Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 401, Mars 2023

Cas no 3333 (Colombie) - Date de la plainte: 29-JUIN -18 - En suivi

Allegations: The complainant alleges anti-union dismissals of members and leaders of a union in the education sector

1. 385. The complaint is contained in a communication dated 29 May 2018 submitted by the Teachers’ Union of the Autonomous University of Colombia Foundation (SINPROFUAC).
2. 386. The Government of Colombia sent its observations concerning the allegations in communications dated 29 May and 3 October 2019 and 3 February 2023.
3. 387. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 388. In its communication of 29 May 2018, the complainant alleges that on 4 October 2016, the board of directors of the Autonomous University of Colombia Foundation (hereinafter “the Foundation”) ordered the termination of the contracts of 70 members of SINPROFUAC working as teachers while they were entitled to receive an old-age pension, and that on 6 December 2016, the Foundation dismissed them. The complainant underlines that all of the dismissed teachers were members of SINPROFUAC.
2. 389. The complainant also states that following a judicial proceeding in Labour Court 29 of the Bogotá Circuit, the Foundation dismissed the then president of the executive committee of SINPROFUAC, Mr Felipe Millán Buitrago. The complainant further maintains that a request for the dismissal of Ms Rosalba Torres Rodríguez, who serves as vice-president of SINPROFUAC, remains pending before Labour Court 31 of the Bogotá Circuit and that a request has been made for the dismissal of Mr Rafael Suárez Orjuela, Mr Orlando Bernal Morales and Mr Antonio Villegas Valero, three other union leaders.
3. 390. The complainant alleges that, in dismissing the SINPROFUAC members, the Foundation violated freedom of association as well as the collective agreement between the parties, which contains a provision establishing a procedure for any dismissal. According to the complainant, although this provision establishes as an essential prerequisite that the cause for dismissal must be qualified by the stability committee, none of the dismissed teachers were called before the said committee for such a statement in order to give effect to the dismissals.
4. 391. In this regard, the complainant indicates that the stability committee, the purpose of which is to ensure that the employment contract of every university worker remains in place until such time as the worker decides or until it is terminated for just cause duly proven, established in report No. 220 of 18 February 2015 that the Foundation could not terminate the contracts of its teachers solely because they were pensioners.
5. 392. The complainant states that the Foundation, acting in an arbitrary manner, dissolved the stability committee, since Mr Suárez Orjuela, the leading member of the said committee, was among the 70 SINPROFUAC members who were dismissed, despite having trade union immunity. The complainant indicates, however, that this decision was ultimately revoked and that Mr Suárez Orjuela was reinstated.
6. 393. The complainant emphasizes that while the aforementioned members of SINPROFUAC were dismissed, other teachers who are similarly enjoying an old-age pension continue to work at the university as teachers. It further maintains that on 9 June 2016, the Foundation orchestrated a strategy to reduce SINPROFUAC membership by organizing meetings with workers at which it invited them to leave the union.
7. 394. The complainant indicates that it lodged an action for protection of constitutional rights on behalf of 40 of the dismissed teachers before Municipal Criminal Court 5, and that: (i) on 21 February 2017, a judgment was rendered in its favour ordering his immediate reinstatement; and (ii) the Foundation impugned this ruling before Bogotá DC Criminal Court 18, which revoked it on 4 April 2017.

