Rapport définitif - Rapport No. 355, Novembre 2009

Cas no 2657 (Colombie) - Date de la plainte: 22-MAI -08 - Clos

Allegations: Salary deduction for days of strike action and non-payment for days worked in place of days of work stoppage; institution of disciplinary proceedings

1. 553. The complaint is contained in a communication from the Colombian Teachers’ Federation (FECODE) dated 22 May 2008.
2. 554. The Government sent its observations in a communication dated 5 August 2009.
3. 555. 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. 556. In its communication dated 22 May 2008, FECODE states that it called on teachers employed by the State to hold a work stoppage, which lasted from 15 May to 21 June 2001. The purpose of the strike was to express the organization’s rejection of the Government’s neoliberal policies and measures such as labour flexibility and labour reform, increased economic openness, privatization of public education and the reduction in transfers of resources to local authorities (departments, districts and municipalities), among other issues. Another reason for the work stoppage was the fact that the Government had not involved the trade unions – and in fact had prevented their involvement – in the national policy decision-making process, including the amendment of articles 356 and 357 of the Political Constitution through Legislative Act No. 01 of 2001.
2. 557. The complainant organization states that the work stoppage held by the state teachers was not declared illegal at any time by the Ministry of Social Protection, which was the competent authority at the time. However, in retaliation, the Ministry of Education, by means of Circulars Nos 17, 30, 31, 33 and 38 of 21 March, 8, 14 and 23 May and 22 June 2001, respectively, ordered the governors and mayors of the local authorities (departments, districts and municipalities) responsible for education not to pay the teachers who had taken part in the work stoppage for the days on which it had taken place, and to institute disciplinary proceedings against them. Specifically, by means of Circular No. 17 of 21 March 2001, the Ministry of Education issued the following order to governors, mayors, the departmental, district, and municipal secretaries for education and the educational community: “In view of the announcement of a work stoppage planned for tomorrow and possible changes to teachers’ work schedule, the Ministry of Education would like to remind human resources and financial officers that section 1 of Decree No. 1647 of 1967 stipulates that the payment of salaries or any other form of remuneration to public servants at the national, departmental, district and municipal levels shall correspond to the services performed … .”
3. 558. The order to make salary deductions left the teachers no alternative but to return to work and abandon the protest that was in defence of their rights as workers employed by the Colombian State. If they continued the protest they would have endured not only salary deductions, but also possible penal and disciplinary consequences for dereliction of duty, leading to removal from their posts and dismissal from service.
4. 559. The complainant organization adds that, once the work stoppage ended, FECODE recommended that the schools adjust the calendar for the 2001 academic year in order to complete their curricular and extra-curricular activities that had been planned at the beginning of the academic year, citing the legal concepts of the autonomy of schools and flexibility of the academic calendar, laid down in the General Education Act (Act No. 115 of 1994). Based on these legislative provisions, the governing bodies – the highest authority for the schools – gave their consent for the teachers to make up the time not worked owing to the work stoppage on days other than those initially planned on the academic calendar.
5. 560. According to the complainant organization, the local authorities did not oppose the above initiative at any time. The Ministry of Education and the education secretariats of the departments, municipalities and districts were aware that the teachers employed by them were making up the time they had not worked and that the governing bodies of the schools authorized the replacement of the days not worked. The Ministry had no objection to this plan or to the work performed by the teachers in order to complete the planned activities for 2001, nor did it prevent teachers from entering their classrooms to give lessons and generally carry out their duties. This response gave the teachers legal confidence, and they strictly adhered to what the school governing bodies agreed upon: making up the unworked time from the work stoppage and providing 22 additional days of teaching. Consequently, the workplan for the 2001 academic year was fulfilled in all the schools and students moved up to the next grade. Despite this, in the months following the work stoppage, the local authorities deducted the days not worked from the teachers’ pay, disregarding the fact that they had made up this time, which, as stated above, was authorized by the governing bodies, who, under the national legislation, have the authority to make changes to the academic calendar.
6. 561. In view of the above, the teachers, specifically those employed in the Antioquia department, who at the time numbered approximately 3,600, asked the local authority to recognize and pay for the days that were worked in order to make up the unworked time. However, the Antioquia department refused to pay any of the salaries and social benefits requested by the teachers. Proceedings were then instituted against the Antioquia department to have the decision revoked and the salary restored, requesting the competent administrative tribunal to declare invalid the administrative act through which the department refused to recognize and pay the salaries requested by the teachers employed by the local authority.
7. 562. The court of first instance handed down a ruling rejecting the claim. Some teachers filed an action for constitutional protection (tutela) of their fundamental rights to due process, effective access to the administration of justice, and equality, which were violated by the administrative courts of the Medellín Circuit in their rulings.

