Rapport intérimaire - Rapport No. 355, Novembre 2009

Cas no 2617 (Colombie) - Date de la plainte: 24-SEPT.-07 - Clos

Allegations: The Union of Guards of the National Prison Service (SIGGINPEC) alleges that union members were branded as members of subversive organizations, that three union officials were dismissed while covered by trade union immunity; that disciplinary proceedings were instituted against the chairperson and the secretary of the national executive committee for holding information meetings; that union leave was denied, as was the provision of a union office and telephone line; and, lastly, that the National Prison Service (INPEC) drafted legislation aimed at changing the status of staff working in the prison guards and security service in such a way as to prevent trade union membership. For their part, the General Confederation of Labour (CGT) and the Association of Employees of the National Prison Service (ASEINPEC) also refer to the drafting of the legislative bill mentioned above and allege that a dismissal took place

1. 481. The complaints are contained in communications dated 24 September and 5 December 2007 and 27 May 2008 from the Union of Guards of the National Prison Service (SIGGINPEC), communications dated 31 May and 25 October 2008 and 28 May 2009 from the Association of Employees of the National Prison Service (ASEINPEC) and a communication dated 3 June 2008 from the General Confederation of Labour (CGT).
2. 482. The Government sent its observations in communications dated 27 August 2008 and 20 March 2009.
3. 483. 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), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 484. In their communications dated 24 September and 5 December 2007 and 27 May 2008, SIGGINPEC alleges that the National Prison Service (INPEC) authorities, through communication No. 7100-01-1893 of 3 October 2006 to the Ministry of Justice, named members of the trade union as possible guerrillas, which put the personal safety of union members at risk and resulted in the death of Mr Daniel Ruiz Bedoya and threats against trade union officials Messrs Arias Ramírez, de la Rosa Grimaldos, Rivera Sogamoso, Oviedo Mogollón and Barrera by paramilitary groups, leading to the internal transfer of these officials. This branding of officials as “guerrillas” was reported to the Attorney-General’s Office, which has not shed any light on the matter. Furthermore, proceedings were instituted before the Ministry of Social Welfare against INPEC (file No. 059808 of 23 March 2007 with Inspectorate No. 13), with a hearing held on 24 July 2007 in which the INPEC authorities did not attend. The Ministry of Interior and Justice granted Mr de la Rosa Grimaldos and Mr Arias Ramírez protection.
2. 485. The complainant also alleges the following: (1) that Carlos Cordero Velandia, José Joaquín Vecino Calderón and Jorge James López Castillo were dismissed while covered by trade union immunity. With regard to the latter case, an appeal for protection was lodged but rejected by the Supreme Court of Justice (Labour Appeal Chamber); (2) that disciplinary proceedings were instituted (file No. 0125 of 2007) against the Chairperson and the Secretary of the national executive committee for holding informational meetings; (3) that the INPEC authorities refuse to grant trade union leave or provide a union office and telephone line, benefits enjoyed by the institution’s other trade union; and (4) that the INPEC authorities are working on a bill aimed at changing the status of prison guards and security service staff working for INPEC in order to give their duties police status, thereby precluding union membership.
3. 486. In the communications dated 31 May, 31 July and 25 October 2008 and 28 May 2009 from ASEINPEC and 3 June 2008 from the CGT, the complainants allege that the Government is attempting to deny prison workers the right to freedom of association by reforming the Penitentiary and Prison Code to place INPEC under the authority of the Ministry of Defence, as the security service, and that the INPEC Director intends to give police status to the duties performed by INPEC guards and security officers, thereby precluding trade union membership. Lastly, ASEINPEC alleges that Mr Mario Salamanca Guiller was dismissed in 1995. The complainants also refer to various allegations examined by the Committee under Case No. 2068.

