Rapport intérimaire - Rapport No. 351, Novembre 2008

Cas no 2356 (Colombie) - Date de la plainte: 30-MAI -04 - Clos

Allegations: The National Union of Public Employees of the National Service for Training (SENA) (SINDESENA), the Union of Employees and Workers of SENA (SINDETRASENA) and the Single Confederation of Workers of Colombia (CUT) allege the collective dismissal of trade union members and trade union leaders as part of a restructuring process; the refusal to register the trade union SINDETRASENA; the refusal by the National Service for Training (SENA) to negotiate with the trade union organizations; the Academic Trade Union Association of Lecturers of the University of Pedagogy and Technology of Colombia (ASOPROFE-UPTC) alleges the dismissal of a trade unionist, and the Cali Municipal Enterprises Union (SINTRAEMCALI) alleges that the administrative authority declared a permanent assembly staged within the Municipal Enterprises of Cali (EMCALI) to be illegal and that this decision gave rise to the dismissal of 49 trade union members and leaders

1. 381. The Committee last examined this case at its meeting in November 2007 and submitted an interim report to the Governing Body [see 348th Report, paras 320–378, adopted by the Governing Body at its 296th Session].
2. 382. The National Union of Public Employees of the National Service for Training SENA (SINDESENA) sent new allegations in a communication dated 2 June 2008. The Cali Municipal Enterprises Union (SINTRAEMCALI) sent additional information in communications dated 30 January and 10 June 2008. The Academic Trade Union Association of Lecturers of the University of Pedagogy and Technology of Colombia (ASOPROFE-UPTC) sent new allegations in a communication dated 22 October 2008.
3. 383. The Government sent its observations in communications dated 18 February, 15 September and 17 October 2008.
4. 384. 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

1. 385. In its previous examination of the case in November 2007, the Committee made the following recommendations [see 348th Report, para. 378]:
   • (a) With regard to the dismissal of eight SINDESENA trade union leaders as part of the process of restructuring SENA, noting that the Government sends information on three of the trade union leaders, the Committee requests the Government to continue to keep it informed with regard to the cases still pending regarding the lifting of the trade union immunity of the remaining five trade union leaders (Wilson Neber Arias Castillo, Edgar Barragán Pérez, Pedro Sánchez Romero, Carlos Rodríguez Pérez and Oscar Luis Mendívil Romero).
   • (b) As to SENA’s refusal to bargain collectively, the Committee once again requests the Government to take the necessary measures to ensure that, in consultation with the trade union organizations concerned, legislation is amended without delay in order to allow employees of the public administration to bargain collectively and to bring it into line with the Conventions ratified by Colombia. The Committee requests the Government to keep it informed of any developments in this regard, and reminds it that it may avail itself of the technical assistance of the Office.
   • (c) The Committee requests the Government to keep it informed of the final outcome of the disciplinary proceedings against Mr Ricardo Correa Bernal, Vice-Chairperson of the Medellín Subdirective and Secretary of the organization’s national committee.
   • (d) As to the declaration of illegality concerning a permanent assembly held by SINTRAEMCALI within EMCALI, which led to the dismissal of 45 trade union members and six union leaders:
   • (i) the Committee once again requests the Government to take the necessary measures to amend article 451 of the Substantive Labour Code, so that responsibility for declaring strikes or work stoppages illegal may be placed with an independent body which has the confidence of the parties involved, and to keep it informed of any developments in this regard;
   • (ii) the Committee expresses the firm hope that the Council of State will issue a ruling in the near future with regard to the occurrence of a work stoppage and the declaration of illegality issued by the Ministry of Social Protection in resolution No. 1696 of 2 June 2004, and trusts that the Council of State will take into account the principles set forth in the preceding paragraphs concerning the requirement for investigations and the declaration of illegal strikes to be undertaken by an independent authority. The Committee requests the Government to keep it informed in this regard;
   • (iii) as to the dismissal of 45 trade union members and six leaders for alleged participation in the work stoppage, the Committee once again requests the Government, in the light of the Council of State’s ruling, once handed down, to re-examine the situation of those dismissed and to keep it informed in this regard;
   • (iv) as to the investigation launched before the Office of the Attorney-General into the violent events that occurred, the Committee requests the Government to provide information without delay;
   • (v) as to the launch of 462 separate disciplinary proceedings and the pressure put on workers not to discuss trade union issues under threat of dismissal, the Committee once again requests the Government to take the necessary measures to ensure that an independent investigation is carried out into these allegations and to keep it informed in this regard.
