Definitive Report - Report No 409, March 2025

Case No 3336 (Colombia) - Complaint date: 25-MAY-18 - Closed

Allegations: The complainant organization alleges the anti-union dismissal of 20 trade union leaders in violation of trade union immunity by a state institution in the prison sector

1. 189. The complaint is contained in two communications, dated 25 May 2018 and 25 May 2023, submitted by the Colombian Federation of Correctional and Prison System Workers (FECOSPEC).
2. 190. The Government of Colombia sent its observations on the allegations in two communications, dated 17 September 2019 and 3 January 2025.
3. 191. 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 complainant’s allegations

1. 192. In its communication dated 25 May 2018, the complainant alleges the anti-union dismissal of 20 leaders of its affiliated organizations by the National Penitentiary and Prison Institute (INPEC), referring in particular to: (i) Mr Carlos Villota Enríquez and Ms Carmen Oviedo Zambrano of the Union of INPEC Administrative Officials (SINFUNAD); (ii) Ms Nydia Polanco González, Ms Johanna Ríos Alfaro, Ms Lina Cartagena Mayor, Ms Lina Giraldo Piñerez and Mr Edwin Cabrera Vásquez of the Amalgamated Union of Prison Workers and Prison Services Unit Workers of Cundinamarca (SINTRAPECUN); (iii) Ms Luz Peña Ramírez and Ms Janeth Suarez Osorio of the National Union of Prison and Prison Services Officials of Colombia (SINFUNINPEC); (iv) Mr Héctor Lambuley García, Mr Javier Arturo Burbano and Mr José García Morales of SINFUNAD; (v) Ms Liliana Tovar Trujillo of the Union of Prison System Workers of the Department of Huila (SINTRAPEC HUILA); (vi) Ms Erika Rubianes Ceballos of the Union of Prison System Workers of the Department of Valle (SINTRAPECVALLE); (vii) Mr Pascual Córdoba Jaimes and Mr William Martínez López of the Colombian Prison Workers Union (STPC); (viii) Ms Debora Useche Culma of the Union of National Prison Institute Employees (SINDEINPEC); (ix) Ms Ericka Bautista of the National Union of Colombian Prison System Workers (SINTRAPECCOL); (x) Ms Sandra Barrios Londoño of the Union of Contingent Prison System Workers and Public Officials (SINTRAPROVINPEC) and (xi) Mr Fredy Amezquita Celis of the Union of Workers in High- and Medium-Security Prisons and the Prison Services Unit (SINTRAEPAMS).
2. 193. The complainant indicates that the National Public Service Commission (CNSC), by means of a public job advertisement published on 11 December 2012 and amended on 13 March 2013, convened an open competitive examination to fill 2,100 permanent vacancies on INPEC’s administrative staff. It states that, between April 2015 and August 2016, INPEC dismissed the aforementioned 20 trade union leaders from their temporary posts because they had not passed the competitive examination, even though they enjoyed trade union immunity.
3. 194. According to the complainant, INPEC did not initiate any procedures to lift that immunity, nor did it consider that: (i) the position occupied by Mr Villota Enríquez was never advertised as vacant; (ii) there were irregularities in the competitive examination for the permanent filling of the position occupied by Mr Lambuley García; and (iii) the position occupied by Mr Arturo Burbano was not subject to a competitive examination. The complainant states that 19 of the dismissed trade union leaders lodged complaints with INPEC to request respect for their trade union immunity, but all those complaints were either rejected or ignored.
4. 195. The complainant indicates that nine of the trade union leaders also lodged individual requests for trade union immunity with the Bogotá circuit labour courts, and that: (i) four of those requests, those submitted by Mr Villota Enríquez, Ms Polanco González, Ms Peña Ramírez and Ms Tovar Trujillo, were not processed with due diligence by the judges concerned; and (ii) the other five requests, those lodged by Ms Oviedo Zambrano, Ms Suarez Osorio, Mr Lambuley García, Mr Arturo Burbano and Mr Córdoba Jaimes, were dismissed at first instance.
5. 196. The complainant states that three of the trade union leaders lodged individual appeals with the Bogotá High Court, which ruled in each case that there had been a violation of trade union immunity and issued judgments in favour of Ms Suarez Osorio on 2 August 2016, Mr Lambuley García on 26 January 2016 and Mr Arturo Burbano on 17 May 2016.
6. 197. According to the complainant, there were several vacancies similar to the positions occupied by each of the 20 trade union leaders at the time of their dismissal – sufficient to ensure respect for the guarantees emanating from the right to organize.

B. The Government’s reply

1. 198. In its communication dated 17 September 2019, the Government provides INPEC’s observations. INPEC confirms that the CNSC, through a 2012 agreement amended in 2013 by another agreement, convened an open competitive examination to fill permanent vacancies in 2,100 administrative roles. INPEC states that, consequently, it was legally required to appoint for a probation period the applicants who passed all stages of the examination, to which end it issued administrative decisions terminating the appointments of the persons temporarily occupying the various posts advertised.
2. 199. INPEC states that under article 24 of Decree No. 760 of 2005, judicial authorization is not required to remove from service employees covered by trade union immunity when: (i) such employees fail the probation period; (ii) a competitive examination is held for a position filled temporarily and the employee occupying the position does not participate in it; or (iii) a competitive examination is held for a position occupied temporarily and the employee does not occupy one of the positions which would enable him or her to be appointed in strict order of merit.
3. 200. For its part, the Government similarly indicates that this regulation allowed for the trade union leaders’ dismissal without the need for legal authorization since in such circumstances it is the rights of persons who pass competitive examinations that prevail. The Government states that although some temporary appointments were terminated within INPEC, those terminations did not constitute violations of the exercise of freedom of association since they complied with domestic legislation on temporary appointments.
4. 201. In its communication of 3 January 2025, the Government provides information on the 20 trade union leaders’ employment status in relation to INPEC as of 24 December 2024, describing five of them (Ms Peña Ramírez, Ms Suarez Osorio, Ms Bautista, Ms Barrios Londoño and Mr Cabrera Vásquez) as “active” and the others as “no longer employed”.

