Informe definitivo - Informe núm. 409, Marzo 2025

Caso núm. 3282 (Colombia) - Fecha de presentación de la queja:: 23-MAR-17 - Cerrado

Allegations: The complainant organizations allege incompliance with four collective labour agreements, as well as various anti-union acts by a state institution in the prison sector

1. 161. The complaint is contained in a communication dated February 2017 from the Union of State and Public Service Workers of Colombia (UTRADEC-CGT) and the General Confederation of Labour (CGT), a communication dated 7 June 2017 from the CGT, and communications dated 25 October 2017 and 2 March 2019 from the Union of United Prison Workers (SEUP).
2. 162. The Government of Colombia sent its observations on the allegations in communications dated 25 May and 5 July 2018, 31 March and 15 August 2023, and 10 January 2025.
3. 163. 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. 164. In their communications of February and of 7 June 2017, UTRADEC-CGT and the CGT state that the National Penitentiary and Prison Institute (INPEC) failed to comply with three agreements signed with trade union organizations in the public sector. They specifically state the failure to comply with: (i) the seven sections of an agreement of 28 May 2014 signed between the Government and INPEC and 12 trade union organizations of INPEC, including the CGT and SEUP, which contain provisions on guarantees for the exercise of trade union activity, consolidation of prerequisites for access to a special retirement pension for employees carrying out high-risk activities, the establishment of a standing joint working group, and the standardization of activities in the country’s prisons and detention centres; (ii) four of the five sections of an agreement signed on 9 January 2015 between the Government, INPEC and five trade union organizations of INPEC, including UTRADEC-CGT and SEUP, which provided for a percentage increase in the wage supplement, the acquisition of a life insurance policy, the introduction of a credit programme for housing acquisition, the implementation and strengthening of safety programmes to guarantee the right to life and physical integrity, and the establishment of a technical working group with the participation of the trade union organizations; and (iii) most of the provisions of a national agreement signed on 11 May 2015 between the Government and ten trade union organizations in the public sector, including UTRADEC-CGT and the CGT, which provided, inter alia, for an increase in INPEC staff, which never materialized.
2. 165. According to UTRADEC-CGT and the CGT, the above acts of non-compliance provoked a serious crisis throughout the Colombian prison system. They indicate that, as a result, the Single Trade Union Association of Public Employees in the Colombian Prison System (UTP), which is affiliated with UTRADEC-CGT and is the majority union of INPEC with over 4,000 members, initiated a peaceful protest, in which workers from 85 prisons and detention centres participated, and made public statements against the INPEC administration.
3. 166. UTRADEC-CGT and the CGT allege that, in response to these actions, the INPEC Director-General stopped granting union leave to UTP representatives but continued to grant it to representatives of unions with far fewer members. They also claim that the Director-General instructed prison directors to conduct investigations into UTP leaders and members who participated in the above-mentioned protest, which led to criminal and disciplinary complaints, as well as acts of intimidation and threats against several of them. According to UTRADEC-CGT and the CGT, these measures caused fear and anxiety, generated withdrawals from membership, and had a negative impact on the development of the protest and the expansion of the UTP. The CGT’s communication of 7 June 2017 also contains allegations of murders and threats against UTP leaders and members (allegations already examined by the Committee in Cases Nos 2761 and 3074).
4. 167. In its communication of 25 October 2017, SEUP also alleges non-compliance with several provisions of an agreement it signed with INPEC on 3 August 2012, regarding not transferring union leaders without just cause, the granting of union leave, wage and benefits policy, staff regulations, prison policy and staff welfare.
5. 168. SEUP also alleges that INPEC took various measures to weaken it, particularly: (i) frequent and systematic workplace transfers of its leaders and members; (ii) refusal to grant union leave to its representatives, causing its union activity to come to a standstill in several areas of the country; (iii) double deduction of union dues of its members who were previously affiliated with other organizations in order to generate withdrawals from membership; (iv) the launch of disciplinary proceedings against its leaders in violation of due process; and (v) the dismissal, without lifting of trade union immunity, of one of its leaders, Mr Carlos Gerardo Portela, who contested this decision before Labour Court No. 29 of Bogota.
6. 169. SEUP also claims that INPEC encouraged and supported the establishment of “puppet unions”, formed with the help of its management and registered with the Ministry of Labour. It states that, immediately after their establishment, these trade unions already enjoyed more privileges and guarantees than older, already recognized unions. SEUP indicates that it requested the investigation into and annulment of more than 65 legal personalities, but the Government has ignored these requests.
7. 170. In its communication of 2 March 2019, SEUP reports that on 10 July 2018, the Ministry of Labour convened a meeting of the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT) between SEUP and INPEC, where it was decided to schedule another meeting with the competent Colombian authorities. However, in this same communication, SEUP indicates that it withdrew its participation from CETCOIT, expressing doubts about its capacity to mediate a complaint involving public workers.

