Rapport intérimaire - Rapport No. 355, Novembre 2009

Cas no 2644 (Colombie) - Date de la plainte: 10-AVR. -08 - Clos

Allegations: (1)The National Union of Food Workers (SINALTRAINAL) alleges the dismissal of three workers protected by trade union immunity, the suspension of the employment contract of a trade union official, refusal to bargain collectively and failure to apply the collective agreement in force; (2) the General Confederation of Workers alleges collective dismissal on grounds of restructuring, of cleaning staff at the University of Caldas, and the collective dismissal of 31 workers of the Trade Union of Official Workers of Armenia Quindío Municipality

1. 521. The complaints are contained in a communication dated 10 April 2008 presented by the National Union of Food Workers (SINALTRAINAL) and two communications dated 2 May and 23 July 2008 from the General Confederation of Workers (CGT).
2. 522. The Government sent its observations in communications dated 21 October and 3 December 2008.
3. 523. 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. Allegations of the complainant organizations

1. 524. In its communication of 10 April 2008, the National Union of Food Workers (SINALTRAINAL) alleges the anti-union dismissal by the company Lechesan SA of Mr Raúl Hernández Salamanca (member of the Claims Committee), Mr Ernesto Harol Solano Weber, Mr Eder Santa Silva and Mr Gabriel Fajardo Rueda, between August 2005 and January 2006, despite their being protected by trade union immunity. In all cases, except that of Mr Fajardo Rueda, a lower court ordered reinstatement, but that ruling was overturned by a higher court. In the case of Mr Fajardo Rueda, a decision is still pending.
2. 525. SINALTRAINAL also alleges the suspension of the employment contract of Mr Jorge Contreras Ochoa for organizing a protest demonstration, refusal on a number of occasions to allow trade union leave, refusal to negotiate a list of terms and conditions presented on 21 November 2005, despite being invited to do so on more than one occasion by the Ministry of Social Protection and, lastly, failure to apply the collective agreement in force, section 4 of which stipulates that contracts must be without limit of time, despite which more than 80 per cent of the company’s workforce is subcontracted, a state of affairs which prompted the union to initiate judicial proceedings before the Fourth Labour Court of Bucaramanga Circuit on 23 June 2004.
3. 526. In its communication of 2 May 2008, the General Confederation of Workers (CGT) alleges failure to comply with the arbitration award of 31 January 2008, which ended the collective dispute between the union organization and Caldas University.
4. 527. According to the union, the university unilaterally embarked on restructuring, eliminating a number of posts and turning instead to outsourcing arrangements; this, according to the complainant organization, is a covert attempt to destroy the Trade Union of Employees and Workers of Caldas University. As part of this anti-union policy, a voluntary redundancy plan has been put forward. The previous situation resulted in the adoption of Accords 06, 07 and 08 of 9 March 2008, which restructured the university, eliminating permanent staff posts and creating a new structure in its place in which the trade union more or less disappeared because its membership base had been lost.
5. 528. On 30 April 2008, the Special Labour Inspection, Surveillance and Monitoring Unit of the Ministry of Social Protection invited the university’s rector to attend a meeting but he declined to do so.
6. 529. In its communication of 23 July 2008, the CGT alleges the dismissal, on 29 November 2001, of 31 official workers with “without limit of time” contracts who were members of the Trade Union of Official Workers of Armenia Quindío Municipality and had been employed for between three and 18 years. This was claimed to be a flagrant violation of section 46 of the collective agreement, according to which “the Municipality of Armenia guarantees the employment stability of unionized official employees. If an official employee is guilty of misconduct under the terms of the law, the disciplinary regulations in force shall be applied”. The dismissed workers applied to the labour authority, which rejected their claims, a decision that was upheld by the higher level authority.