C. The Committee’s conclusions

1. 202. The Committee observes that, in the present case, the complainant alleges that INPEC dismissed 20 trade union leaders occupying temporary positions within its organization, in violation of trade union immunity and for anti-union motives. The Committee also takes note that the Government: (i) provides the observations of INPEC, which states that the dismissals were necessary in order to make permanent appointments following a competitive examination and that, in line with national legislation, prior legal authorization was not required, despite the trade union immunity enjoyed by the trade union leaders; (ii) believes that the dismissals do not violate the exercise of the freedom of association; and (iii) reports that as of 24 December 2024, five of the trade union leaders continued to be active workers within INPEC.
2. 203. With regard to the lifting of the 20 dismissed workers’ trade union immunity (under Colombian law, the dismissal of trade union leaders who enjoy trade union immunity requires judicial authorization), the Committee takes note that the complainant alleges specifically that: (i) by means of a public job advertisement published in December 2012 and amended in March 2013, the CNSC convened an open competitive examination to fill 2,100 permanent vacancies on INPEC’s administrative staff; (ii) between April 2015 and August 2016, INPEC dismissed the aforementioned 20 trade union leaders because they had not passed the competitive examination; (iii) INPEC did not initiate any procedures to lift the trade union immunity, nor did it consider anomalies that had arisen in the filling of some of the posts, and (iv) 19 of the trade union leaders lodged complaints with INPEC to request respect for their trade union immunity, but all those complaints were either rejected or ignored; (v) nine of the trade union leaders lodged individual requests for trade union immunity with the Bogotá circuit labour courts – four of those requests were not processed with due diligence by the competent judges and five were dismissed; (vi) three of the trade union leaders lodged appeals with the Bogotá High Court, which ruled in each case that there had been a violation of trade union immunity and issued judgments in favour of Ms Janeth Suarez Osorio on 2 August 2016, Mr Héctor Lambuley García on 26 January 2016 and Mr Javier Arturo Burbano on 17 May 2016.
3. 204. The Committee also notes that INPEC, in its observations provided by the Government, states that under article 24 of Decree No. 760 of 2005, judicial authorization to dismiss employees protected by trade union immunity is not required when a competitive examination is held for a position occupied temporarily and the employee does not occupy one of the positions which would enable him or her to be appointed in strict order of merit. The Committee also notes that the Government: (i) maintains that the dismissals did not violate the exercise of freedom of association since INPEC complied with national legislation on temporary appointments; and (ii) reports that, as of 24 December 2024, 5 of the 20 trade union leaders, including Ms Suarez Osorio, were “active” within INPEC, while the other 15, including Mr Lambuley García and Mr Arturo Burbano, were “no longer employed”.
4. 205. The Committee takes note of the explanations provided by INPEC and the Government concerning the legal basis (Decree No. 760 of 2005) for INPEC’s decision not to request judicial authorization before dismissing the 20 trade union leaders. Similarly, the Committee notes the court decisions issued in that regard. With regard to the four appeals lodged with the Bogotá circuit labour courts that, according to the complainant, were not processed with due diligence, the Committee observes, based on publicly available information, that they were closed between 2017 and 2018 for reasons including tacit withdrawal, contempt and inactivity. With regard to the three trade union leaders who, according to the complainant, allegedly obtained favourable judgments from the Bogotá High Court (two of whom alleged anomalies in the holding of competitive examinations for their posts), the Committee observes that, although Ms Suarez Osorio appears to have been reinstated, Mr Lambuley García and Mr Arturo Burbano were “no longer employed” by INPEC as of 24 December 2024. Recalling that it has frequently examined allegations of anti-union dismissals in the country, the Committee requests the Government to ensure that the court judgments issued in their favour in 2016 have been fully complied with.
5. 206. With regard to the supposed anti-union motive for the dismissals, the Committee takes note that, according to the complainant, there were several vacancies within INPEC similar to the positions occupied by each of the 20 trade union leaders at the time of their dismissal and that those dismissals could, therefore, have been avoided. The Committee takes note that, for its part, INPEC does not reply directly to that statement, limiting itself to indicating that the dismissals resulted from its legal obligation to appoint the candidates who had passed the competitive examination. While noting that it does not have the necessary information to comment on the matter, the Committee observes that according to the information contained in an appendix provided by the Government, 5 of the 20 trade union leaders (Ms Luz Peña Ramírez, Ms Ericka Bautista, Ms Lina Giraldo Piñerez, Mr Pascual Córdoba Jaimes and Mr Edwin Cabrera Vásquez) were reinstated within INPEC through different “trade union agreements” concluded between December 2017 and January 2018. It also observes that, as of 24 December 2024, three of those trade union leaders (Ms Peña Ramírez, Ms Bautista and Mr Cabrera Vásquez) were still “active” within INPEC, in addition to Ms Suarez Osorio (who, according to the complainant, obtained a reinstatement ruling) and Ms Sandra Barrios Londoño. In the light of these trade union agreements, which indicate the existence of negotiation between the parties on the dismissals addressed in the present case and their impact on trade union activity, the Committee considers that this case is closed and does not call for further examination.

The Committee’s recommendations

1. 207. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • Recalling that it has frequently examined allegations of anti-union dismissals in the country, the Committee requests the Government to ensure that the court judgments issued in 2016 in favour of Mr Lambuley García and Mr Arturo Burbano have been fully complied with.
   • The Committee considers that this case is closed and does not call for further examination.