B. The Government’s reply

1. 395. In a communication dated 29 May 2019, the Government submitted the observations of the Foundation, as well as its own response to the complainant’s allegations. In its observations, the Foundation confirms the occurrence of the dismissals and requests for dismissal but asserts that it has always respected the provisions of the law, the collective agreement between the parties and the regulations thereunder, including by going to court to request permission for dismissals when it was necessary to do so, in order to guarantee the rights of workers and its own rights as an employer.
2. 396. The Foundation states that the stability committee is not competent to rule on the decisions taken by its executive board, which has the authority to appoint and dismiss its personnel. It indicates that the contracts were terminated for just legal cause in the light of the provisions of section 62(a)(14) of the Substantive Labour Code, and that receipt of an old-age pension is not a breach of discipline that a worker may or may not have committed.
3. 397. With respect to report No. 220 of 18 February 2015 issued by the stability committee, the Foundation indicates that the said report also recognized that the applicable legislation and jurisprudence granted the employer the authority, without any time constraint, to terminate the employment contract for just cause once the worker had obtained and was enjoying their monthly pension.
4. 398. With regard to Mr Suárez Orjuela, the Foundation maintains that its decision to terminate his employment contract when he enjoyed trade union immunity as a member of the stability committee was due to an error, but that this situation was immediately rectified when it learned of the error. It indicates that on 13 December 2016, a communication was sent to Mr Suárez Orjuela to inform him that he remained attached to the Foundation.
5. 399. Concerning the allegations that it organized meetings in order to invite workers to leave SINPROFUAC and that other teachers also in receipt of old-age pensions were not dismissed, the Foundation maintains that these are subjective assertions by the complainant. It stresses that the dismissal of the teachers was for just and strictly legal cause, and that it did not violate freedom of association or due process.
6. 400. For its part, the Government notes that this case concerns a situation involving the termination of contracts of workers who already have the use and enjoyment of their old-age pension. It indicates that on the basis of section 62(a)(14) of the Substantive Labour Code, section 9(3) of Act No. 797 of 2003 and the applicable jurisprudence, the employer’s decision does not constitute a violation of labour law.
7. 401. Concerning the competence of the stability committee to terminate employment contracts, the Government indicates that in the event of a dispute between a trade union and an enterprise, recourse to the courts to resolve such differences is possible.
8. 402. With regard to the requests for permission to dismiss workers with trade union immunity, the Government maintains that the employer’s resort to the ordinary labour courts to meet this requirement does not constitute an attempt on its part to harm the trade union.
9. 403. In its communication of 3 October 2019, the Government confirms that Labour Court 29 of the Bogotá Circuit authorized the dismissal of Mr Millán Buitrago in a decision dated 31 March 2017, which was upheld by the High Court of the Judicial District of Bogotá on 8 June 2017.
10. 404. The Government also indicates that in a decision dated 25 May 2018, Labour Court 31 of the Bogotá Circuit authorized the dismissal of Ms Torres Rodríguez. Following an appeal, this ruling was confirmed by the High Court of the Judicial District of Bogotá DC on 1 June 2018.
11. 405. In its communication of 3 February 2023, the Government: (i) states that it aims to protect the fundamental rights of workers; (ii) indicates that it has requested possible further information from the Foundation but has not received a reply to date; and (iii) considers it important, however, to provide the Committee with copies of the decision of Municipal Criminal Court 5 of 21 February 2017 and the decision of Bogotá DC Criminal Court 18 of 4 April 2017, issued in relation to the action for protection of constitutional rights lodged by SINPROFUAC.