B. The Government’s reply

1. 563. In its communication of 5 August 2009, the Government sent its observations on FECODE’s allegations that, owing to a work stoppage in protest at economic measures and policies (such as labour flexibility and labour reform, increasing economic openness, the privatization of public education and the reduction in transfers of resources to local authorities, departments, districts and municipalities), among other issues, the Ministry of Education took deductions from the salaries of the participating teachers for the days on which the work stoppage took place. According to the Government, the teachers, who objected to the deductions, decided to request that the administrative disputes court declare the decision ordering the deduction illegal. The court rejected this request, as the administrative judges did not consider that a violation of domestic law had occurred. The teachers also exhausted the remedy of constitutional protection.
2. 564. The Government considers that the social and legal implications of the stoppage planned by the teachers should be taken into account, since it was deemed to be a violation of children’s fundamental right to education. Domestic legislation expressly prohibits “promoting any work stoppages or protests, except for strikes that are declared in accordance with the law”. The trade union incited all of Colombia’s state teachers to stop teaching the children for reasons that were unspecified and vague, as can be observed in the allegations. This stoppage is a violation of the Political Constitution, in particular article 44, which states that education is a fundamental right of children and that “the rights of children take precedence over the rights of others”. This basic principle is in accordance with the various international treaties aimed at protecting the rights of children.
3. 565. The Government adds that the grounds cited by the trade union for carrying out the work stoppage, its exclusion by the Government from discussing the amendments to the Political Constitution (articles 356 and 357 of the Political Constitution, Legislative Act No. 01 of 2001) are political in nature. The Government emphasizes, however, that amendments of the Political Constitution, such as those mentioned by FECODE, must be approved by a qualified majority in Congress in two ordinary and consecutive legislative periods, and may be submitted by any Colombian citizen for constitutional review by the Constitutional Court.
4. 566. The Government emphasizes that the exercise of trade union activity and the right to freedom of association entails a strong social responsibility. Any protest must be undertaken with a sense of responsibility, taking account of the highest interests of the community. The Government states that the right to strike is not absolute, and its exercise is subject to certain minimum requirements, which are stated in countries’ domestic legislation and recognized by international law and the International Labour Organization. The trade union did not comply with the requirements laid down by the law for the exercise of the right to strike; instead it abused this right and called a work stoppage that was prohibited under domestic legislation. Colombian legislation provides for a declaration of illegality in the case of strikes that exhaust the procedure provided for in that legislation, but this does not apply to situations which are, de facto, outside the purview of the law, such as this one, in which some state teachers, acting irresponsibly and without declaring a strike, suspended their work in alleged protest against the Government’s economic policies. This act seriously affected the provision of the public service of education, and infringed the fundamental right of Colombian children to education.
5. 567. The Government adds, however, that, in accordance with article 189, paragraph 21, of the Political Constitution of Colombia, the authority to inspect and supervise teaching in Colombia lies with the President of the Republic, who expressly delegated it to the Ministry of Education. In the exercise of its duties pursuant to this authority, the Ministry of Education reminded the local authorities at the time of the applicable rules concerning salary deductions when a public service is not provided.
6. 568. Although, the trade union refers to retaliation by the Ministry of Education, the Ministry’s actions were in conformity with the law and the Constitution, since it has a legal and constitutional duty to ensure adequate public education, which is linked to the fundamental right of children to education. The trade union incited a work stoppage without observing the law regulating the right to strike. Decree No. 1647 of 1967 provides for salary deductions corresponding to the days of strike action in cases where public employees do not provide their service. It is a universally accepted principle that employers are not obliged to pay their employees or workers if they have stopped working as a result of the exercise of the right to strike. In no way does this violate the principle of freedom of association, as the employment contract is suspended. This is all the more true of this case, in which public servants suddenly interrupted their work. This is not a case of legal exercise of the right to strike; it was a work stoppage in which the legal procedures were not followed. The Ministry of Education was thus constitutionally and legally obliged, by virtue of the competencies and functions assigned to it by law, to remind the heads of local authorities and other government officials responsible for certifying the services provided by their public employees of the rules on salary deductions when a service is not provided, in order to avoid incurring disciplinary or fiscal penalties. The Government emphasizes that, in this case, the teachers suspended an essential public service and that is why salaries were not paid for the days not worked.
7. 569. According to the Government, the trade union violated the Political Constitution and domestic legislation, first by calling a work stoppage for purely political purposes, thereby infringing the fundamental rights of Colombian children, and second by “recommending” adjustments to the academic calendar, as has clearly been stated. The trade union does not have the authority to take these actions. Determining the academic calendar is a duty of the education service, which is a functionary of the State and subject to criteria focusing on the satisfactory provision of education services and the well-being of the children. This action by the complainant trade union lies outside the exercise of the right of freedom of association. It is a clear abuse of this right, in which the trade union went beyond what that right allows by attempting to exert direct influence on the administrative decisions of state bodies.
8. 570. In accordance with domestic legislation, educational institutions do not have the authority to change the students’ academic calendar. The calendar is obligatory and may only be changed by an administrative act issued by the competent local authority, with the approval of the Ministry of Education, in accordance with section 86 of Act No. 115 of 1994 and Decision No. 144 of 2001, in force at the time. It is illegal for a trade union to attempt to determine the policies for public education; this is a function of state bodies. It should be pointed out that the minimum classroom hours established in Colombian legislation must be met by Colombia’s schools in order for the pupils to move up to the next grade.