   • (e) The Committee requests the Government to keep it informed of the final outcome of the appeal against the judicial ruling ordering the reinstatement of Ms Isabel Cristina Ramos Quintero.

B. New allegations

1. 386. In its communication dated 2 June 2008, the SINDESENA states that, in 2000, the management of SENA and the Ministry of Labour (now of Social Protection) and SINDESENA signed a workplace agreement, which was generally observed until the arrival of the current management. In 2004 and 2005, the existing trade union guarantees were denied, all trade union leave was cancelled, funding for tickets to guarantee that national trade union leaders are able to travel to exercise their mandate to defend the trade union members’ interests as well as other statutory obligations were withdrawn, and transport was not provided for regional and national assemblies. The publication that SENA historically produced for SINDESENA, at its premises, and the provision of the supplies necessary for the trade union to operate were also suspended. As a result of this failure to comply with the agreement, the functioning of the trade union has been significantly affected and its activities have had to be suspended. Disciplinary proceedings were launched against several trade union leaders, including the Chairperson, Ms Aleyda Murillo, and the secretary of political affairs, Mr Wilson Arias Castillo, who, given their statutory obligations, had to carry out their trade union responsibilities without having been authorized to take trade union leave. Furthermore, there has been an unjustified delay in the response to the request for the authorization or modification of trade union leave, which demonstrates a failure to comply with the directive of the Ministry of Social Protection issued in December 2007. Furthermore, the number of authorizations for trade union leave is insufficient, which prevents the comprehensive implementation of the programmes of work and action plans adopted by SINDESENA.
2. 387. The complainant organization alleges that, as part of the policy of persecution, many disciplinary proceedings have been initiated in various regional offices against trade union leaders and members for their participation in activities planned by the trade union. In recent years, mass disciplinary proceedings have been launched in several regional offices, including the Capital District, Cundinamarca, Yopal, Córdoba, Tolima, Valle, Caldas, Antioquia, Norte de Santander, Atlántico and Magdalena, etc. In addition, individual disciplinary proceedings have been initiated in some regional offices against trade union leaders, such as María Inés Amézquita, Jesús Horacio Sánchez, Carlos Arturo Rubio, Gustavo Gallego, Aleyda Murillo Granados and Carmen Elisa Acosta.
3. 388. SINDESENA states that, as a result of the restructuring undertaken in 2004, the management of SENA decided to suppress the posts of eight trade union leaders. As a result of this decision, two trade union leaders in the regional offices of Guajira and Antioquia were removed from service. With regard to Mr Wilson Arias Castillo, one of the eight leaders whose posts were suppressed, the management arbitrarily denied him the legal compensation to which he was entitled as a result of the suppression of his post. SINDESENA alleges that all these measures were anti-union in nature and highlights that, while the company is seeking to lift the trade union immunity of these workers in order to dismiss them, at the same time, vacancies at the same hierarchical level are being advertised and SENA has not acceded to the request or the legal instruction to reinstate these workers.
4. 389. SINDESENA alleges that the current management has systematically refused to participate in meetings and discussions with the trade union. Furthermore, the management of SENA has accused the trade union of having links with professional demonstrators and has searched the trade union headquarters for explosives. Since then, the trade unionists leaders feel more at risk pursuing their activities in many of the offices. In several regional offices, such as those in Antioquia, Atlántico, Cundinamarca, Boyacá, Tolima, Bolívar and Valle, trade unionists leaders are harassed and persecuted: they are constantly singled out and discredited; they are transferred without being consulted to places that are cut off from trade union activities; and four trade union leaders are being subject to irregular disciplinary proceedings that, illegally and with no respect for due process or the right to a defence, seek to dismiss them for allegedly participating in a day of protest as part of the SENA defence plan.
5. 390. The complainant organization states that the conditions in some of their branches within SENA premises have been systematically made worse, or the branches have been removed entirely, the telephone service has been disconnected, and in several regional offices the access of trade union leaders and members to the premises is restricted. In the regional offices of Valle del Cauca and Antioquia, for several years there have been attempts to remove the trade union from the headquarters assigned to them in SENA, which has required the intervention of the Ministry of Social Protection, among others.
