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Interim Report - Report No 348, November 2007

Case No 2356 (Colombia) - Complaint date: 30-MAY-04 - Closed

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Allegations: The National Union of Public Employees of the National Service for Training SENA (SINDESENA), the Union of Employees and Workers of SENA (SINDETRASENA) and the Single Confederation of Workers of Colombia (CUT) allege the collective dismissal of trade union members and trade union leaders as part of a restructuring process; the refusal to register the trade union SINDETRASENA; the refusal by the National Service for Training (SENA) to negotiate with the trade union organizations; the Academic Trade Union Association of Lecturers of the University of Pedagogy and Technology of Colombia (ASOPROFE–UPTC) alleges the dismissal of a trade unionist, and the Cali Municipal Enterprises Union (SINTRAEMCALI) alleges that the administrative authority declared a permanent assembly meeting staged within the Municipal Enterprises of Cali (EMCALI) to be illegal and that this decision gave rise to the dismissal of 49 trade union members and leaders

320. The Committee last examined this case at its June 2006 meeting and submitted an interim report to the Governing Body [see 342nd Report, paras 299–372, approved by the Governing Body at its 296th Session].

  1. 321. The Academic Trade Union Association of Lecturers of the University of Pedagogy and Technology of Colombia (ASOPROFE–UPTC) sent new allegations in communications dated 12 May and 11 and 28 August 2006. The National Union of Public Employees of the National Service for Training SENA (SINDESENA) sent new allegations in a communication of 12 June 2006. The Cali Municipal Enterprises Union (SINTRAEMCALI) sent new allegations in a communication dated 25 May 2007.
  2. 322. The Government sent its observations in communications dated 1, 6 and 15 September and 9 October 2006 and 27 June 2007.
  3. 323. 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. Previous examination of the case