B. The Government’s reply

1. 487. In its communications dated 27 August 2008 and 20 March 2009, the Government sent the following observations.
2. 488. With regard to the allegations made by SIGGINPEC concerning the denial of union leave, the refusal to provide an office, the institution of disciplinary proceedings against members of the trade union and the violation of trade union immunity, the Government states that, according to the Director-General of INPEC, that body respects the right to freedom of association, provides guarantees for its exercise and, according to the INPEC database, SIGGINPEC was granted 659 days of union leave in 2007.
3. 489. Concerning the refusal to provide SIGGINPEC with an office, the Director admitted that ASEINPEC, another union, had been given an office for its current administration, since ASEINPEC had previously been the only trade union, and, owing to limited space, it had not been possible to provide the SIGGINPEC with an office.
4. 490. The Government adds that there are no legal provisions requiring employers to provide trade unions with an office, given that there are no regulations in the Substantive Labour Code that require employers to provide trade unions with an area on their premises. Although Convention No. 87 recognizes the fundamental right of workers and employers to establish occupational organizations, none of its provisions requires employers to provide office space for trade unions to carry out their work. The Government adds that, contrary to what SIGGINPEC has claimed, section 354 of the Substantive Labour Code does not consider the failure to provide office space in the workplace to be a violation of freedom of association.
5. 491. With regard to the disciplinary proceedings, the Government states that, according to the INPEC Director, these proceedings are unconnected to these workers’ status as union officials and simply relate to complaints made against employees who are allegedly guilty of misconduct, as defined in current legislation. INPEC states that disciplinary investigations are currently under way regarding to employees Wilson Hugo Ayala Pérez, Diego Alonso Arias Ramírez and Nelson Enrique Barrera Morales, for allegedly planning a one-day work stoppage and informational meetings, apparently led by members of one of INPEC’s unions, requested by guards and security service staff at the High and Medium Security Penitentiary and High Security Prison of Bogotá.
6. 492. With regard to events surrounding the death of a union official and threats made against other union officials, the Government considers that these should be examined under Case No. 1787. As regards the administrative labour investigation referred to by SIGGINPEC, the Government states that the Office for International Cooperation and Relations has renewed its request for information from the Cundinamarca Regional Directorate, with the aim of obtaining information on the outcome of this investigation.
7. 493. As regards the allegations made by SIGGINPEC, the CGT and ASEINPEC concerning legislation changing the status of prison guards and security officers, the Government points out that this matter has no connection whatsoever with Conventions Nos 87, 98 and 151. Public bodies in Colombia can submit bills with the aim of improving and guaranteeing public service, the main purpose of which is to meet the essential objectives of the State. INPEC’s goal in this instance is to improve security in various prisons. The Government adds that this bill would not in any way affect the right to freedom of association, and that the trade unions have misinterpreted the regulation. National legislation confers extraordinary powers to the executive to issue legislative regulations when requirements and public convenience so dictate, as is the case in this instance. The bill is not intended to undermine the trade union, but to improve the effectiveness and efficiency of service provisions. The bill contains administrative provisions, none of which refer to any restrictions on the right to freedom of association. According to its articles, the bill’s aim is to introduce provisions that establish within the prison system a culture of respect for the rights of inmates and a more dynamic approach to human resources management at INPEC.
8. 494. As for the case of Mr Mario Salamanca Guiller, the trade union should send the relevant observations and provide more information so that the matter can be investigated.