B. The Government’s reply

1. 530. In its communications of 21 October and 3 December 2008, the Government made the following observations.
   • Allegations concerning the enterprise Lechesan SA
2. 531. As regards the allegations presented by SINALTRAINAL concerning the dismissals of Raúl Hernández Salamanca, Ernesto Harol Solano Weber, Eder Santa Silva and Gabriel Fajardo Rueda, the Government states that the Enterprise Lechesan SA in its observations makes the following points.
   • – Raúl Hernández Salamanca. On 31 August 2005, the employer terminated the employment contract and paid the appropriate compensation for unilateral termination as provided for in section 64 of the Substantive Labour Code; the decision did not require any judicial process. According to Law No. 50 of 1990, which came into force on 1 January 1991, the claims committees corresponding to municipal sections or committees of national or department-level trade unions do not enjoy trade union immunity and therefore, once the means of judicial recourse at the second instance had been exhausted (Labour Chamber of the Higher Court of Bucaramanga Judicial District), the protection sought was not granted, in accordance with the jurisprudence that has been applicable at the national level for more than 25 years. Mr Hernández Salamanca had worked as a peripherals salesperson, a post which disappeared with the restructuring.
   • – Ernesto Harol Solano Weber and Eder Santa Silva. On 2 January 2006, their employment contracts were terminated and they were paid the appropriate compensation for loss of wages and damages arising from termination of contract, as required under section 64 of the Substantive Labour Code; no judicial authorization for this is required. The case is identical to the previous one, and the complainants are not protected by trade union immunity for the reasons stated above, that is, the law does not provide for such protection. Mr Solano Weber had worked as a peripherals salesperson, a post that disappeared with the restructuring, so his situation was similar to that of Mr Hernández Salamanca. Mr Santa Silva’s employment contract was terminated under the terms of section 64 of the Substantive Labour Code, and severance pay provisions were not applicable.
   • – Gabriel Fajardo Rueda. The former worker was not protected by “circumstantial immunity” because the list of demands had not been presented at the appropriate time. Mr Fajardo Rueda was dismissed for errors in production which led to losses for the company. Other workers who were not members of the trade union were dismissed for the same reason (Álvaro Manuel Lizcano, establishment coordinator, and Edwin Muñoz Amariz, establishment supervisor). The ordinary labour procedure is under way in the lower court and the parties to these proceedings will be obliged to submit to the ruling it hands down. A judgement was expected from the lower court on 19 March 2009 at 3 p.m.
3. 532. The Government adds that the Office for International Relations and Cooperation will inquire whether or not there is any current investigation before the Santander Territorial Directorate into possible trade union persecution by the company. It emphasizes, however, that in all these cases except that of Mr Fajardo Rueda, existing judicial remedies have been exhausted.
4. 533. As regards the allegations concerning sanctions against trade union official Jorge Contreras Ochoa for his trade union activities, the Government states that the worker in question was suspended for two days for insulting the head of administration, following due procedure in which he had been assisted by two colleagues. The decision was not challenged through any administrative or judicial proceedings, and the time allowed for such action is deemed to have lapsed.
5. 534. As regards the alleged violation of the right to collective bargaining, the company in its reply indicates that the list of demands submitted came at an inappropriate time because the previous collective agreement had been extended automatically and was therefore still in force. The Government also states that the Santander Territorial Directorate also reported the action taken on the investigation in relation to the company in question, which led to Resolution No. 0156 of 13 February 2007; this left it to the parties concerned to seek recourse before the ordinary labour courts.
6. 535. As regards the allegations of violation of the collective agreement by relying on outside contract workers for 80 per cent of the workforce, the Government states that the union has petitioned the ordinary labour court and a ruling from that body is awaited.
7. 536. Lastly the Government has issued an invitation to the union with a view to having the allegations examined by the Special Committee on the Handling of Cases referred to the ILO (CETCOIT).
   • Allegations concerning Caldas University
8. 537. With regard to the allegations concerning failure to implement an arbitration award that put an end to the collective dispute at the university, the Government states, first, that the University of Caldas is an autonomous public institution under the terms of article 69 of the Political Constitution, and is consequently able to establish its own executive bodies and apply its own statutes in accordance with the law. Act No. 30 of 1992 deals with different aspects of the university’s autonomous status.
9. 538. Section 57(3) of Act No. 30 of 1992 refers to the organization of teaching and administrative staff, and also provides that autonomous institutions have the following characteristics: legal personality; academic, administrative and financial autonomy; and independently owned assets. They are accordingly able to draw up and apply their own budgets in accordance with their mandated functions. In accordance with that autonomy, the University of Caldas promulgated its General Statutes (Accord 064 of 1997), article 18 of which stipulates among other things that the functions of the Higher Council are as follows:
