Definitive Report - Report No 218, November 1982

Case No 1127 (Colombia) - Complaint date: 29-MAR-82 - Closed

1. 234. The complaint is contained in a communication from the National Federation of Civil Servants (FENALTRASE), dated 29 March 1982. FELANTRASE sent further information in a communication dated 12 May 1982. The Government replied in a communication dated 27 May 1982.
2. 235. Colombia has ratified the Freedom of Association and Protection of the Right to organise Convention, 1948 (No. 87), and the Right to organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 236. FENALTRASE alleges that, sheltering under the arbitrary freedom to appoint and dismiss civil servants provided for under the existing legislation, and specifically in section 107 of Decree No. 1950 of 1973, the National Institute of Statistics (DANE), on 22 October 1981, dismissed Ricardo Ballesteros, Pedro Osorio, Fabio Martinez, Wilson Pineda and Bernarda Bernal, respectively chairman, treasurer and Committee members of the National Executive of the Trade Union of Workers of the DANE (SINDANE), as well as Secundino Clavijo, a representative of the Cafeteria Committee. FENALTRASE points out that these dismissals were notified without a copy of the dismissal notice being attached and without any precise reason being given, and also that Bernarda Bernal was later reinstated in her job under section 21 of Decree 3135 of 1968 because she was pregnant when she was dismissed.
2. 237. The complainant, who places these facts in a context of trade union persecution, adds that the head of the DANE refused to talk with the dismissed trade unionists, because he considered them as "former civil servants" and, therefore, "former trade union leaders". In support of its affirmation, FENALTRASE attaches a series of documents signed by the leadership of the DANE or by other public authorities, from which it appears that there was a general strike on 21 October 1982; that four of the dismissed trade unionists were officers of the SINDANE Executive and the other a deputy member of the same Executive, and that the head of the DANE rejected two requests from Ricardo Ballesteros and Pedro Osorio as trade union leaders, one to obtain copies of the dismissal notices and the other to discuss the matter, stating that it was not possible to pay attention to their petitions, in view of the fact that they were former civil servants.

B. The Government's reply

1. 238. In its communication of 27 May 1982, the Government strongly rejects the complainant's assertions and states that the appointments of Ricardo Ballesteros, Pedro Osorio, Fabio Martinez, Wilson Pineda and Bernarda Bernal were declared effectively invalid, not because they were trade unionists, but because of the Government's authority freely to appoint and dismiss its employees when this is dictated by reasons of service, as provided for by section 107 of Decree No. 1950 of 1973, in accordance with which the nominating authority may declare an ordinary or provisional appointment invalid at any time, without having to justify its decision. The Government likewise points out that Sra. Bernal was reinstated in her post as a result of her pregnancy.
2. 239. The Government adds that it is not a question of an arbitrary authority, since there must always be a reason for taking a decision and it must be real, fair and reasonable, and also, if a civil servant is dismissed from his position for being a trade unionist, he shall be able to submit administrative and judicial appeals to which he is legally entitled with a view to establishing his right which has been violated. Nevertheless, the Government continues, the State cannot be obliged to keep an employee whose performance at work or conduct are not satisfactory in his post simply because he is a trade unionist, nor can there be any restrictions on the freedom of the State to select its servants and dismiss them when the needs of the service so dictate, owing to the efficiency required by the operation of the civil service.
3. 240. On the other hand, the Government denies the complainant's assertion that an employee whose appointment is invalidated does not continue to be a trade union leader, since it appears from section 4 of Decree no. 1469 of 1968 and sections 389 and 399 of the Labour Code that a civil servant who has been removed from his post, either through his own resignation or because the appointment has been invalidated, shall continue to be a trade union leader until he leaves or is expelled from the trade union organisation to which he belongs.