C. The Committee’s conclusions

1. 406. The Committee notes that, in the present case, the complainant alleges that, in dismissing 70 of its members, as well as its president and vice-president, and in requesting the dismissal of a further three of its leaders, who were working as teachers while they were already entitled to receive an old age pension, a foundation in the education sector violated freedom of association, as well as the collective agreement in force in the Foundation. The Committee further notes that the Foundation and the Government insist that the dismissals were legal, on the basis of the labour legislation and the court decisions issued in this regard.
2. 407. The Committee notes that the complainant specifically states that: (i) on 6 December 2016, the Foundation dismissed 70 teachers, all members of SINPROFUAC; (ii) after obtaining judicial authorization, the Foundation dismissed Mr Felipe Millán Buitrago, the then president of the executive committee of SINPROFUAC; (iii) the Foundation sought judicial authorization to dismiss Ms Rosalba Torres Rodríguez, vice-president of SINPROFUAC, and Messrs Rafael Suárez Orjuela, Orlando Bernal Morales and Antonio Villegas Valero, three other leaders of the union; (iv) the Foundation violated the collective agreement between the parties by dismissing the aforementioned workers without respecting the requirement that the stability committee qualify the cause for dismissal; (v) although other teachers also receive an old-age pension while continuing to teach at the University, only teachers affiliated with SINPROFUAC were dismissed; (vi) in June 2016, the Foundation attempted to reduce membership of SINPROFUAC by organizing meetings with workers at which it invited them to leave the union; and (vii) SINPROFUAC, representing 40 of the dismissed teachers, lodged an action for protection of constitutional rights before Municipal Criminal Court 5 and on 21 February 2017 a judgment was rendered in its favour, but the Foundation impugned this decision before Bogotá DC Criminal Court 18, which revoked it.
3. 408. The Committee further notes that the Foundation, in its observations submitted by the Government, maintains that: (i) the dismissals and requests for the dismissal of the aforementioned workers were fully compliant with the provisions of the law and of the collective agreement with SINPROFUAC; (ii) the stability committee is not competent to rule on the decisions of its board of directors; (iii) receipt of an old-age pension is not a breach of discipline and, under section 62(a)(14) of the Substantive Labour Code, constitutes just legal cause for the dismissals; and (iv) the allegations that it organized meetings with workers to invite them to leave SINPROFUAC and that it did not dismiss non-unionized teachers receiving an old-age pension are subjective assertions.
4. 409. The Committee also notes the Government’s indication that: (i) the dismissals did not violate labour legislation; (ii) Labour Court 29 of the Bogotá Circuit authorized the dismissal of Mr Millán Buitrago on 31 March 2017, a decision that was confirmed by the High Court of the Judicial District of Bogotá on 8 June 2017; and (iii) Labour Court 31 of the Bogotá Circuit authorized the dismissal of Ms Torres Rodríguez on 25 May 2018, and the High Court of the Judicial District of Bogotá DC confirmed this decision on 1 June 2018.
5. 410. As concerns the competence of the stability committee established by the collective agreement with regard to the retirement of workers entitled to a pension, the Committee notes that various courts have ruled on the matter and found that this committee was competent only in the event of dismissals for breach of discipline.
6. 411. With regard to the allegation that the dismissals were made for anti-union reasons since they affected only members of SINPROFUAC, the Committee observes that: (i) the Foundation described as subjective the complainant’s assertions that non-unionized teachers receiving an old-age pension were not dismissed, but did not provide any specific information in this respect; (ii) the alleged anti-union character of the retirement of union leaders and members was raised in the action for protection of constitutional rights lodged by SINPROFUAC and in the procedure for the suspension of the trade union immunity of its president; and (iii) the relevant judicial decisions provided both by the complainant and by the Government focused on establishing that receipt of an old-age pension constitutes a legal cause for dismissal recognized by the Substantive Labour Code and were limited to considering that the dismissals in question did not jeopardize the existence of the trade union. While noting that the Committee does not have sufficient elements to pronounce itself on the reasons for the retirements of the leaders and members of SINPROFUAC which are the subject of this case, it recalls that not only dismissal, but also compulsory retirement, when imposed as a result of legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1109]. Regretting the lack of information on the employment status of the Foundation’s non-unionized teachers entitled to an old-age pension, the Committee requests the Government to: (i) provide information on the outcome of the judicial proceedings to suspend the trade union immunity of the three other SINPROFUAC leaders mentioned in the complaint, indicating whether they have examined whether the reason for their retirement could be related to their trade union activity; and (ii) take the necessary measures to ensure the effective respect of freedom of association in the Foundation.

The Committee’s recommendations

1. 412. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to provide information on the outcome of the judicial proceedings to suspend the trade union immunity of Messrs. Suárez Orjuela, Bernal Morales and Villegas Valero, indicating whether these proceedings have examined whether the reason for their retirement could be related to their trade union activity.
   • (b) The Committee requests the Government to take the necessary measures to ensure the effective respect of freedom of association in the Foundation.