Rapport définitif - Rapport No. 364, Juin 2012

Cas no 2835 (Colombie) - Date de la plainte: 13-OCT. -10 - Clos

Allegations: Refusal to register a trade union and anti-union dismissals

1. 485. The complaint is contained in a communication from the Antioquia branch of the Union of Communications and Allied Professions and Transport (SINTRACOMUNICACIONES), dated 13 October 2010. The National Union of State Employees of Colombia (UTRADEC) indicated that it supported the complaint in a communication dated 1 February 2011.
2. 486. The Government sent its observations in a communication dated 15 September 2011.
3. 487. 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 complainant’s allegations

1. 488. In its communication dated 13 October 2010, the Antioquia branch of SINTRACOMUNICACIONES indicated that this trade union was active within the National Postal Administration (ADPOSTAL) at the time it was liquidated. The trade union’s subcommittee was elected on 13 September 2006 and from that time onwards its members benefited from trade union immunity. The complainant adds that when the Government ordered the liquidation of ADPOSTAL (hereinafter “the institution”), it dismissed, on 26 December 2006, the worker members of the executive board of the trade union and disregarded their trade union immunity. In other words, it failed to secure the permission of a labour judge.
2. 489. The complainant emphasizes that on 18 September 2006, the executive board of the Antioquia branch of the trade union applied to the Office for the Coordination of Labour and Employment of the Ministry of Social Protection for registration in the trade union registry, and registration was granted by virtue of a decision issued on 9 October 2006. In a decree dated 27 December 2006, the Government dismissed the employees of the institution which was then in the process of being liquidated (i.e. it abolished all 567 of the institution’s official posts) and indicated that “from the moment the ruling authorizing the lifting of trade union immunity enters into force or when the term of that immunity expires, in accordance with the law or social by-laws, the posts occupied by public servants who enjoyed trade union immunity will be abolished”.
3. 490. The complainant further adds that when the institution learned of the registration of the executive board of the Antioquia branch of the trade union, it lodged administrative and subsequently judicial appeals seeking to cancel the board’s registration. Eventually, pursuant to a ruling of the High Court in Medellín, the administrative labour authority ordered the registration of the executive board of the Antioquia branch of SINTRACOMUNICACIONES.
4. 491. The complainant states that, in the meantime, two trade union officials received replies to their applications for compliance with their trade union immunity from the institution, in the following terms: “until the registration ruling has been confirmed, ADPOSTAL, which is in the process of being liquidated, will refrain from recognizing said immunity for as long as the appeals lodged against ruling No. 01685 of 9 October 2006 are awaiting a decision”.
5. 492. On 19 December 2007, the complainant organization filed a request for reinstatement before the Labour Court of the Medellín Circuit in order to give effect to the trade union immunity provided for by the legislation. On 10 June 2008, the Court decided to order the institution to reinstate the members of the executive board and pay them the salaries and social benefits owed to them since 28 December 2006. Following an appeal, on 11 August 2008, the High Court in Medellín struck down the ruling of the lower court and found in favour of the institution on the grounds that the deadline for filing the legal request had passed. The complainant states that it appealed to the Labour Chamber of the Supreme Court to seek protection from the High Court ruling, but the Chamber decided to reject the request for protection and the Constitutional Court subsequently decided not to review the appeal for protection.