6. 391. In clear violation of the freedom of association, several trade union leaders have been transferred without being consulted, which has led to a decrease in their earnings and affected their family life. Likewise, the organization’s right to the use of notice boards and electronic mail to circulate information is not respected.
7. 392. SINDESENA states that, on 10 October 2007, it submitted a list of grievances, but that the management stated that it was “legally impossible to negotiate the lists of grievances of public employees”, and insisted on maintaining an outdated view with regard to the right of bargaining of public servants.
8. 393. SINDESENA further alleges that, after being kidnapped and tortured, Jesús Heberto Caballero Ariza, a SINDESENA trade union leader who was employed in the Atlántico Executive Subcommittee as a substitute legal adviser and in SENA as an ethics instructor, was murdered on 16 April 2008.
9. 394. In the afternoon of Sunday 18 May 2008, unidentified armed individuals forcibly entered the SINDESENA trade union headquarters located at Nos 8–24, street No. 46, Bogotá, where SINDESENA trade union leaders and members visiting Bogotá usually stay. The employee responsible for looking after the house was attacked and beaten by the perpetrators who tied her up, searched the suitcases of the Chairperson of SINDESENA for the Atlántico Executive Subcommittee, stole money, a USB memory stick and documentation that contained reports on the recent murder of Mr Jesús Heberto Caballero Ariza, as well as evidence of threats against other trade union leaders, which were being guarded by the Chairperson of that trade union sub-office. Moreover, the trade union headquarters are constantly being watched by guards stationed outside.
10. 395. In its communications dated 30 January and 10 June 2008, the SINTRAEMCALI refers to the matters that are already being examined in the present case, and highlights the lack of willingness on the part of the Municipal Enterprises of Cali (EMCALI) to reconcile the situation, having confirmed its intention not to reinstate the dismissed workers.
11. 396. In its previous communication, dated 7 September 2007, SINTRAEMCALI states that the Council of State nullified Decision No. 1696, of 2 June 2004, issued by the Ministry of Social Protection, by which it had declared that the collective work stoppage carried out on 26 and 27 May 2004 was illegal, and which led to the dismissal of 51 workers.
12. 397. In a communication dated 22 October 2008, the ASOPROFE-UPTC alleges threats directed against the President of the trade union.

C. The Government’s observations

1. 398. In its communications dated 18 February, 15 September and 17 October 2008, the Government sends the following observations: as to subparagraph (a) of the recommendations made by the Committee when it last examined this case, the Government states that, with regard to the cases concerning the lifting of the trade union immunity of trade union leaders as part of the restructuring of the National Service for Training (SENA), the Secretary-General of SENA provided the following information:
   • – Marco Tulio Ramírez Brochero: the First Labour Court of the Circuit of Riohacha, in a ruling in the first instance, handed down on 15 December 2004, and the High Court of Riohacha, in a ruling in the second instance handed down on 3 March 2005, authorized SENA to terminate the legal and regulatory relationship of the individual concerned. On that basis, SENA issued Decision No. 000795 of 13 March 2005, retiring him from service. A letter was sent to Mr Ramírez Brochero informing him that he was being removed owing to the elimination of his post, as ordered in article 8 of Decree No. 250 of 2004, and that, by law, he had the right to compensation or to be transferred to an equivalent post in the public sector within the following six months, and that he should inform the Director-General of SENA of his decision in writing within the next five days. As Mr Ramírez Brochero gave no indication of his decision within that period, under the terms of article 46 of Decree No. 1568, and article 30 of Decree No 760 of 2005, he was deemed to have accepted the compensation, and was accordingly paid the sum of 41,077,316 Colombian pesos through Decision No. 000922 of 1 June 2005.
   • – Leonel Antonio González Alzate: the High Court of Armenia handed down a ruling in the second instance, dated 28 November 2005, in which it refused authorization to remove the civil servant (who enjoyed trade union immunity) from service. For this reason, his post was not suppressed and Mr González Alzate is still a staff member.
