Rapport définitif - Rapport No. 407, Juin 2024

Cas no 3234 (Colombie) - Date de la plainte: 27-MAI -16 - Clos

Allegations: The complainant organizations allege the non-observance of collective labour agreements by the National Apprenticeship Service and the Office of the Mayor of Bucaramanga

1. 129. The complaint is contained in five communications dated 27 May and 7 June 2016, 24 May and 30 October 2018, and 12 June 2019, submitted by the General Confederation of Labour (CGT), the Union of Workers Engaged in the Construction and Maintenance of Public Works in the Municipalities of Santander (SINTRAOBRAS) and the Union of Workers of the Municipality of Bucaramanga (SINTRAMUNICIPIO).
2. 130. The Government of Colombia sent its observations on the allegations in eight communications dated 13 July 2017, 23 October and 12 December 2018, 30 May 2019, 29 May 2023, as well as 17, 23 and 25 April 2024.
3. 131. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 132. In their communication of 27 May 2016, the complainant organizations allege the non-observance of certain provisions of a collective labour agreement between the National Apprenticeship Service (SENA) and the Union of Official Workers of the SENA (SINTRASENA), specifically concerning housing credits, location allowances and retirement pensions. According to the complainant organizations: (i) the SENA violated sections 35, 36, 37, 38 and 39 of the agreement, relating to the national housing fund, as well as section 82, which contains a most favourable clause in respect of the location allowance for official workers; and (ii) although section 109 of the collective agreement contains provisions on pensions, Legislative Act No. 01 of 22 July 2005 established that rules on pensions contained in collective labour agreements would cease to be in force as of 31 July 2010.
2. 133. In their communications dated 7 June 2016 and 24 May and 30 October 2018, the complainant organizations allege that the Office of the Mayor of Bucaramanga (hereinafter “the Office of the Mayor”) violated the collective labour agreement concluded on 18 December 2015 with SINTRAOBRAS and SINTRAMUNICIPIO, which provides in its first clause that, as of 1 January 2016, the Office of the Mayor “may dismiss official workers in its employ only when there is proven just cause”. They claim that the Mayor: (i) by Decrees Nos 055 and 056 of 2 May 2016, reclassified certain positions occupied by members and officials of the aforementioned trade unions, abolishing 27 official worker positions (those of chauffeur of official vehicles and security guard) and creating 27 public employee positions (those of driver and general services assistant); and (ii) by Decision No. 0270 of 3 May 2016, reassigned to these temporary jobs, without solution of continuity, the 27 affected workers.
3. 134. The complainant organizations state that these administrative acts constitute a clear violation of the right to freedom of association. They claim that the Mayor unilaterally and arbitrarily took an unlawful decision to disregard the scope and content of the contracts that had been entered into with the 27 official workers. According to the complainant organizations, this restructuring of jobs: (i) rendered unionization ineffective; (ii) deprived some SINTRAMUNICIPIO officials of their permanent union leave, as public employees are not entitled to take such leave; and (iii) incurred countless legal fees for the affected unions seeking to defend their officials and members.
4. 135. The complainant organizations state that 13 workers filed applications for the simple nullification of Decrees Nos 055 and 056. They further report that, on 25 July 2016, a criminal complaint was filed in relation to the change in status of the 27 official workers who were reclassified as public employees, leading to criminal proceedings being brought against the Mayor of Bucaramanga and two of his advisers for violation of the rights of assembly and association.
5. 136. The complainant organizations further state that four of the affected workers instituted individual proceedings against the Municipality of Bucaramanga. They report that: (i) Ms Rubiela Jiménez Marín, deputy secretary of the board of directors of SINTRAOBRAS, and Ms Noyolis Jiménez Siderol, secretary of the board of directors of SINTRAOBRAS, instituted special procedures for reinstatement based on their trade union immunity, which were dismissed after lengthy legal proceedings; and (ii) Mr Yeins Alexis Virviescas Vargas and Mr Juan Guillermo Herrera Larrota, who are members of SINTRAOBRAS, instituted proceedings for nullification and for the reinstatement of their rights against the modification of the nature of their contracts.
