Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 357, Juin 2010

Cas no 2676 (Colombie) - Date de la plainte: 21-OCT. -08 - Clos

Allegations: The Colombian Trade Union Association of Road Transport Workers (ASCOTRACOL) alleges the refusal of the administrative authority to enter the said trade union organization in the trade union register and the subsequent dismissal of the executive committee and of 40 workers, protected by immunity for founders

1. 283. The complaint is contained in communications from the Colombian Trade Union Association of Road Transport Workers (ASCOTRACOL) dated 1 July and 21 October 2008. The trade union organization sent additional information on 19 January 2009.
2. 284. The Government sent its observations in communications dated 8 January and 8 February 2010.
3. 285. Columbia 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 complainant’s allegations

1. 286. In its communications dated 1 July and 21 October 2008 and 19 January 2009, the Colombian Trade Union Association of Road Transport Workers (ASCOTRACOL) explains that it is a trade union organization which was established on 2 April 2006. The establishment of ASCOTRACOL was notified to transport companies, including Coolitoral Ltda, and to the Ministry of Social Welfare, which sent a communication dated 3 April 2006 notifying the legal representative of the company concerned of the establishment of ASCOTRACOL. The admission of new members was also notified by means of communications dated 7, 20, 24 and 27 April 2006.
2. 287. The complainant organization alleges that by means of a decision of 24 April 2006, the Ministry of Social Welfare refused to register the trade union’s founding charter. The relevant appeals lodged were also rejected by Decision No. 523 of 30 May 2006. The complainant organization adds that on 1 June 2006, all the workers who had been involved in the establishment of the union or who had joined the union were dismissed by the company (the executive committee plus 40 workers).
3. 288. The complainant organization filed actions for protection of constitutional rights (tutela) against these decisions but they were rejected. It then filed actions before the labour courts of Barranquilla. It adds that although one of the courts ruled in its favour (see enclosed copy of ruling), ordering the company to reinstate the workers and pay them compensation, this ruling was subsequently overturned on appeal.
4. B. The Government’s reply
5. 289. In its communications dated 8 January and 8 February 2010, the Government points out that article 39 of the political Constitution protects freedom of association. However, this freedom is subject to respect for the law and observance of constitutional mandates and the international conventions duly ratified.
6. 290. The right of association is also established in the Substantive Labour Code (section 38 of Act No. 50 of 1990) which guarantees both employers and workers the right to organize through trade unions or associations. Section 359 of the same Code regulates the conditions governing the creation of trade union organizations, including the minimum number of members, the obligation to draw up a founding charter, the legal framework for adopting the by-laws, the obligation to notify the employer of the establishment of the trade union and the legal personality automatically acquired. It also contains the procedure for registering the union in the trade union registry and the steps to be taken by the administrative authority in response to the union’s request. The Government explains that in its most recent rulings concerning the obligation to draw up a founding charter (Ruling No. C-621 of 25 June 2008), the Constitutional Court ruled as follows:
7. The establishment of a trade union is thus a solemn legal act since it has to be recorded in a private document which is not required to be executed in the presence of any public official, by means of which a number of individuals required by law express their desire to create a permanent legal organization which shall acquire a personality distinct from that of the members in order to achieve certain objectives and as a result of which binding ties shall be created.
8. The Court finds that the mandate in question does not violate the constitutional guarantee of freedom of association since the requirement that the trade union’s founding charter be provided does not represent prior authorization or constitute an obstacle to the creation of a trade union organization, but rather establishes a simple formality designed to ensure the normal functioning of the union.
9. In effect, the signing of the trade union’s founding charter is an administrative act which describes events or circumstances arising at the time that the workers, exercising the positive right of freedom of association, decide independently and freely to establish an organization to defend their interests.
10. This document is of significant importance, given that it serves as the basis for the decisions taken within the organization, mainly for the purposes of entry in the trade union registry by the Ministry of Social Welfare which, as pointed out by this Court, serves the exclusive purpose of publicity since, in accordance with article 39 of the political Constitution and with section 364 of the Substantive Labour Code (SLC), any organization of workers shall enjoy legal personality purely as a result of its establishment with effect from the date of the constituent assembly.