   • – Juan Clímaco Muriel Galeano: the Eleventh Labour Court of the Circuit of Medellín, in a ruling handed down in the first instance on 20 September 2005, and the High Court of Medellín, in a ruling handed down in the second instance on 2 February 2006, authorized SENA to terminate the legal and regulatory relationship with the individual concerned. Consequently, SENA issued Decision No. 000636 of 29 March 2006, retiring him from service. A letter was sent to Mr Muriel Galeano informing him that he was being removed owing to the elimination of his post, as ordered in article 8 of Decree No. 250 of 2004, and of his rights, by law, with regard to the suppression of his post. He chose, within the legal time frame, to be transferred to another equivalent post within the following six months. As there were no equivalent vacant posts to which he could be appointed in SENA, his request was referred on 31 May 2006 to the National Civil Service Commission by letter No. 019502, in order that he might be placed elsewhere in the public service. The National Civil Service Commission replied with letter No. 000547, dated 22 January 2007, filed in our central archive on 30 January 2007 under No. 002406, which states that “… his due reinstatement was not possible because no equal or equivalent posts were found, therefore, he should be offered a settlement and paid the corresponding compensation”. Since Mr Juan Clímaco Muriel Galeano passed away on 9 September 2006, SENA paid the compensation to which he was entitled to Ms Blanca Nelly Alzate de Muriel, as his spouse and the sole claimant, in accordance with article 46, paragraph 3, of Decree No. 1568 of 1998 and article 28, paragraph 3, of Decree No. 760 of 2005, through Decision No. 000724, of 25 April 2007.
   • – Oscar Luis Medivil Romero: the High Court of Santa Marta, in a ruling handed down in the second instance on 2 November 2006, refused authorization to retire the civil servant (who enjoyed trade union immunity) from service. For this reason, his post was not suppressed and Mr Medivil Romero is still a staff member.
   • – Edgar Barragán Pérez: the High Court of Cúcuta, in a ruling handed down in the second instance on 8 February 2007, refused authorization to remove the civil servant (who enjoyed trade union immunity) from service. For this reason, his post was not suppressed and Mr Barragán Pérez is still a staff member.
   • – Wilson Neber Arias Castillo: the High Court of Cali, in a ruling handed down in the second instance on 10 December 2007, refused authorization to remove the civil servant (who enjoyed trade union immunity) from service; however, the public employee resigned from his post on 30 July 2007 and the resignation was accepted through Decision No. 000622, of 30 July 2007. He is therefore no longer a member of staff.
   • – Carlos Rodríguez Pérez: the Court of the First Instance refused authorization to remove the civil servant from service; on appeal, the High Court of Barranquilla also refused to authorize the dismissal.
   • – Pedro Sánchez Romero: no judicial ruling has been handed down; the proceedings are under way in the Fourth Labour Court of the Cartagena Circuit.
2. 399. As for the new allegations presented by SINDESENA on the refusal to grant trade union leave, the launching of disciplinary proceedings against several trade union leaders, the refusal by SENA management to meet with the trade union in order to discuss pension matters, threats against trade union officials, the refusal by SENA to allow the trade union to publish its comments in the office board and a journal circulating internally, the Government indicates the following:
   • – With regard to the facts relative to human rights, like threats, etc., it requests that these issues be examined in the framework of Case No. 1787, so that it may send the corresponding observations in conformity with that process.
   • – With regard to the refusal of trade union leave, in the year 2004, the Secretary-General of SENA authorized 1,025 working days of paid trade union leave for the officers of the SINDESENA national board and subdirectorates in order to carry out various activities as well as another 744 working days of leave. The Government provides explanatory tables on the leave granted, the subdirectorates which benefited from it and the trade union activities to which it was allocated. For 2005, 2,332 working days of paid trade union leave were authorized in favour of the national board of SINDESENA and its subdirectorates, up until 31 December 2005. The Government adds, nevertheless, that administrative investigations were instituted on the refusal to grant trade union leave. As for 2006, the General Secretary of the SENA authorized trade union leave in official letters for the various activities of the national board and the subdirectorates of SINDESENA in the whole country (these are enumerated in detail in the Government’s reply), thus having authorized the totality of trade union leave.
   • – As for the refusal to pay travel costs, the Government indicates that by virtue of article 41 of Decree 3738 of 2004 and resolution 0574 of 1995, public servants are paid travel costs only in the performance of their functions.
   • – As for the disciplinary proceedings against Alwyda Murillo and Wilson Arias Castillo, the SENA indicated that they were shelved by decision of 25 August 2006. The other proceedings concerning Maria Ines Amezquita, Jesús Horacio Sánchez, Carlos Arturo Rubio and Gustavo Gallego, public servants of the Quidío region, are still under way.