6. 137. Furthermore, the complainant organizations state that, although the municipal authorities granted to SINTRAMUNICIPIO more than forty years ago part of the plot of land occupied by the Camacho Carreño school, which is where the union’s headquarters are located, those authorities have refused to honour this agreement since the Ministry of National Education selected Bucaramanga for the construction with national resources of a large new school on this land.
7. 138. The complainant organizations also report that, on 28 February 2018, in the framework of a visit to Bucaramanga of the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT), representatives of SINTRAOBRAS and SINTRAMUNICIPIO met with representatives of the municipal authorities, but no solution was reached.

B. The Government’s reply

1. 139. In its communication of 13 July 2017, the Government states, in response to the allegations concerning SINTRASENA, that: (i) there is no evidence of the alleged violation of the sections of the collective agreement relating to the national housing fund; (ii) according to the court decisions handed down in the context of the complaints filed by workers against the SENA, the SENA is not violating section 82 with regard to the location allowance; and (iii) under Legislative Act No. 01 of 22 July 2005, it is not possible to establish, maintain or extend in any way the duration of pension benefits under collective agreements that do not comply with the rules established in that Act.
2. 140. In its communication of 23 October 2018, the Government states that, on 16 October 2018, the present case was discussed in the context of the CETCOIT, leading to an agreement between the SENA and SINTRASENA on the national housing fund and the location allowance. In its communication of 30 May 2019, the Government states that a meeting was held on 28 May 2019 to follow up on the agreement reached in the CETCOIT at which the parties confirmed that the commitments undertaken on the subject of housing had been met and that those relating to the location allowance were under implementation with a view to defining the increase of the allowance. In a communication dated 25 April 2024, the Government indicates that: (i) according to the SINTRASENA, the commitments regarding the location allowance have not yet been fulfilled, and (ii) it will request a new follow-up meeting within CETCOIT.
3. 141. In its communications of 12 December 2018, 29 May 2023, and 17, 23 and 25 April 2024, the Government replies to the allegations concerning SINTRAOBRAS and SINTRAMUNICIPIO, and provides the observations of the Office of the Mayor in this respect. The Office of the Mayor maintains that the allegations against it have no bearing on the right to organize and that the Committee is not competent to examine matters such as general working conditions, social security and dismissals that may result from programmes to promote structural adjustment and flexibility, which do not relate to freedom of association.
4. 142. The Office of the Mayor states that, in a report prepared by the Municipal Auditor’s Office in September 2009, it was found that some public servants with official worker status were in fact performing the duties of public employees, as, according to the applicable legislation and existing jurisprudence, public servants are public employees and official worker status is reserved only for those who are engaged in the construction or maintenance of public works. It states that, in a subsequent technical, legal and financial analysis, the administrative secretariat found that the contractual terms and conditions of the positions of chauffeur of official vehicles and security guard did not in fact correspond with their legal status.
5. 143. The Mayor’s Office explains that, based on the findings of the aforementioned analysis, it issued: (i) Decree No. 055 of 2016, reclassifying the positions of chauffeur of official vehicles and security guard, removing them from the category of official workers and creating the positions of driver and general services assistant; (ii) Decree No. 056 of 2016, defining the duties of the positions that had been created; and (iii) Decision No. 0270 of 2016, which reassigned without solution of continuity all the workers who had previously occupied the positions of chauffeur of official vehicles or security guard to the positions of driver or general services assistant. The Office of the Mayor states that the workers concerned were at no point dismissed from the municipal administration and they continued to be paid. However, since they had not passed a competitive examination, the only option available was the status of public employees engaged on a temporary basis.
