Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Colombia (Ratification: 1969)

The Committee notes the Government's report and the comments submitted by the United Central Workers' Organisation (CUT) in a communication dated 3 March 1989 concerning the application of the Convention.

1. Discrimination for political reasons in the public service

In its previous comments, the Committee noted that posts in the public service are career administration posts or posts subject to "free appointment and dismissal" ("cargo de libre nombramiento y remoción", section 3 of Decree No. 2400 of 1968 and 18 of Decree No. 1950 of 1973) and that the latter posts can be declared abolished at any time "in accordance with the power held by the Government freely to appoint and dismiss its employees" (section 107 of Decree No. 1950 of 1973). The Committee also noted that for ten years, as a result of the declaration of the state of emergency, the Decrees on administrative careers had been suspended and all officials who entered the public service at that period were subject to "free appointment and dismissal".

When the state of emergency was lifted, the Decrees on administrative careers came back into force, but non-permanent posts continue to be subject to "free appointment and dismissal".

The Committee referred to section 3 of Decree No. 2400 and section 18 of Decree No. 1950, concerning the offices of "free appointment and dismissal", which include staff members of the secretariats of certain administrative authorities which perform auxiliary functions, part-time employees and those coming, inter alia, under the staff regulations of public establishments.

The Committee requested the Government to supply information concerning the authorities which exercise the power of "free appointment and dismissal" and concerning the number of employees in posts of this type.

With reference to the power of free appointment and dismissal, the Government indicates that this is exercised, firstly, by the President of the Republic, who appoints ministers, junior ministers, heads of administrative departments, superintendents, managers of national public establishments and governors. These in turn appoint employees who are subject to "free appointment and dismissal" in the bodies for which they are responsible.

With regard to declaring jobs abolished, the Government indicates that this is a manner of dismissing a public employee from his post, as a result of the wish of the administration, and that the latter is not obliged to give reasons for the act of declaring the post abolished, although there must exist just causes for its decision.

The Committee wishes to refer to paragraphs 112 et seq. of its 1988 General Survey on Equality in Employment and Occupation in which it indicates that "in the context of efforts to promote equality of opportunity and treatment in employment, the concept of security of tenure denotes in effect the guarantee that dismissal must not take place on discriminatory grounds, but must be justified by reasons connected with the worker's conduct, his or her ability or fitness to perform his or her functions ..."

The Committee notes that under the above provisions of the national legislation, the power of free appointment and dismissal can be exercised for a fairly large number of employees and can include a large number of posts. This broad discretional power to appoint and dismiss employees opens up the possibility of arbitrary decisions that are contrary to the Convention, without those affected being able to defend themselves effectively.

The Committee notes that the concerns that it has been expressing for several years in this connection coincide with the comments submitted by three national workers' organisations concerning the effect given in practice to the Convention.

In its comments set out in a communication dated 3 March 1989, the CUT alleges the existence in practice of discrimination for political reasons in the public service. Many workers have been dismissed from their posts when there have been political changes in the public authorities. By way of illustration, the CUT alleges that more than 100 workers, who did not belong to the political party of the Governor who was appointed in 1987, were dismissed in Sucre; more than 50 employees in the District Treasury and Health Secretariat were dismissed following changes in the political coalitions in the Council of Bogotá at the end of 1988 and many public employees in various municipalities in the Valle del Cauca were dismissed following the election of mayors in 1988.

The CUT states that the absence of a true administrative career structure and the use of the procedure of declaring jobs abolished (a procedure under which an official appointed to a post that is subject to "free appointment and dismissal" may be dismissed without giving reasons for so doing) facilitates a practice known as "patronage" and that the implementation of an administrative career structure appears to be a prerequisite for the eradication of such discriminatory practices.

In previous comments, the Committee referred to the same issues, which had been the subject of comments (on the application of the Convention) submitted by various workers' organisations; by the Workers' Union of Colombia (UTC) in 1979 and the General Confederation of Labour (CGT) in 1982.

The Committee notes that the allegations of the above organisations coincide in referring to the existence of discrimination on grounds of political affiliation in the public service, where posts are attributed on the basis of quotas reserved for the political leaders, the use of the procedure of declaring jobs abolished for this purpose and the urgent need to introduce an administrative career structure as a means of eradicating these practices.

The Committee requests the Government to examine the provisions respecting the power to freely appoint and dismiss in the light of the Convention so that decisions respecting the appointment and dismissal of employees are subject to objective criteria and guarantees that are explicitly set out in law and ensure the observance of the Convention, which is to protect workers against discrimination on grounds of political opinion.

The Committee also requests the Government to supply information on the distinction that exists between "public employees" and "official workers" and to specify employees who belong to one or the other category and the rules which are applicable to them.

The Committee hopes that the Government will supply detailed information on the questions that have been raised and on the allegations of the CUT concerning the dismissal of workers in the public sector in Bogotá, Sucre, Valle del Cauca (Candelaria, Roldanillo) and Antioquia. The Committee also hopes that the Government will supply information on the measures that have been taken or are envisaged to give effect to the Convention on these matters.

2. Discrimination on grounds of sex

The Committee notes the information contained in the report submitted by the Government of Colombia to the Committee on the Elimination of Discrimination against Women (CEDAW/C/5/Add.32) of 21 January 1986, according to which discrimination in employment on grounds of sex exists, due to the legislation that is in force and to cultural attitudes.

The CUT also refers in its comments to the existence in practice of discrimination on grounds of sex, since many enterprises in practice require a negative pregnancy test before employing a woman and since the wages of women in enterprises are lower in percentage terms. Furthermore, the CUT alleges that there is no protection against the sexual harassment to which women workers are subject in many cases, both for access to employment and for its maintenance, and to obtain promotion and transfers.

The Committee hopes that the Government will supply detailed information regarding the allegations submitted by the United Central Workers' Organisation and on the measures that have been taken or are envisaged to implement the Convention in relation to the matters that have been raised.