11. Requiring, as is the case in the first paragraph of the regulation in question, that the founding charter contain the names of the initiators or founders, their identity documents, the activity that they carry out and that links them and the purpose of the association also seems reasonable, since these conditions firstly allow the organization to make proper use of the powers recognized by law and secondly make it possible to identify the union for the purposes inter alia of inspection and supervision by the Government in accordance with its powers in relation to this type of association in connection with the preservation of public order (see section 353 of the SLC).
12. Certainly, the provision of the names and the identification of the initiators makes it possible to establish whether those who participated in the establishment of the trade union are active workers within the company and whether the act was carried out with the minimum number of members required by law (see section 359 of the SLC); the obligation to indicate the activity carried out by these individuals for its part makes it possible to determine the type of trade union that brings the workers together, i.e. whether they form part of a trade union representing a company, industry or economic activity, occupation or various occupations (see section 356 of the SLC); finally, the reference to the purpose of the organization makes it possible to confirm that the association established has the purpose of developing the activities characteristic of trade unions, namely to defend the common interests of workers and not to carry out other activities (see section 355 of the SLC).
13. It is therefore found that the requirements established in the first paragraph of section 361 of the SLC do not at any time represent authorization, prior control or intervention by the State in relation to the exercise of the right of association and freedom of association, since, as already outlined, the establishment of these requirements is designed to make the effective exercise of these constitutional rights viable and to ensure that the State is able to fulfil the functions of inspection and supervision conferred on it by law for the purpose of preserving public order (section 353 of the SLC).
14. 291. The Government adds that with regard to the procedures established by law for the entry of trade unions in the trade union registry by the administrative authorities, the Constitutional Court ruled as follows in Ruling No. C-695 of 9 July 2008:
15. In accordance with the provisions of section 372(1) of the Substantive Labour Code, replaced by section 50 of Act No. 50 of 1990 and expressly amended by section 6 of Act No. 584 of 2000, no trade union may act as such, perform the functions established by law and by their respective by-laws or exercise the rights conferred on it, until it has registered its founding charter with the Ministry of Labour and Social Security and only during the validity of that registration.
16. Moreover, in accordance with article 39 of the political Constitution, section 365 of the abovementioned Code, replaced by section 45 of Act No. 50 of 1990, provides that every union of workers shall be entered in the register kept for that purpose by the Ministry of Social Welfare.
17. In accordance with the provisions of article 39 of the political Constitution, “workers and employers shall have the right to establish trade unions or associations without intervention from the State. Such organizations and associations shall be granted legal recognition merely as a result of the registration of their founding charter”.
18. In the same vein, Article 2 of ILO Convention No. 87 provides that “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation”.
19. In accordance with these provisions, it is clear that legally trade unions exist and are valid as a result of their establishment, without the intervention or prior authorization of the State, by means of a declaration of collective will, issued by means of the exercise of the autonomy of private will, a declaration which is constitutionally required to be made in a document which shall be entered in the relevant register.
20. This implies that the said declaration of collective will shall have legal effect among the parties to that declaration or among the founders of the trade union from the time that it is issued, as is generally the case in the legal field with declarations of will, in particular with regard to contracts.
21. On the other hand, in relation to third parties, the declaration of a desire to establish the trade union shall have legal effect and be enforceable against them only from the communication of such declaration to them individually or generally, in the latter case by means of publication.
22. This is the effect of the principle of publicity, which has predominantly rational grounds in so far as, generally speaking, legal acts have effect only from the point at which their addressees become aware or are presumed to have become aware of those acts, as is the case, for example, with administrative acts and laws, with legal proceedings according to the various codes of procedure and with the acts of private individuals with regard to contracts.