   • – As for the SINDESENA premises, the Government indicates that in communications Nos 2-2008-008044 of 15 April 2008 and 2-2008-009450 of 6 May 2008, sent to the President of SINDESENA, the SENA carried out the necessary works to ensure improvements in the premises and better conditions in the headquarters of SINDESENA Valle Subdirectorate.
   • – As for the denial of the right to use office boards, the Government indicates that the trade union used the office board in order to make defamatory accusations against the administration of its public servants. Resolution No. 612 of 2008 regulated the optimum use of office boards in order to ensure that this means of communication is used in a harmonious manner and to guarantee respect for fundamental rights. The Government indicates that resolution No. 00284 was issued on 6 February 2008 in order to set institutional policies and measures for the administration, operation and use of the electronic mail system and Internet access in the office. SENA respects the role of the trade union and allows the use of electronic mail for carrying out representation activities.
3. 400. As to subparagraph (b) of the recommendations, the Government is currently reaching an agreement with the Sectoral Committee of the Public Sector regarding the text of a decree whose main objective is to promote the collective bargaining of public employees. As to subparagraph (c) of the recommendations, the Government states, with regard to the disciplinary proceedings against Mr Ricardo Correa Bernal, that the Secretary-General of SENA stated that two disciplinary procedures had been launched against Mr Correa Bernal. The first was for physical aggression towards a SENA instructor, which resulted in a ruling imposing a three-month suspension from his duties. That ruling was confirmed on appeal. The second procedure was filed by an order dated 12 December 2007.
4. 401. The company states that the Constitutional Court supported the proceedings prior to the dismissal of the workers and trade union leaders carried out by EMCALI, and determined that its actions respected the principles of freedom of association and trade union rights, and therefore did not grant the right of tutela for the protection of constitutional rights. SINTRAEMCALI had submitted a tutela action to the High Court of Valle del Cauca, requesting the reinstatement of the workers.
5. 402. As to subparagraph (d)(i) of the recommendations, the Government states that it has presented to Congress Bill No. 190, of 2007, transferring the authority to declare a strike illegal to the labour courts, which are part of the judiciary and completely independent from the executive. This bill will be debated by Congress in special sessions convened by the Government from February 2008.
6. 403. Furthermore, it states that the Colombian Substantive Labour Code establishes that any collective work stoppage involving public services is illegal, that the Ministry of Social Protection is responsible for declaring whether stoppages are illegal, and, if this is the case, the employer is at liberty to dismiss, for that reason, those who took an active part in the work stoppage. With regard to the workers with trade union immunity, their dismissal, in accordance with the law, shall not require judicial authorization. On this legal basis, the Ministry of Social Protection issued Decision No. 1696, of 2 June 2004, in which it declared that the occupation of the EMCALI premises was an illegal work stoppage and therefore the company proceeded to take steps to prove the direct participation of the workers involved in the occupation in order to dismiss them, while complying with all legal and constitutional requirements.
7. 404. As to subparagraph (d)(ii) regarding the suit filed by SINTRAEMCALI before the honourable Council of State against Decision No. 1696, requesting that it be nullified, the company states that the decision taken by this administrative court does not have any affect, nor is it retroactive or reversible, with regard to the actions taken by EMCALI as a result of the decision declaring that the work stoppage was illegal, since that decision is covered by the presumption of legality and EMCALI took action on the basis of that administrative act. The company states that it is not possible for the Council of State to examine this case on the basis of the “principles set forth concerning the requirement for investigations and declarations of illegal strikes and work stoppages be undertaken by an independent authority” because it is not legally valid.
8. 405. The Government states that the Council of State issued its ruling on 8 March 2008, which was published in a notification between 29 August and 2 September. In its ruling, the Council of State nullified Decision No. 1696, but it rejected the other claims with regard to the dismissal of the members of SINTRAEMCALI who participated in the permanent assembly. The Government states that the company submitted an appeal for clarification against the ruling.
9. 406. As to subparagraph (d)(iv), the Government states that the Cooperation and International Relations Office requested information from the coordinator of the Group for the Defence of Human Rights of the Ministry of Social Protection, and that, when that information has been received, a copy will be sent.