6. 144. The Office of the Mayor states that, under articles 313 and 315 of the Constitution, the Mayor is competent to abolish and create positions within the municipal staff. It also refers to section 11 of Act No. 11 of 1986 and section 292 of Decree-Law No. 1333 of 1986, which provide that municipal employees, with the exception of workers engaged in the construction and maintenance of public works, are public employees. Accordingly, the Office of the Mayor considers that classifying workers as public employees or official workers is not within the bargaining remit of the parties and therefore cannot be done by collective agreement.
7. 145. Regarding the legal proceedings seeking the nullification of Decree No. 055 of 2016, the Office of the Mayor reports that: (i) an application filed by Mr Jorge Alberto Vera Villamizar and other workers was rejected in the first instance in a decision handed down on 28 November 2017 by the Eleventh Oral Administrative Court of the Bucaramanga Circuit, and in the second instance by the Administrative Court of Santander through a decision of 26 September 2019; and (ii) the Council of State upheld these decisions in a decision issued on 27 February 2020 in the context of an application for the protection of constitutional rights (tutela).
8. 146. The Office of the Mayor also provides information on the individual proceedings filed by the SINTRAOBRAS officials. With regard to Ms Jiménez Marín, it states that: (i) the individual concerned instituted a special trade union immunity procedure with the Third Labour Court of the Bucaramanga Circuit, which accepted part of her claim in a decision of 8 September 2016; (ii) following appeals filed by the parties, the High Court of Bucaramanga acquitted the Municipality of Bucaramanga in a decision of 31 January 2017; and (iii) Ms Jiménez Marín filed an application for tutela, which was rejected by the Supreme Court of Justice in a decision of 11 May 2017. With regard to Ms Jiménez Siderol, the Office of the Mayor states that: (i) the individual concerned instituted a special trade union immunity procedure before the Fifth Labour Court of the Bucaramanga Circuit, which accepted part of her claim in a decision of 8 November 2016; (ii) following appeals filed by the parties, the High Court of Bucaramanga acquitted the Municipality of Bucaramanga in a decision of 31 January 2017; and (iii) Ms Jiménez Siderol filed an application for tutela, which was rejected by the Supreme Court of Justice in a decision of 4 May 2017.
9. 147. With regard to the individual proceedings filed by the members of SINTRAOBRAS, the Office of the Mayor states that Mr Virviescas Vargas: (i) filed proceedings against the Municipality of Bucaramanga before the Administrative Court of Santander, which rejected his claim in a decision of 23 February 2022; and (ii) filed an appeal that is currently before the Council of State. Furthermore, the Office of the Mayor states that Mr Herrera Larrota: (i) filed proceedings against the Municipality of Bucaramanga before the Second Administrative Court of the Bucaramanga Circuit, which rejected his claim in a decision of 13 December 2018; and (ii) filed an appeal that is currently before the Administrative Court of Santander.
10. 148. The Government, for its part, points out that, in the aforementioned decision of the Eleventh Oral Administrative Court of the Bucaramanga Circuit on the lawfulness of Decree No. 055 of 2016, the Court found that the decree in question did not violate the trade union rights of the complainants, as it served to bring an irregular situation concerning 27 workers into conformity with the law and the reclassification carried out was based on a technical analysis as required by this type of procedure. The Government considers that this reclassification was necessary and that there is no evidence that it was done for purposes of trade union persecution, pointing out that there are currently 14 trade unions coexisting in the Office of the Mayor. The Government also reports that in a judgment dated 24 April 2023, the Seventh Municipal Criminal Trial Court issued a judgment of acquittal in favour of the Mayor of Bucaramanga and his advisors in relation to the criminal action filed against them, a judgment confirmed in second instance on 18 April 2024, a decision which, in turn, was subject to an appeal for reconsideration.