B. The Government’s reply

1. 171. In its communications of 25 May and 18 July 2018, the Government provides INPEC’s observations, which respond to the alleged non-compliance with the above-mentioned four agreements. With regard to the agreement concluded on 3 August 2012, INPEC claims that it complied fully with the provisions therein. In this respect, it states that it has made efforts to ensure that union leaders effectively enjoy the rights arising out of trade union immunity, particularly the right not to be dismissed, not to have working conditions degraded, and not to be transferred to other workplaces without just cause previously approved by a judge, and that it duly granted union leave to the leaders entitled to it.
2. 172. With regard to the agreement concluded on 28 May 2014, INPEC states that it complied fully with all the sections therein, indicating, inter alia, that it: (i) did not take any anti-union reprisals; (ii) extended the special pension scheme for high-risk activities; (iii) set up a joint technical working group with the ministries and trade union organizations signatories to the agreement, which meets weekly at its headquarters and is responsible for monitoring compliance with the agreement and resolving conflicts; and (iv) standardized activities in its prisons and detention centres.
3. 173. With regard to the agreement signed on 9 January 2015, INPEC claims that: (i) it complied with the section on the percentage increase of the wage supplement for its staff; (ii) although it could not comply with the section on the life insurance policy, as a Bill was required to that end, the Government proposed the establishment of a technical working group to discuss alternative solutions and the unions submitted a standard-setting proposal with a view to incorporating it into a Bill; (iii) the unions’ demands for the introduction of a credit programme for housing acquisition were not in accordance with the State’s fiscal policies; (iv) it complied with the section on the implementation and strengthening of safety programmes by prioritizing risk assessment studies relating to trade union leaders; and (v) more than 24 meetings of the technical working group for sectoral dialogue were held with the participation of the signatory trade union organizations.
4. 174. With regard to the content of the national agreement of 11 May 2015, INPEC indicates that it progressed with a technical study for increasing its staff, approved its results on 25 November 2015, and submitted two proposals to strengthen numbers on 17 June 2016. It explains, however, that adjusting staff numbers falls to the President of the Republic and that the approval of the proposal in question falls to the Ministry of Finance and Public Credit, which reported that it could not increase allocations for funding expenditure for INPEC staff, in accordance with section 92 of Act No. 617 of 2000. INPEC indicates that other means were established to increase its staff by recruiting graduates as auxiliary prison staff, referring in particular to the signing of an inter-administrative agreement on collaboration with the National Defence Ministry.
5. 175. Further, INPEC responds to the alleged anti-union acts committed against SEUP. With regard to the allegations of frequent and systematic transfers, INPEC: (i) reports that, in March 2016, it adopted a manual for staff transfers, the guidelines of which allow for transfers to its different workplaces in order to maintain a balance among staff; (ii) recognizes that it mistakenly transferred SEUP officials who enjoyed union immunity but states that in most cases this was due to omissions in notifications published by SEUP; and (iii) claims that these transfers were revoked or changed when the respective appeals for reinstatement were lodged.
6. 176. With regard to the alleged refusal to grant trade union leave, INPEC denies that leave is refused or cut short without just cause, and states that it authorized a total of 3,251 days to SEUP representatives in 2017. With regard to the alleged double deduction of union dues, INPEC states that: (i) in May 2013, it issued guidelines to advance the processing of authorizations for withholding and for ending the withholding of union deductions; and (ii) its wage group verifies compliance with the requirements of every request and applies the respective updates. With respect to the disciplinary proceedings allegedly started in violation of due process, INPEC states that the proceedings it brings are carried out with due process, in conformity with article 29 of the Constitution and Act No. 734 of 2022.
7. 177. With respect to the alleged dismissal of Mr Portela in violation of trade union immunity, INPEC indicates that: (i) on 12 December 2012, the Office of the Deputy Attorney-General ordered the dismissal of Mr Portal and general bar against his performing public functions; (ii) following the presentation of an appeal, the Office of the Attorney-General confirmed the first instance decision on 31 July 2014; (iii) on 24 October 2014, INPEC implemented this decision and dismissed Mr Portela; (iv) SEUP elected Mr Portela to its executive board on 31 October 2014 and registered this change with the Ministry of Labour on 12 November 2014, hence union immunity was acquired after the dismissal order; and (v) in a decision of 21 May 2018, Labour Court No. 29 of Bogota ordered INPEC’s acquittal relating to all the claims brought by Mr Portela.
8. 178. In its communications of 31 March 2023 and 10 January 2025, the Government reports that, subsequent to the collective agreements mentioned by the complainant organizations, two collective agreements were concluded between INPEC and several trade union organizations, including the UTP, covering, inter alia, provisions on infrastructure and staffing, working hours, the special pension scheme, protection for women, welfare, training, policies and insurance, trade union guarantees, occupational safety and health, and social security. The Government indicates that, according to the periodic monitoring of national agreements within the framework of the Committee/working group for the verification of progress on previous agreements: (i) the first agreement, concluded in 2015 and containing 48 sections, was fully implemented; and (ii) some points of the second agreement, signed in 2019 and containing 82 sections, have yet to be implemented.