   • – to define university policy and planning;
   • – to determine the institution’s academic, administrative and financial organization;
   • – to ensure that the institution operates in accordance with the law, its own General Statutes and institutional policy;
   • – to determine the establishment staff at the request of the rector, in the light of the structure, budget and laws in force.
10. 539. The Government points out that while the issue of the autonomy and governance of public institutions does not come within the remit of the Committee on Freedom of Association, some clarification of the scope of Law No. 489 of 1998 can shed some light on its observations in this case. The law in question, which governs Colombia’s public administration, is the basic legal framework for the activities of the public administration and provides the main guidelines for modernization. It provides for a system of administrative development defined as “a set of policies, strategies, methodologies, techniques and mechanisms for the management and development of the human, technical, material, physical and financial resources of public administration institutions” and directed towards strengthening administrative capacity and institutional performance, which will be reflected in improved institutional management.
11. 540. Under the terms of section 17 of the law in question, policies for administrative development formulated by the administrative department of the public service must cover the following aspects:
    • – institutional diagnostics;
    • – rationalization of working procedures and methods;
    • – adjustments to the internal organization of institutions relating to the distribution of skills and competencies or to the elimination, merger or creation of administrative units based on simplification of procedures and rationalization of working methods;
    • – programmes for continuous improvement in management, especially with regard to human, financial, material, physical and technological resources, as well as in planning, organization, direction and control;
    • – adaptation of new approaches to improve the quality of goods and services, methodologies to measure work productivity and indicators of efficiency and effectiveness;
    • – identification of obsolete methods and functions that conflict with any other bodies with responsibilities in this area at the national and regional levels, or which are at variance with the legally established objective of the institutions in question;
    • – identification of the administrative support needed to improve attention to users and resolve complaints and claims effectively and promptly.
12. 541. In the light of the above, and in accordance with article 20 of its Administrative Statutes, the University of Caldas concluded an agreement with the Higher School of Public Administration (ESAP) and the Higher Education Development Fund (FODESEP) with a view to developing a technical study of the organic structure and permanent staff. That study, according to information supplied by the university, was delivered in July 2007 and circulated among the entire university community, and was also published on the university’s Internet site in August of that year. The study contains a number of conclusions regarding costs and benefits of maintaining the permanent staff posts, and recommends certain technical, administrative and financial improvements in the university’s support services in the interests of reducing costs and simplifying administration. In this regard, given that the 44 staff cleaning and catering workers employed in five premises are not central to the institution’s activities, the study recommended the elimination of the posts in question, which would lead to significant savings by relieving the institution of the costs of materials, financial inefficiency, loss of time through sickness and holidays, and payment of overtime and other benefits. According to the study, these maintenance services can be provided by private companies, which would generate significant savings in terms of reduced labour costs and benefits, materials, time and staff movement, and would have a direct incidence on the service. That would be in addition to the recurrent costs.
13. 542. According to legislation in force, the Higher Council of the University of Caldas examined the study at a number of meetings, including one on 9 March, and after taking into consideration the views expressed by union representatives and their legal adviser, the Higher Council issued Accord 06 (changing the university’s organizational structure), Accord 07 (amending Accord 024 of 1996, which established the permanent staff list of the university and contained other provisions), and Accord 08 (incorporating some public service staff in the university permanent staff list).
14. 543. The Government highlights the fact that the university took the union’s views into account when taking its decisions. The Caldas Territorial Directorate initiated two inquiries concerning the university, namely: one instigated by another trade union organization on 8 September 2008 for alleged trade union persecution and violation of the collective agreement in force (the conciliation hearing convened by the Territorial Directorate was attended by the university’s representative, but not by the union); and an inquiry following a complaint presented by a third-party union alleging refusal by the University to negotiate a list of demands. During that inquiry, two conciliation hearings were held but the parties did not reach an agreement, and the university was fined, through Resolution No. 427, in accordance with section 433 of the Substantive Labour Code (initiation of talks).

