Effect given to the recommendations of the committee and the Governing Body - Report No 409, March 2025

Case No 3333 (Colombia) - Complaint date: 29-JUN-18 - Closed

Effect given to the recommendations of the committee and the Governing Body

1. 24. The Committee last examined this case, which concerns allegations of anti-union dismissals of members and leaders of the Sindicato de Profesores de la Fundación Universidad Autónoma de Colombia (SINPROFUAC) entitled to receive an old age pension at its meeting in March 2023 [see 401st report, paras 385–412].
2. 25. On that occasion, the Committee made the following recommendations: [see 401st report, para. 412]:
   • (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.
3. 26. The Government submitted its observations in a communication dated May 2023. With regard to the case of Mr Rafael Ernesto Suárez Orjuela (principal member of the Stability Commission), the Government reports that: (i) there is no court decision ordering the lifting of Mr Suárez Orjuela’s trade union immunity, given that the Superior Court of the District of Bogotá declared the sentence issued by the 38th Labour Court of the Circuit null and void due to failure to comply with the summons of the defendant, meaning that he was improperly notified, and the 38th Labour Court finally ordered the case to be closed. and (ii) The Fundación Universidad Autónoma de Colombia (hereinafter the Foundation) certified that Mr Rafael Ernesto Suárez Orjuela is currently working as a Lecturer. With regard to Mr Orlando Bernal Morales (legal adviser of the union), the Government reports that the Foundation’s request to lift the union representative’s immunity was denied in the first instance, but was subsequently granted by the Superior Court of Bogotá, which gave the Foundation permission to terminate Mr Bernal Morales’ employment contract on the grounds that he was receiving an old-age pension. On 25 March 2022, the Foundation informed Mr Orlando Bernal Morales of the termination of his employment contract; (iii) in relation to Mr Antonio José Villegas Valero, the Government reports that the worker submitted a letter of resignation on 26 January 2021, which was accepted by the Foundation as of 1 February 2021, which is why the Superior Court considered that there was no need to request the lifting of trade union immunity.
4. 27. Regarding recommendation (b), the Government states that ILO Conventions Nos 87, 98 and 154 have constitutional status and that freedom of association is enshrined in the Constitution of Colombia.
5. 28. The Committee takes note of the information provided by the Government. The Committee notes that with regard to the three court cases involving the lifting of trade union immunity for which it had requested information, in particular whether the possible anti-union motives for the termination of the workers’ contracts had been examined:(i) in the first case, the lifting of the trade union immunity was rejected by the courts due to failure to summon the worker concerned; (ii) in a second case, the lifting of the trade union immunity was granted by means of an appeal ruling; and (iii) in the third case, the court did not rule on the merits of the case, noting that the worker had already resigned. The Committee observes from the texts of the aforementioned court decisions, in particular the appeal judgment authorizing the lifting of the trade union immunity of Mr Orlando Bernal Morales, that the possible anti-union motive for the worker’s retirement was not examined by the court despite an allegation of anti-union persecution. Recalling the complainant’s allegations that non-unionized teachers of the Foundation receiving an old-age pension were not dismissed, the Committee highlights once again 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 their trade union membership or activities [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1109].
6. 29. In light of the above, the Committee: (i) requests the Government to take the necessary measures to guarantee that the termination of the employment contracts of persons entitled to receive an old-age pension is not based on possible anti-union motives; and (ii) trusts that the competent authorities will take due account of the conclusions and recommendations of the present case for the situations of union leaders and members referred to in the allegations of the case that may be pending a final resolution.
7. 30. Noting that the information provided by the Government does not refer to the adoption of specific measures to ensure effective respect for freedom of association within the Foundation, the Committee reiterates its recommendation in this regard. Noting that the complainant organization has not provided any new information, the Committee considers that this case is closed and does not call for further examination.