a) the dismissal of SINTRABENEFICENCIAS officials for setting up a union in Cundinamarca district; and (b) refusal to grant trade union leave and subsequent dismissal of SINTRASISE officials in the Transport Department, the Committee regrets that no observations have been received from the Government, requests the Government to carry out an investigation in this matter and, if the allegations are found to be true, to take measures to reinstate the dismissed workers and ensure that the right to trade union leave is effectively enforced.
10. 542. Lastly, as regards the allegation concerning violations of the right of collective bargaining at El Valle University, the Committee notes with interest the Government’s statement to the effect that a final agreement was signed on 3 July 2002.

The Committee's recommendations

1. 543. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take account of the principle according to which a priority should be given to workers’ representatives with regard to their retention in employment in case of reduction of the workforce.
   • (b) The Committee requests the Government to investigate whether in the public institutions concerned in the present case the trade union immunity of trade union officials has been suspended by a court (as required by law) and, if that is not the case, to take steps to reinstate them in their posts without loss of pay and, if that is not feasible, to provide them with full compensation.
   • (c) Deeply regretting that in certain cases the authorities did not consult or try to reach an agreement with the trade unions, the Committee urges the Government to take measures to ensure that in any restructuring initiatives in future the relevant trade union organizations are duly consulted.
   • (d) As regards the complainants’ allegations regarding the rehiring of dismissed workers under service contracts which, according to the complainants, do not allow workers to join unions, the Committee recalls that, under the terms of Convention No. 87, all workers without distinction must enjoy the right to join organizations of their choosing. The Committee requests the Government to ensure that this principle is respected.
   • (e) As regards the other allegations regarding anti-union discrimination, which are: (a) the dismissal of SINTRABENEFICENCIAS officials for setting up a union in Cundinamarca district; and (b) the refusal to grant trade union leave and subsequent dismissal of SINTRASISE officials in the Transport Department, the Committee requests the Government to carry out an investigation in this matter and, if the allegations are found to be true, to take measures to reinstate the dismissed workers and ensure that the right to trade union leave is effectively enforced.