Effect given to the recommendations of the committee and the Governing Body - Report No 338, November 2005

Case No 2226 (Colombia) - Complaint date: 22-OCT-02 - Closed

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

1. 129. The Commitee last examined this case at its November 2004 meeting [see 355th Report, paras. 751-762]. On that occasion, it formulated the following recommendations:
2. (a) With regard to the dismissal of the executive committee of ANTHOC without the judicial authorization required by Colombian legislation, in the framework of the mass dismissals that took place at the San Vicente de Paul Hospital, considering that according to the Government’s statement there has not been a request to lift the trade union immunity of the dismissed trade union officials, the Committee reiterates its previous recommendation and requests the Government to take steps without delay to reinstate them without loss of pay and to keep it informed in this respect.
3. [...]
4. (c) With regard to the allegations relating to the default on the collective agreement as regards the payment of travel expenses and the withholding of trade union dues owed to SINDICIENAGA by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga in the department of Magdalena, the Committee requests the Government to keep it informed of the outcome of the appeal lodged with the territorial directorate against the administrative decision and expects that steps will be taken to guarantee compliance with the collective agreement in respect of the withholding of trade union dues and the payment of travel expenses to trade union officials.
5. (d) With regard to the allegations submitted by UTRADEC concerning the anti-union harassment against María Teresa Romero Constante, president of SINDICIENAGA, by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga, who refused to negotiate with her in particular, and issued threats to make her leave the trade union, the Committee once again requests the Government to keep it informed of the outcome of the administrative investigation referred to in its previous examination of the case.
6. 130. In a communication dated 5 September 2005, the Government states, with regard to the dismissal of the executive committee of ANTHOC without prior judicial authorization, that the judgements handed down by the Itagui Labour Court found that it was not necessary to lift trade union immunity in the restructuring process at the San Vicente de Paul Hospital in Caldas, Antioquia, as this was not a case of wrongful dismissal, but of dismissal for just cause, i.e. the elimination of a post following administrative restructuring of the state body, based on articles 150(16), 300(7), and 313(6) of the Constitution. Moreover, judgements handed down by the Court of Medellín on 5 and 12 March 2005 found that the workers covered by trade union immunity who had been dismissed from the San Vicente de Paul Hospital in Caldas, Antioquia, should not be reinstated, as the general interest prevails over the individual interest, according to constitutional court ruling T-729 of 1998.
7. 131. With regard to the allegations concerning the default on the collective agreement as regards the payment of travel expenses and the withholding of trade union dues owed to SINDICIENAGA, and the anti-union harassment against María Teresa Romero Constante, president of SINDICIENAGA, by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga, who refused to negotiate with her, the Government states that following the investigation initiated by the Territorial Directorate of Magdalena, Inspectorate of Ciénaga, Decision No. 0010/04 of 9 December 2004 was handed down, which exonerated the legal representative of Ciénaga, in view of the fact that an agreement had been reached between the latter and the trade union. The decision became enforceable, in the absence of any appeal provided for by law. The Government adds that María Teresa Romero Constante, president of SINDICIENAGA, played an active part in that process.
8. 132. With regard to the allegation concerning the dismissal of the executive committee of ANTHOC without prior judicial authorization, on the grounds of restructuring at the San Vicente de Paul Hospital in Caldas, Antioquia, the Committee recalls that in its previous examination of the case it had requested the Government to take steps without delay to reinstate the dismissed trade union officials. The Committee notes the information provided by the Government to the effect that the judicial authority found that it was not necessary to lift trade union immunity as this was not a case of wrongful dismissal, but of dismissal on legal grounds of elimination of posts following administrative restructuring. The Committee regrets the failure to take into account the principle contained in the Workers’ Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers’ representatives with regard to their retention in employment in case of reduction of the workforce (Paragraph 6(2)(f)), and the principle that rationalization and staff reduction processes should involve consultations or attempts to reach agreement with the trade union organizations, without giving preference to proceeding by decree and ministerial decision [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 960 and 936, respectively].
9. 133. With regard to the allegations relating to the default on the collective agreement as regards the payment of travel expenses and the withholding of trade union dues owed to SINDICIENAGA and the anti-union harassment against María Teresa Romero Constante, president of SINDICIENAGA, the Committee notes the information provided by the Government to the effect that an agreement was reached on the default on the collective agreement and the payment of travel expenses and withholding of trade union dues between the trade union and the legal representative of Ciénaga, with the participation of María Teresa Romero Constante.