C. The Committee’s conclusions

1. 571. The Committee observes that, in this case, FECODE alleges that, between 15 May and 21 June 2001, a work stoppage was held to express rejection of measures adopted by the Government without consulting trade unions; as a result of this stoppage, the administrative authority responsible for education issued several circulars before and after the stoppage, requiring the local authorities to make salary deductions for days not worked and to institute disciplinary proceedings. Faced with these measures, the teachers decided to resume work, and the trade union recommended that the school governing bodies (which, according to the complainant organization, are the highest authority in education) adjust the 2001 academic calendar so that the teachers could make up the time not worked owing to the work stoppage. Thus, according to the complainant organization, the workplan was fulfilled in all the schools. The Committee notes that, according to the complainant organization, although the Ministry of Education was aware that the teachers were making up their classroom days, at no time did it object to that action or prevent them from teaching on those days, which gave the teachers confidence that they were in strict compliance with what had been agreed with the governing bodies. The Committee notes further that, according to FECODE, despite having made up the days, the educational authorities made deductions from the teachers’ salaries for the days on which the work stoppage had taken place, and instituted disciplinary proceedings. The teachers then asked the administrative authority to pay them for the days worked in place of those on which the work stoppage had been held, but the Antioquia department refused in all cases to pay the salaries and social benefits in question. This decision was upheld by the courts in ordinary and tutela proceedings.
2. 572. The Committee notes that the Government states that: (1) because of the work stoppage, which was carried out for political reasons, the Ministry of Education deducted pay for the days not worked; (2) the work stoppage was illegal, as it infringed the fundamental right of children to education and, as it did not meet the legal requirements to be considered as a “strike”; (3) regarding the recommendation to adjust the academic calendar in order to make up the days of the stoppage, neither the trade union nor the schools and their governing bodies had the authority to make such changes, as this authority resided with the local authorities, with the approval of the Ministry of Education; for this reason, payment could not be made for the days worked in place of the days of the stoppage; and (4) the courts upheld the administrative authorities’ decisions with respect to the pay deductions.
3. 573. Firstly, the Committee recalls that education is not an essential service in the strict sense of the term (those whose interruption could endanger the lives, safety or health of all or part of the population) in which the right to strike may be prohibited. However, the Committee also recalls that it has considered on numerous occasions that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 572]. The Committee observes, however, that in this case, after the work stoppage, the organization requested adjustments to the academic calendar in order to make up the days affected by the stoppage, and the governing bodies of the schools agreed to this proposal, without the Ministry objecting to this substitution or stating that the school governing bodies did not have the authority to change the academic calendar and that, as a result, it would not take into account the days worked in place of the days of the stoppage. The Committee considers that this lack of response convinced the teachers of the validity of what had been agreed between the school governing bodies and the trade union, which was why they worked for 22 days in place of the days of the stoppage. The Committee observes, however, that the court did not overturn the administrative decision not to make payment for the days worked because it considered that the governing bodies did not have the authority to change the academic calendar.
4. 574. Nonetheless, the Committee considers that the Ministry of Education’s non-payment for the days worked in place of these days of work stoppage, in particular, as a result of an agreement with the governing bodies of the schools, could constitute an excessive sanction that is not conducive to the development of harmonious labour relations. Under these circumstances, the Committee requests the Government to take the measures necessary to promote consultations between the Ministry of Education and the trade union in order to reach a solution with regard to payment for the days worked in place of the days of the work stoppage and to the disciplinary proceedings that were instituted against the teachers.

The Committee's recommendations

1. 575. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • As regards the refusal by the Ministry of Education to pay for the days worked in place of the days of the work stoppage and the institution of disciplinary proceedings, the Committee requests the Government to take the measures necessary to promote consultations between the Ministry of Education and the trade union in order to reach a solution in that respect.