C. The Committee’s conclusions

1. 544. The Committee notes that this case concerns: (1) allegations presented by SINALTRAINAL concerning the dismissal by Lechesan SA of three workers protected by trade union immunity (Raúl Hernández Salamanca, Ernesto Harol Solano Weber and Gabriel Fajardo Rueda), between August 2005 and January 2006, the suspension of the employment contract of a trade union official (Jorge Contreras Ochoa) for organizing a demonstration, refusal to bargain collectively, and failure to implement the collective agreement in force; and (2) allegations presented by the CGT concerning the collective dismissal, on grounds of restructuring, of workers at the University of Caldas (involving the offer of voluntary redundancy) which would mean the disappearance of the union through loss of its membership base, and the dismissal of 31 workers of the Trade Union of Official Workers of the Armenia Quindío Municipality in November 2001, disregarding the collective agreement guaranteeing job security.
2. 545. As regards the allegations concerning the dismissal of Hernández Salamanca, Solano Weber and Fajardo Rueda, by Lechesan SA, the Committee notes that according to the Government, Hernández Salamanca and Solano Weber were dismissed as a result of internal administrative restructuring which resulted in the elimination of their posts, and that the higher level court refused to reinstate them because it considered that they did not have trade union immunity. As regards Fajardo Rueda, he was dismissed together with other non-union workers for mistakes in the production process and legal proceedings are under way. The Committee requests the Government to keep it informed with regard to this proceeding.
3. 546. As regards the allegations made in connection with the suspension of the employment contract of trade union official Jorge Contreras Ochoa for organizing a demonstration, the Committee notes the Government’s statements to the effect that according to the company, Mr Contreras Ochoa was in fact suspended for two days for insulting the company’s head of administration. That suspension was imposed in a disciplinary procedure in which the worker was assisted by two colleagues. No administrative or judicial appeal was lodged against the penalty, and the time allowed for proceedings is now deemed to have lapsed. Consequently, the Committee will not pursue its examination of these allegations.
4. 547. As regards the allegations relating to the company’s refusal to engage in collective bargaining in 2005, despite having been invited to do so by the Ministry of Labour, and the violation of the collective agreement in force, according to which contacts were to be without limit of time, despite which the company outsources for more than 80 per cent of its staffing, the Committee notes the Government’s statements to the effect that according to the company, the refusal to negotiate was due to the fact that the list of demands had not been presented at the appropriate time and the original collective agreement was still in force, having been renewed automatically, and that the administrative inquiry concerning the company left the parties free to seek recourse before the courts. As regards the violation of the collective agreement in force, the Committee notes that according to the Government, the complainant organization initiated legal proceedings which are still in progress. The Committee requests the Government to keep it informed of the outcome of these proceedings.
5. 548. Lastly, the Committee notes the invitation by the Government to the trade union to attempt to resolve the issues raised in CETCOIT. The Committee requests the Government to keep it informed of developments in this regard.
6. 549. As regards the allegations made by the CGT concerning the dismissal of workers at the University of Caldas as part of a restructuring process which in practice entailed the disappearance of the Trade Union of Employees and Workers of Caldas University because its members were affected by that process, the Committee notes the Government’s information according to which: the university in question is a public and autonomous institution with the authority to adopt its own statutes; in accordance with that authority, the university concluded an agreement with the Higher School of Public Administration (ESAP) and the Higher Education Development Fund (FODESEP) to carry out a technical study on the staffing structure and payroll; the study concluded that 44 cleaning and catering posts needed to be eliminated and replaced with a private company in order to reduce costs; these conclusions resulted in Accords 06, 07 and 08, which according to the Government took account of the views of the trade union, and the workers concerned were offered a voluntary redundancy plan. The Committee notes that there are no current proceedings against the university in connection with this issue.
7. 550. In this regard, the Committee recalls that it is only able to give an opinion on allegations concerning programmes and processes of restructuring or economic rationalization, whether or not they entail staff reductions or the transfer of companies or services from the public to the private sector, if they give rise to acts of discrimination or anti-union interference. The Committee emphasizes the importance, in such circumstances, of consulting the trade unions involved, and notes that, according to the Government, that requirement was met. Nevertheless, taking into account the disappearance of a trade union (in this case the Trade Union of Employees and Workers of Caldas University), the Committee requests the Government to indicate whether the trade union rights of workers were respected during the restructuring process.
8. 551. As regards the allegations made by the CGT concerning the collective dismissal of 31 workers of the Trade Union of Official Workers of Armenia Quindío Municipality in November 2001, disregarding the collective agreement that guarantees the workers’ job security, the Committee notes that the Government has not sent its observations and requests it to do so without delay.

The Committee's recommendations

1. 552. In the light of the foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegations made by SINALTRAINAL concerning the dismissal of Fajardo Rueda and the company’s refusal to bargain collectively, the Committee requests the Government to keep it informed of the judicial proceedings still under way and any developments with regard to the Government’s invitation to refer these pending issues to the CETCOIT.
   • (b) As regards the allegations concerning the dismissal of the workers at the University of Caldas as part of a restructuring process, which resulted in the disappearance of the Trade Union of Employees and Workers of Caldas University, the Committee requests the Government to indicate whether the workers’ trade union rights were respected during the process of restructuring.
   • (c) As regards the allegations presented by the CGT concerning the collective dismissal in November 2001 of 31 workers of the Trade Union of Official Workers of Armenia Quindía Municipality, without regard to the collective agreement in force which guarantees employment security for the workers, the Committee notes the Government’s failure to send its observations, and requests it to do so without delay.