11. 149. With regard to the SINTRAMUNICIPIO headquarters, the Government states that this question arose because an infrastructure project was going to be carried out to completely remodel the main premises of the Camacho Carreño school. It states that, after receiving an administrative complaint against the Municipality of Bucaramanga, the Ministry of Labour conducted an investigation into the alleged violation of labour regulations in relation to the granting of a plot of land for the construction of the SINTRAMUNICIPIO headquarters and, in a decision of 19 October 2019, found no evidence to suggest that the agreements entered into by the parties in 1970 and 1977 were legally binding, and it therefore closed the complaint. The Government states that the parties did not appeal against this decision.

C. The Committee’s conclusions

1. 150. The Committee notes that, in the present case, concerning the alleged violation of the right to bargain collectively in the public sector, the complainant organizations claim that certain sections of the collective agreement between the SENA and SINTRASENA have been violated, and that the Office of the Mayor of Bucaramanga has not complied with: (i) the collective agreement signed with SINTRAOBRAS and SINTRAMUNICIPIO, by changing the legal status of certain positions; and (ii) the agreement reached with SINTRAMUNICIPIO concerning the granting of a plot of land on which the headquarters of that trade union are located. The Committee notes that the Government, for its part: (i) informs of an agreement reached in October 2018 between the SENA and SINTRASENA before the CETCOIT; and (ii) states that the change in legal status of a number of positions by the Office of the Mayor of Bucaramanga was not carried out for anti-union purposes but was necessary to ensure compliance with the law, and provides information on the status of the administrative and legal proceedings initiated in this respect.
2. 151. With regard to SINTRASENA, the Committee notes that, according to the complainant organizations: (i) the SENA has violated sections 35, 36, 37, 38 and 39 (on the national housing fund), as well as section 82 (on the location allowance) of the collective agreement concluded by the parties; and (ii) Legislative Act No. 01 of 22 July 2005 violates section 109 of the collective agreement by establishing that the rules on pensions contained in collective agreements would cease to be in force as of 31 July 2010. The Committee also notes that the Government states that: (i) regarding the national housing fund and the location allowance, the parties reached an agreement before the CETCOIT on 16 October 2018; (ii) at a follow-up meeting on 28 May 2019, the parties confirmed that the commitments undertaken on the subject of housing had been met and that those relating to the location allowance were under implementation; (iii) as stated by SINTRASENA in April 2024, the commitments related to the location allowance have not yet been fulfilled, reason for which the Government will request a new follow-up meeting within the CETCOIT; and (iv) on the issue of pensions, it has not been possible since 31 July 2010 to establish, maintain or extend pension benefits under collective agreements that do not comply with the rules set out in Legislative Act No. 01 of 22 July 2005.
3. 152. The Committee notes with interest the agreement concluded between the SENA and SINTRASENA before the CETCOIT regarding housing and the location allowance, while observing that SINTRASENA considers that the part of the agreement on the location allowance has not yet been fulfilled. Taking due note that the Government will request a new follow-up meeting of the CETCOIT, the Committee trusts that the Government will ensure, with the participation of the CETCOIT, that all elements of the agreement reached between the parties are respected.
4. 153. With regard to the impact of Legislative Act No. 01 of 22 July 2005 on the pensions provided for under collective agreements, the Committee refers to the conclusions and recommendations it adopted in respect of Case No. 2434 and to the follow-up of the legislative aspects of this case by the Committee of Experts on the Application of Conventions and Recommendations in the context of the application of Conventions Nos 98 and 154.
