Interim Report - Report No 99, 1967

Case No 490 (Colombia) - Complaint date: 09-NOV-66 - Closed

1. 28. The complaints are contained in a communication of 9 November 1966 from the Federation of Workers of Antioquia (FEDETA) and a communication of 3 March 1967 from the Trade Union Movement of Cundinamarca (ASICUN). Both communications were conveyed to the Government by letters dated 13 January 1967 and 17 March 1967 respectively.
2. 29. By a communication dated 10 April 1967 the Government sent its observations concerning the complaint submitted by FEDETA.
3. 30. Colombia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to Various Legislative Measures
  31. 31 FEDETA supplied the text of five resolutions approved by the General Assembly of Management Committees of its member trade unions, held on 3 November 1966. Resolution No. 1 includes a statement of solidarity on the part of FEDETA with the workers' union of the firm of Colpet in a dispute regarding wage adjustments and the execution of an arbitration award. Resolutions Nos. 2 and 3 contain protests against the Government's supposed intention to unfreeze rents which had been blocked in 1956 and against the supposed intention of an organisation [of employers] referred to as A.N.D.I to freeze wages, respectively; both these projects are alleged to be supported by " trade union leaders placed by the employers in the central organisations, U.T.C and C.T.C.". Resolution No. 4 refers to the promulgation of four decrees: No. 2686, alleged by the complainants to abolish freedom of travel, freedom of written or verbal expression and the citizens' freedom to organise; Decree No. 2687, alleged to withdraw official recognition of and abolish all the students' organisations; Decree No. 2688, alleged to " suppress completely freedom of assembly and demonstration for the working movement and all opposition movements "; and Decree No. 939, alleged to violate the right to strike. Resolution No. 5 affirms the Federation's solidarity with various trade unions which it states had submitted claims to their employers and had met with an intransigent attitude.
  32. 32 In its reply of 10 April 1967 the Government states that resolutions Nos. 1 and 5 adopted by the complainant organisation refer to labour disputes which had been settled by the end of 1966, while resolutions Nos. 2 and 3 consist of protests against measures which the Government had not taken " and never even contemplated taking in the form alleged by the complainants ".
  33. 33 As regards resolution No. 4, the Government points out among other things that the very possibility of disseminating resolutions of this kind shows that a climate of freedom reigns in the country as a result of " a system of law which protects, without reservations or restrictions, the civil rights and social safeguards of all citizens and their lawfully constituted organisations ". Still according to the Government, Decrees Nos. 2686, 2687 and 2688 do not imply repressive measures or any kind of obstacle to the free exercise of their rights by individuals and associations but merely define certain forms of anti-social behaviour and institute appropriate penalties.
  34. 34 As regards Decree No. 939, the Government states that this was accepted, upon its promulgation, by the Union of Workers of Colombia (U.T.C.) and the Federation of Workers of Colombia (C.T.C.), " the central workers' organisations which represent the democratic trade union movement of Colombia ". It goes on to state that the provisions of that statute are nothing more than the concretisation of the Constitutional precept that guarantees the right to strike and provides that its exercise be regulated by law. The introduction of such regulation-the Government goes on to say-has been purely beneficial to society, resulting not in a withdrawal of the right to strike but in the definition of the legal framework of the interruption of work whose prolongation, if unchecked, can only damage the workers' interests; it is in this sense that the trade union organisations which are genuinely concerned with the well-being of their members and the effective improvement of their circumstances understand the decree.
  35. 35 The Government attaches to its communication the text of the four decrees in question as published in the Official Gazette. Legislative Decree No. 939 of 20 April 1966 provides, under section 1, that if by the 30th day of the strike the parties have not reached a settlement the workers may, within the following ten days, request the Ministry of Labour to submit the dispute to a compulsory arbitration board, in which case the provisions of the law in force shall apply. The request for arbitration shall be decided by secret ballot by absolute majority of the workers of the undertaking or by the General Assembly of the trade union or unions to which more than half the workers belong. Within the time limit stated, the parties may organise talks with a view to settling the dispute, etc. Section 2 of the decree provides that when no request for the compulsory arbitration board to be set up is made by common consent between the parties or by the workers alone, the Ministry of Labour may order such a board to be constituted to settle the points of the workers' claim on which no settlement has been reached within the time limit laid down by the law. According to section 3, either the workers' decision to have recourse to the arbitration board or the notification of the decision of the Ministry of Labour binds the workers to return to normal work within three days at most.
  36. 36 From the text of Decree No. 2686, it may be deduced that the purpose of this decree is to curb the activities of armed groups which apparently operate in various areas of the country; the provisions of the decree would seem to be equally applicable to all individuals in respect of whom serious evidence exists that they are connected with certain subversive activities or have encouraged or promoted such activities by statements made in public or other means. Decree No. 2687 refers exclusively to the regulation of the University of Colombia and police measures within the premises of the University. Decree No. 2688 makes it punishable to take part in certain collective acts of aggression against persons attending duly authorised assemblies or against the armed forces or the police in the performance of their duties. Other kinds of offences punished by this decree are the possession or manufacture of incendiary materials or explosives; participation in mob damage to public buildings or unauthorised occupation thereof; arbitrary detention of persons; etc.
  37. 37 First and foremost the Committee considers that the points raised in the complainant organisation's resolutions Nos. 1, 2, 3 and 5 do not consist of allegations relating to the exercise of trade union rights and calling for examination as to their substance. In fact two of these resolutions refer to measures which it is alleged were planned in respect of rents and wages. The affirmation that " trade union leaders " had been " placed by the employers " in certain workers' organisations and had supported those plans is highly ambiguous. At all events the Government denies that the measures in question had been taken or even contemplated. Two of the resolutions refer to certain labour disputes without giving any specific details that would show whether trade union rights had been violated; according to the Government these disputes have already been settled.