23. The legal importance of the principle of publicity explains its guarantee at the constitutional level as one of the components of due process (see article 29 of the Constitution) and as one of the principles governing the actions of the public administration (see article 209 of the Constitution).
24. From this perspective, the provision that reads “the trade union shall be recognized legally solely as a result of the registration of its founding charter”, contained in article 39 of the Constitution, should be interpreted in accordance with the principle of publicity in the sense that such recognition is not based on the granting of legal personality to the union or on a declaration of its valid existence by the State, but rather on enforceability and the production of the legal effects of its establishment vis-à-vis the State, which, including all its entities, is a third party in relation to the individuals party to the declaration of a collective will to establish the trade union concerned, or rather in relation to the founders of the union concerned, and in relation to all other third parties, including firstly the employer, with effect from such registration.
25. Based on the above, taking into account that section 372(1) of the Substantive Labour Code, replaced by section 50 of Act No. 50 of 1990 and expressly amended by section 6 of Act No. 584 of 2000, may be interpreted to mean that the registration of the trade union’s founding charter with the Ministry of Social Welfare is a requirement for the union’s existence or validity, which would be contrary to the provisions of article 39 of the political Constitution and to those in Article 2 of ILO Convention No. 87, which forms part of the constitutional provisions, this Court hereby declares the provision concerned to be enforceable subject to conditions, on the counts set forth in this judgment, on the understanding that registration is solely for the purpose of publicity and does not authorize the Ministry concerned to exercise prior control over the content of the founding charter.
26. 292. In short, the Court regarded as applicable the sections of the Substantive Labour Code relating to the registration of the trade union’s founding charter with the Ministry of Social Welfare, but pointed out that the exclusive purpose of such registration was to make the information known and that the Ministry of Social Welfare was not authorized to exercise prior control over the content of that charter. The Government points out that, for that reason, the Ministry currently files only the decision to create a trade union organization, together with its by-laws and the appointment of its executive committee. With regard to the particular case of ASCOTRACOL, the Government points out that the Ministry of Social Welfare notified the employers comprising the Cooperative of Atlantic Coast Transport Companies (Coolitoral Ltda, Coochofal and Transporte Atlántico López e Hijos SCA) of the union’s establishment on 4 April 2006.
27. 293. By means of Decision No. 000325 of 24 April 2006, the Ministry rejected the request for registration of the founding charter, by-laws and executive committee on the basis that they were contrary to the national Constitution, in accordance with section 4(4)(a) of Act No. 50 of 1990. Decision No. 00423 of 15 May 2006 ruled on an application for reconsideration filed by the trade union organization and upheld the decision which was the subject of the appeal. Decision No. 000523 of 30 May 2006 ruled on the appeal lodged by the trade union organization and upheld the decision which was the subject of the appeal, thereby exhausting the administrative channels.
28. 294. The Government indicates that the by-laws of ASCOTRACOL omitted the rules contained in section 42(7) and (8) of Act No. 50 of 1990 concerning the amount and frequency of ordinary membership fees and the method of payment and the procedure for ordering and paying extraordinary membership fees. Furthermore, it was considered that the wording of section 5 was not clear in referring to “cooperatives of Colombia” and that there was also a lack of clarity with regard to the hierarchy of the executive bodies. Section 14 concerning the members of the executive committee is also contrary to the legislation. The Government refers to various other provisions of the by-laws which are contrary to Colombian legislation.
29. 295. The Government attaches a communication from the Cooperative of Atlantic Coast Transport Companies (COOLITORAL) referring to the various administrative bodies which examined the application for registration submitted by ASCOTRACOL and rejected it for being contrary to the Constitution and the Substantive Labour Code. The enterprise also attaches a copy of the court rulings handed down with respect to the reinstatement proceedings instituted by the dismissed workers in which reinstatement was refused on the grounds that the workers did not enjoy immunity as founders of a union because the application for registration of the union was rejected.

