Rapport définitif - Rapport No. 346, Juin 2007

Cas no 2504 (Colombie) - Date de la plainte: 12-JUIN -06 - Clos

Allegations: The Council of State cancelled the entry of the new Bucaramanga SINTRAFEC Committee executive board in the trade union register, stating that this sectional committee, created before 1965, did not fulfil the requirements laid down in article 55 of Act No. 50 of 1990

468. This complaint is contained in a communication dated 12 June 2006 presented by the Trade Union of Workers of the National Federation of Coffee Growers of Colombia (SINTRAFEC) and the Single Confederation of Workers (CUT).

1. 469. The Government sent its observations in a communication dated 27 November 2006.
2. 470. 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 complainants’ allegations

1. 471. In their communication dated 12 June 2006, SINTRAFEC and the CUT state that the SINTRAFEC trade union was created in 1959. Its statutes provide for the establishment of sectional branches with regional jurisdiction by departments or regions as well as the establishment of sectional committees which group together the members of neighbouring municipalities.
2. 472. According to the complainant organizations, article 55 of Act No. 50, 1990, modified the existing legal situation by laying down the requirement that at least 25 members of the sectional branches must work in the same municipality, and in the case of the committees, at least 12 members must work in the same municipality. The Bucaramanga Regional Committee of SINTRAFEC does not have 12 members.
3. 473. However, SINTRAFEC statutes established the sectional branches and committees before Act No. 50, 1990, was adopted and, once it came into force, the administrative authority continued to recognize SINTRAFEC’s right to maintain these bodies. In fact, article 55 of Act No. 50, 1990, was deemed to cover only trade unions founded after the standard was adopted.
4. 474. According to the allegations, the new executive board of the Bucaramanga SINTRAFEC Regional Committee in Santander Department was elected on 25 November 2000, in accordance with the statutes and the law. The administrative labour authority and the company were informed of the election. The administrative labour authority recognized the election and arranged for the new executive board of the Bucaramanga SINTRAFEC Regional Committee to be entered on the relevant register.
5. 475. The employers, however, applied to the administrative jurisdiction in question for the annulment of the administrative decision registering the sectional committee boards, which included the registration of the Bucaramanga Committee executive board. On 17 September 2004, the Council of State cancelled the registration, arguing that the body’s structure did not comply with the stipulations of article 55 of Act No. 50, 1990. The Council of State considers that as the legislation concerns public order since it deals with labour standards, it must be applied generally with immediate effect.
6. 476. The problem is therefore the refusal to register the trade union boards elected, generally on expiry of their statutory term of office, to replace the sectional departmental boards legally established before Act No. 50, 1990 came into force, because article 55 of the Act, prohibiting the creation of these sectional committees, is deemed to be applicable.
7. 477. According to SINTRAFEC when it appealed against the cancelled registration, Bucaramanga SINTRAFEC has, since its inception, consisted of workers from the Bucaramanga branch of Almacafé, SA and the Santander Departmental Committee of Coffee Growers. The same holds good in other parts of the country where sectional and regional committees also exist and many of their executive boards have been renewed and approved by the Ministry of Labour and Social Security.
8. 478. The trade unions attached a copy of the 1965 collective agreement, which recognizes the existence of the Bucaramanga Committee of SINTRAFEC. They also attached copies of resolution No. 2237 of 1999 by which the amendments to the SINTRAFEC statutes regarding legal domicile were recorded in the trade union register.
9. B. The Government’s reply
10. 479. In its communication dated 27 November 2006, the Government states that the Colombian State comprises three branches that function separately: the legislative, the executive and the judicial.
11. 480. The Government adds that it cannot intervene with regard to the allegations presented by the trade unions relating to the Council of State’s quashing of the resolution in which the Santander Territorial Directorate ordered the registration of the new executive board of the Bucaramanga Regional Committee of SINTRAFEC. It adds that the Council of State’s decision was based on article 55 of Act No. 50, 1990, which states that any trade union can provide in its statutes for the establishment of sectional sub-branches in municipalities outside its principal domicile in which it has no fewer than twenty-five (25) members. It can also provide for the creation of sectional committees in municipalities outside its principal domicile in which it has no fewer than twelve (12) members. There cannot be more than one sub-branch or committee per municipality.
12. 481. Article 55 was the subject of an appeal to the Supreme Court of Justice which ruled that it was applicable through decision No. 115 of 26 September 1991; subsequently, an appeal was brought before the Constitutional Court, which upheld in decision No. C-043 of 2006 that the article was applicable.
13. 482. In its arguments the Council of State indicated that there can be no doubt that it became operative immediately by virtue of articles 14 and 16 of the Labour Code, which state that labour standards, as they concern public order, take effect immediately. The following paragraph states that the Court considers that, even though the statutes of SINTRAFEC were approved by the Ministry of Labour, and the sectional committees existed before Act No. 50 of 1990 came into force, because labour standards concern public order, they take immediate effect; therefore the trade union branches must amend their statutes to bring them into line with the legal requirements of article 55 of Act No. 50, 1990, which is compulsory and must be complied with immediately.
14. 483. The Government concludes that it is incumbent on the trade union to align its structure with the new legal provisions. The Council of State, when ruling on the legality of the Santander Territorial Directorate’s decision, stated that the trade union was disregarding the labour standards in force by not aligning its statutes with those standards, which concern public order and demand immediate compliance; this point is not contrary to Convention No. 87.

C. The Committee’s conclusions

1. 484. The Committee observes that this case refers to the allegations presented by the CUT and SINTRAFEC that the Council of State cancelled the entry of the new executive board of the Bucaramanga Committee of SINTRAFEC in the trade union register on the grounds that the sectional committee, created before 1965, did not fulfil the requirements laid down in article 55 of Act No. 50, 1990, regarding the minimum number of members, and their domicile, even though it complied with the legal provisions in force at its inception.
2. 485. The Committee notes that, according to the Government, since Act No. 50 is a labour standard it concerns public order and demands immediate compliance. The Committee further notes that, as a result, the Council of State decided to revoke the labour inspector’s decision by which the new executive board of the Bucaramanga Sectional Committee would be registered.
3. 486. The Committee observes, first, that this case relates to the cancellation of the registration of the new executive board of a sectional committee that existed long before the adoption of the Act in 1990. In fact, the Bucaramanga Sectional Committee was founded before 1965, while the new requirements laid down in article 55 of Act No. 50 were adopted in 1990. Furthermore, it observes that the sectional committee functioned for 14 years (until the Council of State decision of 17 September 2004) without any objections following the adoption of the new Act; that the trade union introduced modifications to its statutes on other issues, which were duly registered without the administrative authority’s drawing attention to the failure to comply with the new requirements imposed by the Act; and that, according to the complainant organization, there are many sectional committees in the same situation which function without any problems. In these circumstances, the Committee requests the Government to take measures including, if necessary, legislative measures, so as to nullify the effects of the Council of State decision cancelling the registration and to register the new executive board of the Bucaramanga Sectional Committee without delay, and invites the trade union to adapt to the new legislation in force.

The Committee's recommendations

1. 487. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • With regard to the cancellation by the Council of State of the entry of the new Bucaramanga SINTRAFEC Committee executive board in the trade union register, the Committee requests the Government to take measures including, if necessary, legislative measures, so as to nullify the effects of the Council of State decision cancelling the registration and to register the new executive board of the Bucaramanga Sectional Committee without delay, and invites the trade union to adapt to the new legislation in force.