  38. 38 The remainder of FEDETA's complaint (resolution No. 4) refers to the promulgation of four decrees, the text of which has been supplied by the Government. In respect of three of them the complainants have not supplied elements of information that would make it possible to establish a connection between the provisions of the decrees themselves and any violation of trade union rights. Decree No. 939, on the other hand, contains provisions which appear to call for examination in the light of certain principles applied by the Committee in previous cases.
  39. 39 The Committee has always held that allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights and has pointed out on several occasions that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. In this connection the Committee has stressed the importance that it attaches, where strikes are prohibited or are subject to restrictions in essential services, to the establishment of adequate safeguards to protect the interests of the workers who are thus deprived of an essential means of defending their occupational interests, and has pointed out that such restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties concerned may participate at every stage, and that the awards given should in all cases be binding on both parties. The Committee explained in this connection that these principles do not apply to the absolute restriction of the right to strike but to the restriction of that right in the essential services or in the civil service, in which case adequate guarantees should be provided to safeguard the interests of the workers.
  40. 40 Where legislative provisions prohibit strikes absolutely, in either a direct or an indirect manner, the Committee endorses the view taken by the Committee of Experts on the Application of Conventions and Recommendations, namely that such a prohibition may sometimes constitute a considerable restriction of the potential activities of trade unions and hence run counter to the generally accepted principles of freedom of association.
  41. 41 By virtue of section 2 of the aforesaid Legislative Decree No. 939, if by the 40th day of the strike the parties by mutual consent, or the workers alone, have not requested the compulsory arbitration board to be set up, the Ministry of Labour may order the case to be submitted to such a board and may in this way, in accordance with section 3, terminate the strike within the following three days. The Ministry would seem to be empowered so to act even when the workers or their unions consider the continuation of the strike useful to the defence of their occupational interests, and not only in cases where essential services or the civil service are affected but in all kinds of strikes. Consequently the application of the decree would appear to entail the risk of restricting potential trade union activities even in cases where the services suspended by the strike are not essential and are not part of the civil service.
  42. 42 Consequently the Committee recommends the Governing Body:
      • (a) for the reasons set forth in paragraph 37 above, to decide that the points raised in resolutions Nos. 1, 2, 3 and 5 attached to the complaint of the Federation of Workers of Antioquia do not call for further examination;
      • (b) to suggest to the Government that it may care to reconsider the provisions of sections 2 and 3 of Legislative Decree No. 939 of 20 April 1966 in the light of the principles and considerations set forth in paragraphs 39 to 41 above, and to request the Government to be good enough to inform the Governing Body of the action it intends to take in this connection.
  43. Allegations relating to the Dismissal of Trade Union Members
  43. 43 In its communication of 3 March 1967 the Trade Union Movement of Cundinamarca (ASICUN) states that the firm of Hermega, upon being authorised to dismiss part of its personnel, chose to dismiss workers affiliated to the works union in preference to other workers. The complainants attach copies of various communications sent by them to the labour authorities. In one of these, dated 18 May 1965, they allege that the undertaking prohibited the leaders of the union from communicating with each other at the workplace, whether during working hours or rest periods; that the undertaking was not paying the trade union the dues withheld from wages; and that executives of the firm had promised better conditions to workers if they resigned from the union. In another of the communications from the Trade Union Movement of Cundinamarca to the labour authorities, dated 22 December 1966, the undertaking is charged with discriminating against the trade union by circulating rumours that workers who joined it would run the risk of dismissal, etc. The complainants allege that Mrs. Maria Fainory de Mongui had been dismissed on 21 December 1966 without just cause, five days after joining the union and one day after confirming to the management that she had joined it.
  44. 44 In its complaint submitted to the I.L.O, ASICUN further states that trade unions are suffering, firstly, from the consequences of " the failure of the Ministry of Labour and its local offices to carry on their work in the proper manner ", thus allowing the employers to make a mockery of workers' rights and claims and, secondly, from the undue partiality shown to employers by officials of the Ministry in the performance of their duties.
  45. 45 Up to the present time no observations have been received from the Government concerning the allegations referred to in the two preceding paragraphs. Consequently the Committee would be grateful if the Government would kindly supply its observations; in the meantime it is adjourning its consideration of the case.

The Committee's recommendations

1. 46. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) for the reasons set forth in paragraph 37 above, to decide that the points raised in resolutions Nos. 1, 2, 3 and 5 attached to the complaint of the Federation of Workers of Antioquia do not call for further examination;
   • (b) in respect of the allegations relating to the provisions of Legislative Decree No. 939 of 20 April 1966, to suggest to the Government that it may care to reconsider the provisions of sections 2 and 3 of that decree in the light of the principles and considerations set forth in paragraphs 39 to 41 above, and to request the Government to be good enough to inform the Governing Body of the action it intends to take in this connection;
   • (c) to take note of the present interim report, it being understood that the Committee will report further to the Governing Body when it receives the observations requested from the Government as indicated in paragraph 45 above.