C. The Committee's conclusions

1. 241. The Committee notes that in the present complaint the complainant has alleged that, in a context of trade union persecution, the leaders of the National Executive of the Trade Union of Workers of the DANE and the representative of the Cafeteria Committee have been dismissed, and also that they, on ceasing to be civil servants, were regarded by the DANE as former trade union leaders.
2. 242. The Committee takes note of the Government's statements and, in particular, that the legislation grants the civil service the authority freely to appoint and dismiss employees when the needs of the service so dictate, that the State cannot be obliged to keep in his post an employee whose performance at work or conduct are not satisfactory and that it was possible for Bernarda Bernal to be reinstated in her former job. The Committee notes, however, that the Government has confined itself to referring to the content of the existing legislation regarding the freedom to dismiss civil servants and to explaining the conditions in which they may be dismissed, without specifying the actual grounds for the invalidation of the appointments of the trade union leaders, Ricardo Ballesteros, Pedro Osorio, Fabio Martinez, Wilson Pineda and Secundino Clavijo, and without referring to the evidence adduced by the complainant regarding the anti-union nature of the above invalidations, namely: the fact that the invalidations took place on the same day and affected four of the six officers of the SINDANE Executive, one deputy member of the Executive, and the representative of the Cafeteria Committee, and the fact that a general strike took place on 21 October 1981, the day before the invalidations.
3. 243. The Committee notes that, according to the Government, the persons concerned may legally submit administrative and judicial appeals in connection with their dismissal, and that there must always be a reasonable cause for the administration to exercise the power freely to appoint and dismiss its employees. The Committee, however, has not been informed that the persons concerned have availed themselves of such right of appeal.
4. 244. In these circumstances, the Committee considers that as the Government has pointed out only in general terms that the appointments of the persons mentioned above were not invalidated because they were trade union leaders without denying the complainant's allegation that the dismissals took place as a result of trade union activities, would draw the Government's attention to Article 1 of Convention No. 98, which provides that protection against acts of anti-union discrimination shall apply in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities, and that this Protection is particularly important in the case of trade union leaders. The Committee, accordingly, requests the Government to take appropriate measures to ensure the reinstatement of Ricardo Ballesteros, Pedro Osorio, Fabio Martinez, Wilson Pineda and Secundino Clavijo in their jobs.
5. 245. As regards the allegation that, once the appointments of the leaders in question had been invalidated, the persons concerned were regarded by the DANE as "former" union leaders with whom it refused to talk, the Committee notes that, according to the Government, it follows from section 4 of Decree 1469 of 1968 and sections 398 and 399 of the Labour Code that a civil servant who is a trade union leader who has been removed from his post continues to be a union leader until he leaves or is expelled from his trade union organisation. Nevertheless, the Committee notes that the complainant has submitted documents from which the conclusion may be drawn that the DANE Executive has not recognised Ricardo Ballesteros and Pedro Osorio as trade union leaders since their appointments were invalidated. In this respect, although the Committee recognises that the refusal by the employer to discuss or bargain is not necessarily an infringement of freedom of association, although it might considerably restrict its exercise, it considers that the harmonious development of labour relations would be promoted if the Government were to take steps to ensure that the above-mentioned provisions of Decree No. 1469 and the Labour Code are fully respected and that, in accordance with these provisions, the DANE Executive should recognise Ricardo Ballesteros and Pedro Osorio as trade union leaders.

The Committee's recommendations

1. 246. In these circumstances, the Committee recommends the Governing Body to approve the following conclusions:
   • (a) as regards the allegation relating to the dismissal of five leaders of the National Executive of the Trade Union of Workers of the DANE and the representative of the Cafeteria Committee:
   • (i) the Committee notes that the trade union leader, Bernarda Bernal, was able to be reinstated in her former job;
   • (ii) in view of the fact that the information available suggests that these leaders were dismissed as a result of their trade union activities, the Committee draws the Government's attention to the fact that protection against acts of anti-union discrimination shall apply in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities. It requests the Government to take appropriate measures to ensure the reinstatement of these leaders in their jobs;
   • (b) as regards the allegation that the leaders, Ricardo Ballesteros and Pedro Osorio were regarded by the DANE as former trade union leaders because of their dismissal, although the Committee recognises that the refusal by the employer to discuss or bargain is not necessarily an infringement of freedom of association - although it might considerably restrict the exercise thereof - it considers that the harmonious development of labour relations would be promoted if the Government were to take steps to ensure that the law was fully respected and that, in accordance with the law, the DANE Executive should recognise Ricardo Ballesteros and Pedro Osorio as trade union leaders.