10. 407. As to subparagraph (d)(v), the Government wishes to know to which authority the Committee is referring when it requests that an independent investigation be carried out, since, as was clarified on a previous occasion, article 29 of the Constitution provides for due process in all judicial and administrative proceedings. According to that article, “no one may be judged except in accordance with laws that existed prior to the commission of the offence of which the individual is accused, by a competent judged or tribunal, and in accordance with all the proper formalities required in each case”. Furthermore, “any evidence obtained in violation of due process shall be null and void”. Therefore, the workers who are included in the disciplinary proceedings are covered by the guarantee of due process, and therefore their right to a defence will be respected.
11. 408. The Government adds that the fact that the unionized workers are the subject of disciplinary proceedings does not mean that their right to form trade unions and freedom of association will be disregarded. Furthermore, Colombian legislation provides for mechanisms to defend workers, in the event that any of their fundamental rights are violated.
12. 409. In this regard, the Government states that, since 5 September 2007, the matters raised in this case are also being examined by the Special Committee on the Handling of Cases referred to the ILO (CETCOIT).
13. 410. As to subparagraph (e) of the recommendations, regarding the matter relating to Ms Isabel Cristina Ramos Quintero, the head of the legal office at the University of Pedagogy and Technology of Colombia (UPTC) stated that Ms Isabel Cristina Ramos Quintero filed an action for the protection of constitutional rights (tutela), which was processed by the Third Labour Court of Tunja. In its ruling the court ordered as a temporary measure to be completed within 48 hours that the university should “renew her contract as a fixed-term lecturer at the university … As a result, the UPTC, by Decision No. 3685, of 9 September 2005, appointed Ms Isabel Cristina Ramos Quintero as a full-time fixed-term lecturer. In turn, the university, within the legal time limit and supported by the law and Constitution, appealed against the ruling of the Third Labour Court of the Tunja Circuit before the Labour Tribunal of the High Court of Tunja, which, by its ruling of 11 October 2005, overturned the ruling of the Third Labour Court of the Tunja Circuit as part of tutela Case No. 2005-107, and thus the claims were rejected as unfounded. As a result of the above, Decision No. 3685 was overturned by Decision No. 3939, dated 14 October 2005, while the legal decision underpinning it was withdrawn from the legal system. It is important to point out that at present the lecturer, Ms Ramos Quintero, is employed by the university as a part-time lecturer, in accordance with Decision No. 2588, of 1 August 2007. Finally, at no time has the university disregarded the trade union rules; on the contrary, it adheres to the principles of the collective rights in force in Colombia and complies with the judicial rulings that were handed down in this case: despite the above, the lecturer was invited to be included in the UPTC database of eligible fixed-term lecturers and professors, and at present she is working part time as a fixed-term lecturer”.

D. The Committee’s conclusions

1. 411. The Committee takes note of the new allegations presented by the SINDESENA and the SINTRAEMCALI, as well as the Government’s observations regarding the recommendations made by the Committee when it last examined the case. The Committee further notes that the matters relating to the permanent assembly carried out at EMCALI are being examined by the CETCOIT with a view to finding a comprehensive solution to the conflict.
   • Restructuring the National Service for Training
2. 412. As to subparagraph (a) of the recommendations, with regard to the cases concerning the lifting of the trade union immunity of trade union leaders as part of the restructuring process of the SENA, the Committee notes that, the complainant indicates in its new allegations that Mr Wilson Arias Castillo has been denied payment of the compensation to which he was entitled. The Committee also notes that, for its part, the Government states that, with regard to Mr Oscar Luis Medivil Romero, Mr Edgar Barragán Pérez, Mr Carlos Rodríguez Pérez and Mr Wilson Neber Arias Castillo, the judicial authority refused authorization to remove these civil servants (who enjoyed trade union immunity) from service. As a result, Mr Medivil Romero and Mr Barragán Pérez are still members of staff. Mr Wilson Arias Castillo resigned from his post on 30 July 2007 and the resignation was accepted through Decision No. 000622, of 30 July 2007. He is therefore no longer a staff member. The Committee notes that during the performance of his duties he had been granted trade union leave on many occasions.
3. 413. The Committee notes, with regard to Messrs Ramirez Brochero, Gonzalez Alzate and Galeano, that the judicial authority authorized the lifting of the trade union immunity and they received the corresponding compensation. The case of Mr Pedro Sánchez Romero is pending before the Fourth Labour Court of the Cartagena Circuit. The Committee requests the Government to keep it informed of the final outcome of this case.