5. 154. With regard to the allegations concerning the collective agreement signed between the Office of the Mayor of Bucaramanga, SINTRAOBRAS and SINTRAMUNICIPIO, the Committee notes that the complainant organizations state that: (i) the collective agreement concluded in December 2015 between the aforementioned trade unions and the Office of the Mayor provides that, as from 1 January 2016, official workers may be dismissed only when there is proven just cause; (ii) the Mayor violated the aforementioned agreement by issuing Decrees Nos 055 and 056 of 2 May 2016, as well as Decision No. 0270 of 3 May 2016, under which 27 official worker positions (chauffeurs and security guards) occupied by members and officials of SINTRAOBRAS and SINTRAMUNICIPIO were abolished, and 27 temporary public employee positions were created, to which the affected workers were reassigned; (iii) this restructuring rendered unionization ineffective, deprived some SINTRAMUNICIPIO officials of their permanent union leave and incurred countless legal fees for the aforementioned unions; (iv) applications were filed for the simple nullification of Decrees Nos 055 and 056; (v) criminal proceedings were brought against the Mayor and two of his advisers for violation of the rights of assembly and association; (vi) the special procedures for reinstatement based on trade union immunity, which were instituted by Ms Rubiela Jiménez Marín and Ms Noyolis Jiménez Siderol, SINTRAOBRAS officials, were dismissed after lengthy legal proceedings; and (vii) Mr Yeins Alexis Virviescas Vargas and Mr Juan Guillermo Herrera Larrota, who are members of SINTRAOBRAS, instituted individual proceedings for nullification and for the reinstatement of their rights.
6. 155. The Committee also notes that the Office of the Mayor, in its observations provided by the Government, maintains that: (i) matters such as general working conditions, social security and dismissals resulting from programmes to promote structural adjustment and flexibility are not related to freedom of association, and therefore the Committee is not competent to examine them; (ii) according to the country’s legislation, public servants are public employees, with the sole exception of those engaged in the construction or maintenance of public works, who are official workers; (iii) Decrees Nos 055 and 056 and Decision No. 0270 were issued on the basis of a report prepared by the Municipal Auditor’s Office in 2009, which found that some official workers were in fact performing the duties of public employees, and on the basis of a technical, legal and financial analysis prepared by the administrative secretariat of the Office of the Mayor; (iv) the affected workers were not dismissed, but as they had not passed any competitive examination, the only option available to them was the status of public employees engaged on a temporary basis; (v) an application for the nullification of Decree No. 055 filed by some affected workers was rejected by the Eleventh Oral Administrative Court of the Bucaramanga Circuit on 28 November 2017, a decision that was upheld by the Administrative Court of Santander on 26 September 2019 and by the Council of State on 27 February 2020; (vi) in a decision handed down on 23 February 2022, the Administrative Court of Santander rejected the individual proceedings filed by Mr Virviescas Vargas, who filed an appeal that is before the Council of State; and (vii) in a decision of 13 December 2018, the Second Administrative Court of the Bucaramanga Circuit rejected the individual proceedings filed by Mr Herrera Larrota, who filed an appeal that is pending before the Administrative Court of Santander.
7. 156. The Committee notes that the Government, for its part: (i) points out that the decision of the Eleventh Oral Administrative Court of the Bucaramanga Circuit, which upheld the lawfulness of Decree No. 055, established that the complainants’ trade union rights had not been violated, as the decree brought an irregular situation into conformity with the law and the reclassification was carried out based on the required technical analysis; (ii) maintains that the reclassification was necessary and does not appear to have been carried out for the purpose of trade union persecution, as there are 14 trade unions in the Office of the Mayor; and (iii) reports that on 24 April 2023, the Seventh Municipal Criminal Trial Court issued a judgment of acquittal in favour of the Mayor of Bucaramanga and his advisors in relation to the criminal action filed against them, a judgment confirmed in second instance on 18 April 2024, a decision which, in turn, was the subject of an appeal for reconsideration.
8. 157. Noting that the Office of the Mayor questions its competence to examine the reclassification of the 27 positions in question, the Committee emphasizes that, while it is not competent to decide whether public servants occupying certain positions should be classified as official workers or public employees, it is nevertheless responsible for ensuring that the principles of freedom of association and collective bargaining are respected in the public sector, and it is therefore from this perspective alone that it is examining the reclassification process in question.