C. The Committee’s conclusions

1. 495. The Committee notes that this case relates to the allegations made by SIGGINPEC concerning the labelling of its members as members of subversive organizations; the dismissal of officials Carlos Cordero Velandia, José Joaquín Vecino Calderón and Jorge James López Castillo while they were covered by trade union immunity; the institution of disciplinary proceedings against the chairperson and the secretary of the national executive committee for holding informational meetings; the denial of trade union leave and refusal to provide a union office and telephone line; and the drafting by the INPEC authorities of a bill aimed at changing the status of staff working as prison guards and in the security service so as to prevent their trade union membership. The Committee notes that, for their part, the CGT and ASEINPEC also refer to the drafting of the legislative bill mentioned above and also allege that Mr Mario Salamanca Guiller was dismissed in 1995.
2. 496. With regard to SIGGINPEC’s allegations that the INPEC authorities named members of the trade union as possible members of a subversive organization (communication No. 7100-01-1893 of 3 October 2006, addressed to the Ministry of Justice), the Committee notes that, according to the trade union, this accusation put the safety of union members at serious risk and led to the killing of Daniel Ruiz Bedoya and threats against officials Arias Ramírez, de la Rosa Grimaldos, Rivera Sogamoso, Oviedo Mogollón and Barrera by paramilitary groups, resulting in the transfer of these officials. The Committee notes that these events were reported to the Attorney-General’s Office and that proceedings were instituted before the Ministry of Social Welfare against INPEC (file No. 059808 of 23 March 2007 with Inspectorate No. 13), without any concrete outcomes to date, with the sole exception of the protection granted by the Ministry of Interior and Justice to Mr de la Rosa Grimaldos and Mr Arias Ramírez.
3. 497. The Committee notes that, for its part, the Government states that it has requested the Ministry of Social Welfare to provide information on the current investigation.
4. 498. In this regard, the Committee notes that these are serious allegations, according to which there were threats to the lives and safety of both union officials and trade unionists and one official, Mr Ruiz Bedoya, was murdered. The Committee notes that, in relation to this latter allegation concerning Mr Bedoya, the matter is being examined under Case No. 1787 [see 348th Report, para. 234]. The Committee notes that the Government did not send any information on the complaint made by the INPEC authorities to the Ministry of Justice on the possible membership of SIGGINPEC members to a subversive movement, the resulting investigations, or the outcome of the complaint made by the trade union to the Attorney-General’s Office concerning this matter. The Committee considers that when the Government carries out investigations, they should be based on duly founded accusations and kept strictly confidential, in order to prevent trade unions, their officials and members from being stigmatized, a situation that could pose a threat to their lives or safety. Under these circumstances, the Committee requests the Government to provide information on ongoing investigations by the Attorney-General’s Office and the Ministry of Social Welfare regarding these allegations, including the substance of the complaint, and that the Government take the necessary measures, without delay to guarantee the safety of all officials and members of the trade union who were threatened, including those under investigation. The Committee will continue to examine these allegations under Case No. 1787.
5. 499. With regard to the allegations concerning the dismissal of officials Carlos Cordero Velandia, José Joaquín Vecino Calderón and Jorge James López Castillo while they were covered by trade union immunity, the Committee notes that the Government did not send its observations in this regard, and requests it to do so without delay.
6. 500. Concerning the allegations on the institution of disciplinary proceedings against the chairperson and the secretary of the national executive committee for holding informational meetings, the Committee notes the Government’s statements that, according to the INPEC Director, a disciplinary investigation is currently being conducted against officials Wilson Hugo Ayala Pérez, Diego Alonso Arias Ramírez and Nelson Enrique Barrera Morales, and that these proceedings were not instituted because of their status as union officials, but rather because they allegedly planned a one-day work stoppage and informational meetings requested by guards and security service staff of the High and Medium Security Penitentiary and High Security Prison of Bogotá. However, taking into account the specific circumstances of the tasks undertaken by prison guards and the divergence between the allegations and the Government’s reply, the Committee requests the Government and the complainant organization to provide additional information on these allegations so that the Committee may examine them in full knowledge of the facts.
7. 501. With regard to the allegations concerning the denial of trade union leave and the refusal to provide a union office and telephone line, the Committee notes the Government’s statements that, according to the Director-General of INPEC, the right to freedom of association is respected and that in 2007 SIGGINPEC was granted 659 days of union leave. As regards the refusal to provide SIGGINPEC with an office and telephone line, the Committee notes that, according to the INPEC Director, ASEINPEC, which had previously been the only trade union at that location, received an office for its current administration and that, owing to limited space, SIGGINPEC had not been provided with an office. The Committee notes that the Government, for its part, states that there are no legal provisions requiring employers to provide trade unions with offices, given that neither the Substantive Labour Code nor Convention No. 87 requires employers to provide trade unions with office space on their premises. The Committee recalls that Convention No. 151, Article 6, stipulates that: (a) such facilities shall be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work; (b) the granting of such facilities shall not impair the efficient operation of the administration or service concerned; and (c) the nature and scope of these facilities shall be determined in accordance with the methods referred to in Article 7 of this Convention, or by other appropriate means. In these circumstances, the Committee requests the Government to take the necessary measures to promote an agreement between INPEC and SIGGINPEC concerning the facilities to be provided to the trade union, in accordance with this Convention that has been ratified by Colombia.
8. 502. Concerning the allegations made by the SIGGINPEC, the CGT and the ASEINPEC with regard to the drafting of legislation to change the status of prison guards and security service staff working for the INPEC in order to give them police status, thereby precluding union membership, the Committee notes that, according to the Government: (1) this matter has no connection whatsoever with the requirements of Conventions Nos 87, 98 and 151; (2) public bodies can submit bills aimed at improving and guaranteeing public service, the main purpose of which is to meet the essential objectives of the State. INPEC’s goal in this instance is to improve security in various prisons; and (3) this bill would not in any way affect the right to freedom of association, and the trade unions have misinterpreted the regulation, given that its provisions are administrative and none of them refer to restrictions on the right to freedom of association.
9. 503. In this regard, the Committee notes that the documentation provided by ASEINPEC includes a communication from INPEC, according to which objective No. 2.2 of the bill is: “to give police status to the duties performed by the current guards and security officers of the INPEC, thereby precluding trade unions”. The Committee notes, on the other hand, that Bill No. 18, a copy of which was also sent, does not appear to refer, either directly or indirectly, to freedom of association. The Committee recalls that, in accordance with Article 2 of Convention No. 87, all workers, without distinction, including prison staff, should enjoy the right to establish or join organizations of their own choosing [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 232]. The Committee requests the Government to ensure that the bill in its final form fully respects this provision. The Committee requests the Government to keep it informed of any developments in this regard.
10. 504. With regard to the allegations made by the CGT and ASEINPEC concerning the dismissal of Mr Salamanca Guiller, the Committee, while noting that these allegations date back to 1995, which could make it difficult to shed light on the matter, notes that the Government requires more information to carry out the necessary investigations. In such circumstances, the Committee requests the trade unions to send more details on the circumstances surrounding the dismissal and the worker’s trade union position.