4. 414. As to subparagraph (b) of the recommendations, with regard to the refusal of SENA to bargain collectively, the Committee notes that in its last communication SINDESENA refers to the persistent nature of SENA’s refusal. The Committee notes that, for its part, the Government states that it is at the agreement stage with the Sectoral Committee of the Public Sector regarding the text of a decree to promote the collective bargaining of public employees. In this regard, recalling that the Committee has already indicated on various occasions that, even though collective bargaining in the public service can be subject to specific modalities, the right to bargain collectively has been recognized in general for all public employees on the basis of the ratification of Conventions Nos 151 and 154. The Committee requests the Government to keep it informed of developments regarding the decree to promote the collective bargaining of public employees.
5. 415. As to subparagraph (c) of the recommendations, with regard to the disciplinary proceedings against Mr Ricardo Correa Bernal, the Committee notes the information provided by the Government, according to which two disciplinary procedures have been launched. The first was for physical aggression towards a SENA instructor, which resulted in a ruling imposing a three-month suspension from his duties. That ruling was confirmed on appeal. The second procedure was filed by an order dated 12 December 2007.
6. 416. With regard to the new allegations regarding: the refusal to grant trade union leave and other facilities that had been agreed on, such as airline tickets to attend trade union meetings, trade union premises and notice boards, the Committee takes note of the detailed information provided by the Government on the leave granted, the travel and the use of the office board and premises. The Committee recalls the importance of providing facilities for the proper conduct of trade union activities, and requests the Government to take the necessary measures to guarantee that the trade union can carry out its activities properly with the necessary facilities, as it has been doing until recently and to keep it informed of the disciplinary proceedings under way.
7. 417. As regards the new allegations concerning the institution of disciplinary proceedings for the trade union activities of various trade union officials (María Inés Amézquita, Jesús Horacio Sánchez, Carlos Arturo Rubio, Gustavo Gallego, Aleyda Murillo Granados and Carmen Elisa Acosta), the Committee notes the detailed information provided by the Government and requests it to keep the Committee informed of the proceedings under way.
8. 418. The allegations relating to the murder of Mr Jesús Heberto Caballero Ariza on 16 April 2008, the violent attack at the headquarters of SINDESENA on 18 May 2008 in Bogotá, and the accusations against the trade union of maintaining links with professional agitators will be examined within the framework of Case No. 1787 that is under examination by the Committee.
   • Cali Municipal Enterprises
9. 419. As to subparagraph (d) of the recommendations regarding the declaration of illegality by the administrative authority concerning a permanent assembly held by SINTRAEMCALI within EMCALI, which led to the dismissal of 45 trade union members and six union leaders, the Committee had requested the Government to take the necessary measures to amend article 451 of the Substantive Labour Code, so that responsibility for declaring strikes or work stoppages illegal may be placed with an independent body which has the confidence of the parties involved. In this regard, the Committee notes with interest the recent adoption of Act No. 1210 relating to the amendment of that article, by virtue of which the legality or illegality of a collective work stoppage shall be pronounced by the labour courts.
10. 420. As to subparagraphs (d)(ii) and (iii) of the recommendations regarding the pending decision of the Council of State on the legality of Decision No. 1696, of 2 June 2004, by which the permanent assembly (or work stoppage, according to the company) in May 2004 was declared illegal and the dismissal of 45 trade union members and six leaders, the Committee notes that: (1) through Ruling No. 2004-00186-01, the Council determined that the decision was null and void; (2) but it rejected the claims regarding the dismissal of 45 trade union members and six leaders; and (3) the company, EMCALI, submitted an appeal for clarification. In this regard the Committee requests the Government to keep it informed of the final outcome of the appeal for clarification which is pending.
11. 421. As to subparagraph (d)(iv) of the recommendations regarding the investigation launched by the Office of the Attorney-General into the violent events that took place during the permanent assembly, the Committee notes that a request for information has been made to the coordinator of the Group for the Defence of Human Rights of the Ministry of Social Protection and that information will be provided in this regard. The Committee expresses serious concern regarding the fact that the Government has not provided specific information on the investigation into the violent events that took place in EMCALI in May 2004, recalls the importance of conducting the investigations without delay and urges that the investigation be concluded in the near future and that it will as a result be possible to identify and punish those responsible.