9. 158. The Committee notes the divergent versions provided by the complainant organizations and the Office of the Mayor on the reasons behind the change in the legal status of the 27 official worker positions that were reclassified as public employee positions (under the Colombian legal system, official workers are bound by an employment contract while public employees are statutorily bound; furthermore, permanent public employee positions are awarded through a public competition). The Committee notes that, while the complainant organizations state that this restructuring was carried out in order to circumvent an agreement that had been reached through collective bargaining, the Office of the Mayor maintains that it was only intended to correct an irregular situation. Based on the elements provided by the parties, the Committee notes that: (i) Decree No. 055 of May 2016, under which 27 official worker positions were reclassified as public employee positions, served to implement the recommendations made by the Municipal Auditor’s Office in 2009 and its lawfulness was confirmed by the country’s administrative dispute courts at different levels; (ii) as a consequence of the aforementioned reclassification, 27 unionized workers who were employed by the Mayor’s Office under contracts without limit of time became temporary public employees because they had not passed a competitive examination; (iii) the aforementioned decree was adopted a few months after the negotiation and entry into force of a collective agreement, the first clause of which was intended to increase the employment stability of official workers in the Office of the Mayor; and (iv) there is no indication that the subject of the decree in question was presented for consultations with the trade union organizations.
10. 159. The Committee observes that it is apparent from the above that, while the reclassification carried out under Decree No. 055 had the effect of correcting an irregularity and did not expressly violate the first clause of the collective agreement concluded between SINTRAOBRAS, SINTRAMUNICIPIO and the Office of the Mayor, it did have the effect of undermining the job security of the workers concerned, all of whom are union members and officials, when the objective of that clause, which had been recently negotiated by the parties, was, on the contrary, to strengthen the employment stability of the public servants in the Office of the Mayor. The Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1327] and recalls that it has stressed the importance of consulting with trade unions when elaborating restructuring programmes, since they have a fundamental role to play in ensuring that programmes of this nature have the least possible effect on workers [see Compilation, para. 1557]. The Committee expects that the above-mentioned elements will be duly taken into account in the future.
11. 160. With regard to the allegations concerning the SINTRAMUNICIPIO headquarters, the Committee notes that the complainant organizations state that: (i) more than 40 years ago, the Municipality of Bucaramanga granted SINTRAMUNICIPIO a plot of land, on which its trade union headquarters is located; and (ii) the Municipality refuses to continue to honour this agreement in order to allow the construction of a new school on these premises. The Committee also notes that the Government: (i) confirms that the question of the headquarters arose because an infrastructure project was to be carried out; and (ii) after receiving an administrative complaint, the Ministry of Labour conducted an investigation into the granting of the plot of land and, in a decision of 19 October 2019, found no evidence to suggest that the agreements entered into by the parties in 1970 and 1977 were legally binding.
12. 161. While taking due note of the decision issued by the Ministry of Labour, the Committee recalls that it has underlined the need to strike a balance between two elements: (i) facilities in the undertaking should be such as to enable trade unions to carry out their functions promptly and efficiently and (ii) the granting of such facilities should not impair the efficient operation of the undertaking [see Compilation, para. 1580]. In view of the above, the Committee invites expects the Government to facilitate the dialogue between the Office of the Mayor and SINTRAMUNICIPIO with a view to ensuring that the settlement of the above-mentioned dispute guarantees both the performance of the activities for which the Office of the Mayor is responsible and the proper functioning of the trade union.

The Committee’s recommendations

1. 162. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that the Government will ensure, with the participation of the CETCOIT, that all elements of the agreement reached between the SENA and the SINTRASENA will be respected.
   • (b) The Committee expects that the elements mentioned in the conclusions concerning the obligation to negotiate in good faith and the importance of consulting with trade unions when elaborating restructuring programmes will be duly taken into account in the future.
   • (c) The Committee invites expects the Government to facilitate the dialogue between the Office of the Mayor and SINTRAMUNICIPIO with a view to ensuring that the dispute over the trade union’s headquarters is settled in a way that guarantees both the performance of the activities of the Office of the Mayor and the proper functioning of the trade union.
   • (d) The Committee considers that this case does not call for further examination and is closed.