The Committee's recommendations

1. 505. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the allegations made by SIGGINPEC that the INPEC authorities named union members as possible members of a subversive organization (communication No. 7100-01-1893 of 3 October 2006 addressed to the Ministry of Justice), the Committee requests the Government to provide it with information on the ongoing investigations by the Attorney-General’s Office and the Ministry of Social Welfare, including the substance of the complaint, and that the Government take the necessary measures without delay to guarantee the safety of all the trade union officials and members who were threatened, including those presently under investigation. The Committee will continue to examine these allegations under Case No. 1787.
   • (b) As regards the allegations concerning the dismissal of union officials Carlos Cordero Velandia, José Joaquín Vecino Calderón and Jorge James López Castillo while they were covered by trade union immunity, the Committee requests the Government to send its observations without delay.
   • (c) Concerning the allegations about the institution of disciplinary proceedings against the chairperson and the secretary of the SIGGINPEC national executive committee as a result of the alleged planning of a one-day work stoppage and informational meetings and taking into account the specific circumstances of the tasks undertaken by prison guards and the divergence between the allegations and the Government’s reply, the Committee requests the Government and the complainant organization to provide additional information on these allegations so that the Committee may examine them in full knowledge of the facts.
   • (d) With regard to the allegations concerning the denial of trade union leave and refusal to provide a union office and telephone line, the Committee requests the Government to take the necessary measures to promote an agreement between INPEC and SIGGINPEC concerning the facilities to be provided to the union, in accordance with Convention No. 151, which has been ratified by Colombia.
   • (e) As regards the allegations presented by SIGGINPEC, the CGT and ASEINPEC concerning the drafting of a legislative bill attempting to change the status of the duties of prison guards and security service staff working for INPEC so as to give them police status and prevent union membership, the Committee requests the Government to ensure that the bill eventually passed fully respects Article 2 of Convention No. 87, which has been ratified by Colombia. The Committee requests the Government to keep it informed in this regard.
   • (f) Concerning the allegations made by the CGT and ASEINPEC surrounding the dismissal of Mr Salamanca Guiller, the Committee, noting that the Government requires more information to carry out the necessary investigations, requests the trade unions to send more details on the circumstances surrounding the dismissal and the worker’s union duties.