C. The Committee’s conclusions

1. 179. The Committee notes that, in the present case, the complainant organizations allege: (i) the violation of several sections of collective labour agreements signed between 2012 and 2015 by the Government and various trade union organizations in the prison sector; and (ii) the commission of several anti-union acts against members and representatives of two trade unions, as well as INPEC’s participation in the establishment of so-called “puppet unions”.
2. 180. With regard to the alleged violation of collective labour agreements, the Committee notes the complainant organizations’ statement that INPEC violated several provisions of three agreements concluded on 3 August 2012, 28 May 2014 and 9 January 2015 between the Government, INPEC and various trade union organizations of INPEC, as well as of a national agreement signed on 11 May 2015 between the Government and several trade union organizations in the public sector, which included commitments on union guarantees, salary conditions, safety policies, pensions, staff welfare and staff increases.
3. 181. The Committee also notes that, in its observations provided by the Government, INPEC states that: (i) the agreement of 3 August 2012 was fully implemented, in particular with respect to union guarantees and union leave; (ii) the agreement of 28 May 2014 was fully implemented through, inter alia, the absence of anti-union reprisals, the extension of the special pension scheme and the establishment of regular technical meetings with the trade union organizations; (iii) three of the five points of the agreement of 9 January 2015 were implemented, but the point on life insurance policy was not implemented because it required a Bill (but the establishment of a technical working group was proposed to discuss alternative solutions and a standard-setting proposal was submitted with a view to incorporating it into a Bill), nor was the point on a credit programme for housing acquisition implemented, as the unions’’ claims in this regard were not in accordance with the State’s fiscal policies; and (iv) in line with the national agreement of 11 May 2015, it submitted proposals for increasing its staff, a change which also depends on the President of the Republic and the approval of the budget by the Ministry of Finance and Public Credit, and established other means to increase staff numbers by recruiting graduates as auxiliary prison staff.
4. 182. The Committee notes the parties’’ conflicting versions regarding the level of compliance with the four agreements that are the subject of the complaint. It notes that, on the one hand, the complainant organizations allege the violation of several provisions while, on the other hand, INPEC only acknowledges that it cannot comply with two sections of the agreement of 9 January 2015. In this regard, the Committee recalls that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation of Decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1336].
5. 183. The Committee also notes the Government’s indication that, following the signing of the agreements that are the subject of the complaint, two collective agreements were concluded in 2015 and 2019 between INPEC and several trade union organizations, including the UTP, whose implementation was periodically monitored by the Committee/working group for the verification of progress on previous agreements. The Committee notes from the information provided by the Government in this respect that: (i) the two collective agreements referred to are broader and more detailed than the four agreements that are the subject of the complaint, even though they address many similar issues covered by the latter; (ii) in particular, the new 2015 agreement contains a section on the life insurance policy which gives effect to the agreement of 9 January 2015 on this point; and (iii) these agreements provide for bipartite mechanisms to monitor their implementation and have not resulted in allegations of non-compliance. In the light of the foregoing, the Committee invites the Government to continue to take the necessary measures to ensure full compliance with the content of the agreements concluded between INPEC and the trade union organizations within it.