12. 422. As to subparagraph (d)(v) of the recommendations regarding the launch of 462 disciplinary proceedings and the pressure put on workers not to discuss trade union issues under threat of dismissal, the Committee notes that the Government states that, within the framework of these proceedings, due process is respected, but does not send any concrete information in this regard. In these circumstances, the Committee once again requests the Government to take the necessary measures to guarantee that the workers of EMCALI can exercise their trade union rights freely and without fear of reprisals, to carry out an independent investigation that has the confidence of the parties involved (such an investigation could be carried out by the judicial authority) into the pressure, threats and disciplinary proceedings against the workers, and to keep it informed in this regard.
    • University of Pedagogy and Technology of Colombia
13. 423. As to subparagraph (e) of the recommendations regarding the appeal against the judicial decision ordering the reinstatement of Ms Isabel Cristina Ramos Quintero, the Committee notes the information provided by the Government, according to which Ms Ramos Quintero was reinstated by Decision No. 3685, by virtue of a tutela ruling for the protection of constitutional rights, but that the university appealed the ruling before the Labour Tribunal of the High Court of Tunja, which overturned it, thus rescinding Decision No. 3685. However, the Committee notes the information, according to which Ms Ramos Quintero is currently employed part-time as a lecturer by the university, in accordance with Decision No. 2588 of 1 August 2007.
14. 424. With regard to the latest communication of the ASOPROFE-UPTC concerning threats against the President of the trade union, the Committee requests the Government to take the necessary measures so that an investigation is carried out in this respect and that adequate protection is provided to Mr Luis Diaz Samboa. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 425. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the cases concerning the lifting of the trade union immunity of trade union leaders as part of the restructuring process of the National Service for Training, the Committee requests the Government to keep it informed of the final outcome of the proceeding involving Pedro Sánchez Romero.
   • (b) With regard to the refusal of SENA to bargain collectively, the Committee, recalling that, even though collective bargaining in the public service can be subject to specific modalities, the right to bargain collectively has been recognized in general for all public employees on the basis of the ratification of Conventions Nos 151 and 154, requests the Government to keep it informed of developments regarding the decree to promote the collective bargaining of public employees.
   • (c) With regard to the new allegations regarding the refusal to grant trade union leave and other facilities that had been agreed on, such as plane tickets to attend trade union meetings, trade union premises and notice boards, the Committee, recalling the importance of providing facilities for the proper conduct of trade union activities, requests the Government to take the necessary measures to guarantee that the trade union can carry out its activities properly with the necessary facilities, as it has been doing until recently.
   • (d) The Committee requests the Government to keep it informed of the disciplinary proceedings under way in respect of six trade union leaders of SINDESENA.
   • (e) As to the declaration of illegality by the administrative authority concerning a permanent assembly (a work stoppage), held by SINTRAEMCALI within EMCALI, which led to the dismissal of 45 trade union members and six leaders for their alleged participation in the work stoppage (Decision No. 1696), the Committee requests the Government to keep it informed of the final outcome of the appeal for clarification which is pending.
   • (f) With regard to the investigation launched before the Office of the Attorney-General into the violent events that took place during the permanent assembly, the Committee expresses serious concern regarding the fact that the Government has not provided specific information on the investigation into the violent events that took place in EMCALI in May 2004, recalls the importance of conducting the investigations without delay and urges that the investigation be concluded in the near future and that it will as a result be possible to identify and punish those responsible.
   • (g) With regard to the launch of 462 disciplinary proceedings and the pressure put on workers not to discuss trade union issues under threat of dismissal, the Committee once again requests the Government to take the necessary measures to guarantee that the workers of EMCALI can exercise their trade union rights freely and without fear of reprisals, to carry out an independent investigation that has the confidence of the parties involved (such an investigation could be carried out by the judicial authority) into the pressure, threats and disciplinary proceedings against the workers and to keep it informed in this regard.
   • (h) With regard to the latest communication of the ASOPROFE-UPTC concerning threats against the President of the trade union, the Committee requests the Government to take the necessary measures so that an investigation is carried out in this respect and that adequate protection is provided to Mr Luis Diaz Samboa. The Committee requests the Government to keep it informed in this respect.