B. The Government’s reply

1. 493. In a communication dated 15 September 2011, the Government indicates that it decided, in the light of ADPOSTAL’s lack of economic and financial viability, to close that institution and accordingly issued Decree No. 2853 of 25 August 2006, which initiated the liquidation process and appointed Fiduciaria La Previsora SA (FIDUPREVISORA SA) as the liquidator. On 30 December 2008, when the final report was signed, the legal existence of the institution effectively ended.
2. 494. Regarding the proceedings initiated with a view to lifting trade union immunity, the final liquidation report indicates the status of those proceedings at the time liquidation was completed. Specifically, “the liquidation instigated proceedings that enabled the separation from service of employees protected by trade union immunity. This step was taken on 25 October 2006 and the corresponding application covered 177 workers entitled to immunity in 136 proceedings, and took into account the certificates issued by the Ministry of Social Protection for the trade unions and their executive boards, although the Ministry subsequently updated the information and 61 applications by 39 workers with immunity were withdrawn as a result, because a single worker might be entitled to immunity through multiple trade unions. … Once the final liquidation report has been signed, and in the absence of legal authorization for the lifting of trade union immunity, that entitlement ceases to exist since the entity no longer legally exists, in accordance with the principles set forth in the Public Administration Reform Programme 10”.
3. 495. The Government emphasizes that the abolition of posts and the liquidation of the institution were the result of economic and financial considerations. The affiliations of the workers were not taken into consideration, nor was the intention to undermine the right to freedom of association. The main aim was to serve the community better as well as to protect the State’s assets. Trade union immunity is a guarantee of the right to freedom of association that protects trade unions by guarding against arbitrary actions on the part of employers that affect the posts of certain employees and thus also have knock-on effects on the way they discharge their duties and achieve their goals. Once the enterprise or employer entity that guarantees trade union privileges no longer exists, then both the labour relations and the guarantee requiring the employer to respect the workers’ trade union immunity also cease to exist.
4. 496. According to the Government, the Director of the Public Administration Reform Programme, in the framework of a consultation, indicated that “once liquidation has been finalized in accordance with the provisions of article 8, subparagraph 2, of Decree Law No. 254 of 2000, the posts are abolished automatically; therefore, in the event that the entity did not secure permission from the courts to dismiss a worker with immunity, it can abolish the post and pay the corresponding compensation”. The Government reiterates that the liquidated entity acted in good faith and in accordance with the law, and agreed to pay the corresponding compensation. Furthermore, notwithstanding the certainty that the dismissal of the workers with immunity was legal, the liquidated entity cannot be forced, once the liquidation process has been completed, to remain active for the sole purpose of awaiting a labour court ruling that might not be handed down for a number of years. Doing so would not only violate domestic legislation, it would also be incompatible with the constitutional principles of expeditiousness, efficiency and effectiveness that govern the actions of the authorities and government bodies of Colombia, not to mention the high costs that would be involved.
5. 497. The Government therefore supports the administrative and legal measures that were taken, and adds that the Office for the Coordination of Labour, Employment and Social Security decided to rescind the decision to register because the quorum for the election of the executive board had not been met. The Government emphasizes that in the present case administrative decisions and legal decisions have been taken with respect to labour issues by the judicial branch of the State in the exercise of its duties defined under the principle of separation of powers. As such, it is independent of the executive branch, and the Government thus respects and abides by its decisions.

C. The Committee’s conclusions

1. 498. The Committee notes that in this case the complainant alleges that there was a refusal to register the executive board of the Antioquia branch of SINTRACOMUNICACIONES (a matter that had been settled following a series of administrative and legal appeals), and that on 26 December 2006 the members of the executive board of the abovementioned trade union were dismissed at the time ADPOSTAL was liquidated even though they were entitled to trade union immunity and could not therefore be dismissed without prior court authorization.
2. 499. The Committee notes that the Government indicates that (1) it decided, in the light of that institution’s lack of economic and financial viability, to close that institution and initiate the corresponding liquidation procedure without making any attempt to violate trade union rights; (2) once the final liquidation report had been signed, and in the absence of legal authorization for the lifting of trade union immunity, the right (to job security) ceases to exist since the entity no longer legally exists, in accordance with the principles set forth in the Public Administration Reform Programme 10; (3) the Director of the Public Administration Reform Programme, in the framework of a consultation, indicated that “once liquidation has been finalized in accordance with the provisions of article 8, subparagraph 2, of Decree Law No. 254 of 2000, the posts are abolished automatically; therefore, in the event that the entity did not secure permission from the courts to dismiss a worker with immunity, it could abolish the post and pay the corresponding compensation”; (4) the Government reiterates that the liquidated entity acted in good faith and in accordance with the law, and, faced with mandatory and legal permanent closure, agreed to pay the corresponding compensation; (5) under these circumstances, the liquidated entity cannot be forced to remain active for the sole purpose of awaiting a labour court ruling that might not be handed down for a number of years; (6) once the enterprise or employer entity that guarantees trade union privileges no longer exists, then both the labour relations and the guarantee requiring the employer to respect the workers’ trade union immunity also cease to exist; and (7) in this case, labour administrative rulings and court rulings at the highest level have been handed down and the Government declares that it respects and abides by those rulings.
3. 500. In the light of the information provided, the Committee wishes to emphasize that it is not called upon to pronounce upon the question of the breaking of a contract of employment by dismissal except in cases in which the provisions on dismissal imply anti-union discrimination [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 779]. The Committee notes that, with regard to the liquidation and abolition of ADPOSTAL, all of the workers, and not merely the members of the executive board of the trade union in question, were dismissed at the end of the liquidation process. Furthermore, the issue of trade union immunity in national legislation has already been settled by the courts. In these conditions, and in the light of the Government’s explanations in support of the legality of the dismissals and the relevant court rulings, the Committee will not pursue its examination of the allegations.

The Committee’s recommendation

1. 501. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.