C. The Committee’s conclusions

1. 296. The Committee notes that in the present case ASCOTRACOL alleges: (1) the rejection by the Ministry of Social Welfare of the request for registration in the trade union register of the trade union organization established on 2 April 2006 (a decision which became final on 30 May 2006); and (2) that as soon as the administrative authority decided to reject the request for registration of the trade union organization, Coolitoral Ltda dismissed, on 1 June 2006, the executive committee and 40 workers who had been involved in the establishment of the trade union organization or had subsequently joined the organization.
2. 297. With regard to the refusal to register the trade union in the trade union register, the Committee notes that according to ASCOTRACOL, the Ministry of Social Welfare refused, by means of a decision of 24 April 2006, to register the union’s founding charter and that the administrative appeals lodged against the decision and the action filed for protection of constitutional rights (tutela) were also rejected.
3. 298. In this regard, the Committee notes that the Government indicates that the request for the registration of the founding charter, by-laws and executive committee was rejected under Decision No. 000325, of 24 April 2006, on the basis that they were contrary to the national Constitution, in accordance with section 4(4)(a) of Act No. 50 of 1990. This decision was confirmed by Decision Nos 00423 of 15 May 2006 and 000523 of 30 May 2006, which ruled respectively on the application for reconsideration and the appeal lodged by the trade union organization, thereby exhausting the administrative channels. The Committee notes that the Government refers in detail to the various omissions and inconsistencies on the part of the trade union organization which resulted in registration being denied. These included the omission of the rules relating to the amount and frequency of the ordinary membership fees and the method of payment and the procedure for ordering and paying extraordinary membership fees; it was considered that the wording of section 5 was not clear in referring to “the co-operatives of Colombia”; there was also a lack of clarity as regards the hierarchy of the executive bodies, etc. The Committee notes, however, that the Government indicates that currently, and in accordance with the recent rulings of the Constitutional Court (Ruling Nos C-621 of 25 June 2008 and C-695 of 9 July 2008 in which the Court considered that although the sections of the Substantive Labour Code concerning the registration of the union’s founding charter with the Ministry of Social Welfare are applicable (enforceable), the purpose of these sections is to ensure that the founding charter is made public and the Ministry of Social Welfare is not authorized to exercise prior control over the content of the charter), the Government merely registers the official documents relating to the establishment of any trade union organization, together with its by-laws and the records of the election of its executive committee. Although the registration procedure very often consists in a mere formality, there are a number of countries in which the law confers on the relevant authorities more or less discretionary powers in deciding whether or not an organization meets all the conditions required for registration, thus creating a situation which is similar to that in which previous authorization is required. Similar situations can arise where a complicated and lengthy registration procedure exists, or where the competent administrative authorities may exercise their powers with great latitude; these factors are such as to create a serious obstacle for the establishment of a trade union and lead to a denial of the right to organize without previous authorization [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 296]. Under these particular circumstances, the Committee points out that the trade union may, if it so wishes, once the omissions and inconsistencies as referred to above have been rectified, submit a new request for the registration of its founding charter, by-laws and executive committee and requests the Government in that case to register the trade union organization immediately, in conformity with the recent rulings of the Constitutional Court.
4. 299. As regards the allegation that as soon as the administrative authority rejected the request for registration of the trade union (on 30 May 2006), the company dismissed, on 1 June 2006, the members of the executive committee and 40 workers who had been involved in the union’s establishment or had joined the union, the Committee notes the information from the Government and the enterprise to the effect that the actions for protection of constitutional rights (tutela) and other legal actions filed with the courts were rejected. The Committee observes that the rulings, copies of which are attached, show that the dismissals indeed occurred on the day following the administrative authority’s decision refusing registration of the trade union. However, the Committee observes that it was on account of the rejection of the request for registration that the judicial authority considered the dismissed workers not to have enjoyed trade union immunity. In this regard, noting with concern the large number of union leaders and workers dismissed shortly after they attempted to establish the union and on the day after the administrative rulings rejecting the registration of the union became final, the Committee recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 771]. The Committee therefore requests the Government to take the necessary steps to have the dismissed workers reinstated if indeed these workers were dismissed for having established a trade union and, should reinstatement be impossible for objective and compelling reasons, the Committee requests the Government to ensure that the workers receive appropriate compensation, such as to constitute a penalty that acts as a sufficiently dissuasive and effective deterrent against anti-union dismissals. The Committee requests the Government to keep it informed in this regard.

The Committee's recommendations

1. 300. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the refusal of the Ministry of Social Welfare to grant the request for entry in the trade union registry of the trade union organization established on 2 April 2006, the Committee points out that the trade union organization may, if it so wishes, once the omissions and inconsistencies highlighted in the decisions concerned have been rectified, submit a new request for the entry of its founding charter, by-laws and executive committee in the register and requests the Government in that case to register the trade union organization immediately.
   • (b) With regard to the allegation that as soon as the administrative authority rejected the request for registration of the trade union, the company dismissed the members of the executive committee and 40 workers who had been involved in the union’s establishment or had joined the union, a fact that was verified by the judicial authority in its rulings, the Committee requests the Government to take the necessary steps to have the dismissed workers reinstated if indeed they were dismissed for having established a trade union and, should reinstatement be impossible for objective and compelling reasons, the Committee requests the Government to ensure that the workers receive appropriate compensation, such as to constitute a penalty that acts as a sufficiently dissuasive and effective deterrent against anti-union dismissals. The Committee requests the Government to keep it informed in this regard.