6. 184. With regard to the allegation of anti-union acts against the UTP, the Committee notes that the complainant organizations state that, in response to a peaceful protest against non-compliance with three collective agreements that are the subject of the complaint, and in response to public complaints against INPEC’s administration by the UTP, INPEC: (i) stopped granting union leave to UTP representatives; and (ii) ordered its prison directors to conduct investigations into UTP leaders and members who participated in the protest, which led to criminal and disciplinary complaints, as well as acts of intimidation and threats against several of them. While noting that the Government does not respond to these allegations, the Committee also notes their general nature and notes from the information provided by the Government that the above-mentioned 2019 collective agreement, to which the UTP is a signatory, contains two sections providing for protection against anti-union persecution. Recalling that workers should enjoy the right to peaceful demonstration to defend their occupational interests [see Compilation, para. 208] and that allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities [see Compilation, para. 80], the Committee trusts that the Government will continue to take the necessary measures to ensure respect of these criteria within INPEC.
7. 185. With regard to the allegations of anti-union acts against SEUP, the Committee notes that, according to the complainant organizations, with the purpose of undermining SEUP, INPEC: (i) frequently and systematically transferred its leaders and members; (ii) refused to grant union leave to its representatives; (iii) started disciplinary proceedings against its leaders in violation of due process; (iv) intentionally deducted double the union dues of its members who were previously affiliated with other organizations in order to generate withdrawals from membership; and (v) dismissed one of its leaders, Mr Carlos Gerardo Portela, without lifting his trade union immunity.
8. 186. The Committee notes that INPEC, for its part, claims that: (i) it carries out transfers to its different workplaces in line with a manual adopted in 2016 in order to maintain a balance among staff; (ii) it mistakenly transferred officials who enjoyed union immunity, but that these transfers were due to omissions in the notifications published by SEUP, and were ultimately revoked or changed; (iii) it does not refuse requests for union leave without just cause and a total of 3,251 days were authorized for SEUP representatives in 2017; (iv) its wage group processes authorizations for withholding and for ending the withholding of union deductions in line with the guidelines established in 2013, and applies the corresponding changes; (v) it carries out its disciplinary proceedings with due process, in conformity with article 29 of the Constitution and Act No. 734 of 2022; (vi) it dismissed Mr Portela to comply with an order of the Office of the Attorney-General when Mr Portela did not yet enjoy union immunity; and (vii) in a decision of 21 May 2018, Labour Court No. 29 of Bogota rejected an appeal filed by Mr Portela against his dismissal. The Committee takes due note of the Government’s explanations relating to the transfers and the dismissal of Mr Portela, as well as of the court decision. As for the other allegations, the Committee notes, on the one hand, their general nature and, on the other hand, the conflicting versions of the complainant organizations and of INPEC. The Committee invites the Government to encourage dialogue among the parties with a view, in particular, to resolving their differences regarding union leave and union dues.
9. 187. With regard to INPEC’s alleged participation in the establishment of “puppet unions”, the Committee notes the complainants’ statement that: (i) INPEC encouraged and supported the establishment and registration of such unions which, immediately after their establishment, enjoyed more privileges and guarantees than the other unions; (ii) SEUP requested the investigation into and annulment of more than 65 legal personalities, but the Government ignored these requests. While noting that the Government has not provided replies to these allegations, the Committee notes their general nature and therefore will not pursue their examination.

The Committee’s recommendations

1. 188. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • The Committee invites the Government to continue to take the necessary measures to ensure the full implementation of the content of the agreements concluded between the National Penitentiary and Prison Institute (INPEC) and the trade union organizations within it.
   • The Committee invites the Government to encourage dialogue among the parties with a view, in particular, to resolving their differences regarding union leave and union dues.
   • The Committee considers that this case is closed and does not call for further examination.