A. Previous examination of the case
  1. 324. On last examining the case in June 2006, the Committee made the following recommendations [see 342nd Report, para. 372]:
  2. (a) As to the dismissal of the eight National Union of Public Employees of the National Service for Training SENA (SINDESENA) union leaders, whose posts the Committee requested the Government to take the necessary measures to retain in order that they could carry out their functions during the restructuring process and, should this prove impossible, to transfer them to similar posts, the Committee, noting that the trade union immunity of one of these individuals has already been lifted, leading to his dismissal, requests the Government to keep it informed of any developments in the circumstances of the other seven union leaders.
  3. (b) As to the National Service for Training’s (SENA) refusal to bargain collectively, the Committee, recalling that special modalities of application may be established for collective bargaining within the public administration, but bearing in mind that collective bargaining cannot be considered to exist merely on the basis of the presentation of petitions, once again requests the Government to take the necessary measures to ensure that, in consultation with the trade union organizations concerned, legislation be amended without delay in order to bring it into line with the Conventions ratified by Colombia. The Committee requests the Government to keep it informed of any developments in this regard.
  4. (c) As to SENA’s refusal to grant trade union leave, the Committee, recalling that
  5. Paragraph 10(1) of the Workers’ Representatives Recommendation, 1971 (No. 143), provides that workers’ representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions and that, whilst the workers’ representative may be required to seek authorization from his/her superiors before taking time off, such authorization should not be denied without proper justification, expects that the Government will continue to grant the authorization necessary for the carrying out of trade union activities, in consultation with the organizations concerned.
  6. (d) As to the new allegations presented by the complainant organization concerning the persecution and threatening of trade union leaders, the launch of disciplinary proceedings against the entire Regional Subdirective of Magdalena for carrying out trade union activities and the three-month sanction imposed on Mr Ricardo Correa Bernal, Vice-Chairperson of the Medellín Subdirective and Secretary of the organization’s national committee, the Committee requests the Government to send its observations without delay.
  7. (e) As to the allegations presented by the Cali Municipal Enterprises Union (SINTRAEMCALI) concerning the administrative authority’s declaration that the permanent assembly meeting held on Cali Municipal Enterprises (EMCALI) premises was illegal, a declaration which subsequently led to the dismissal of 43 trade union members and six trade union leaders, the Committee requests the Government:
  8. (i) to take the necessary measures without delay to amend article 451 of the Substantive Labour Code, in order that responsibility for declaring a strike or work stoppage illegal can be accorded to an independent body which has the confidence of the parties involved. The Committee requests the Government to keep it informed of any developments in this regard;
  9. (ii) as to the ruling by the Ministry of Social Protection confirming the occurrence of a work stoppage and its declaration that this stoppage was illegal, the Committee requests the Government to inform it of the final outcome of the action initiated before the Council of State against resolution No. 1696 of 2 June 2004, in order to determine whether the events that took place led to a work stoppage. The Committee trusts that the Council of State will take into account the principles set forth in the preceding paragraphs concerning the requirement for investigations and the declaration of illegal strikes to be undertaken by an independent authority;
  10. (iii) as to the dismissal of the 43 trade union members and six trade union leaders as a result of their alleged participation in a work stoppage declared illegal by the Ministry of Social Protection, currently under examination by the Council of State, the Committee requests the Government to re-examine the situation of those dismissed in the light of the future ruling of the Council of State, and to keep it informed of any developments in this regard;
  11. (iv) as to the investigation initiated by the Office of the Public Prosecutor into acts of violence, the Committee requests the Government to keep it informed of the outcome of this investigation;
  12. (v) as to the most recent allegations presented by SINTRAEMCALI concerning the launch of 462 sets of disciplinary proceedings and the pressure exerted on workers not to discuss the trade union or risk dismissal, the Committee requests the Government to take the necessary measures to guarantee EMCALI workers the ability to exercise their trade union rights freely and without fear of reprisals, to carry out an independent investigation with the confidence of both parties into the pressure, threats and disciplinary proceedings to which workers were subject, and to keep it informed in this regard.
  13. (f) As to the non-hiring of lecturer, Ms Nilce Ariza, by the University of Pedagogy and Technology of Colombia (U.P.C.T.), the Committee requests the Government to take the necessary measures to carry out an independent investigation in order to establish whether the renewal of Ms Ariza’s contract was refused on anti-union grounds and to inform the Committee of the outcome.
  14. (g) As to the proceedings that have been initiated against the chairperson of the trade union, Mr Luis Bernardo Díaz Gamboa, on the grounds that he represented Ms Ariza, the Committee requests the Government to take measures to revoke the proceedings launched and to fully guarantee Mr Gamboa’s right to carry out his trade union activities.
  15. B. New allegations
  16. 325. In its communications dated 12 May and 11 and 28 August 2006, ASOPROFE–UPTC alleges that in the case of Ms Isabel Cristina Ramos Quintero, which has previously been examined by the Committee on Freedom of Association [see 342nd Report], the Second Labour Court of the Circuit of Tunja on 2 May 2006 ordered the university to reinstate the trade union leader and to pay her any wages and benefits owed to her as a result of its infringement of her trade union immunity. This ruling has still not been implemented. The trade union organization states that the case of Ms Ramos Quintero is identical to that of Ms Nilce Ariza Barbosa.
  17. 326. The trade union organization adds that the university dismissed Mr Gonzalo Bolívar, a temporary lecturer attached to the Faculty of Law, despite the fact that, as a member of the ASOPROFE–UPTC Claims Committee, he enjoyed trade union immunity.
  18. 327. In its communication of 12 June 2006, SINDESENA includes a copy of the judicial rulings concerning the lifting of the trade union immunity of several trade union leaders.
  19. 328. In its communication dated 25 May 2007, SINTRAEMCALI states that the Government has failed to take any steps to carry out the independent investigation requested by the Committee in its previous recommendations, nor have any measures been adopted to determine responsibility with regard to the events of 2004 which, according to the complainant organization, did not involve acts of violence. This claim was confirmed by interlocutory ruling No. 58, issued by the District Attorney’s Office.
  20. 329. The complainant organization also states that the Government has failed to review the situation of the 51 workers (45 trade union members and six trade union leaders) who were dismissed. These workers have been put on a blacklist, a fact made clear to them whenever they seek employment with a public or private enterprise. Furthermore, under file No. DOVCO-2071-2005, the Office of the Official Municipal Representative of Santiago de Cali nullified the proceeding and ruled, through interlocutory order No. 470, that disciplinary proceedings should be dropped. Both these measures were in response to the dismissal of the 51 workers in a manner that violated due process by denying them their right to a defence. In the interlocutory order, the Official Municipal Representative concludes that, at the time of the events of 26, 27 and 28 of May 2004, normal services by the Municipal Enterprises of Cali (EMCALI) were not affected. The complainant organization emphasizes that at no time during the events of 2004 were services interrupted.
  21. 330. The complainant organization adds that no steps have been taken to amend article 451 of the Substantive Labour Code.
  22. 331. As to the case before the Council of State concerning resolution No. 1696 of 2 June 2004, SINTRAEMCALI states that proceedings are under way.
  23. C. The Government’s reply
  24. 332. In its communications dated 1, 6 and 15 September, 9 October 2006 and 27 June 2007, the Government sends the following observations.
  25. 333. As to subparagraph (a) of the recommendations concerning the dismissal of the seven SINDESENA trade union leaders, the Government states that definitive rulings have been handed down in the second instance with regard to three of the ongoing proceedings: in the case of Marco Tulio Ramírez Brochero, the First Labour Court of the Circuit of Riohacha, in a ruling in the first instance (handed down on 15 December 2004), and the Higher Court of the Legal District of Riohacha, in a ruling in the second instance handed down on 3 March 2005, authorized SENA to terminate the legal and regulatory relationship of the individual concerned. On that basis, SENA issued resolution No. 000795 of 13 May 2005, retiring him from service. A letter was sent to Mr Ramírez Brochero informing him that he was being retired owing to the elimination of his post, as ordered in article 8 of Decree No. 250 of 2004, and that, by law, he had the right to be transferred to an equivalent post in the public sector within the following six months or to compensation, and that he should inform the Director General of SENA of his decision in writing within the next five days. As Mr Ramírez Brochero gave no indication of his decision within that period, under the terms of article 46 of Decree No. 1568 of 1998, and article 30 of Decree No. 760 of 2005, he was deemed to have accepted the compensation, and was accordingly paid the sum of 41,077,316 pesos through resolution No. 000922 of 1 June 2005.
  26. 334. In the case of Mr Leonel Antonio González Alzate, the Higher Court of Armenia handed down a ruling in the second instance, dated 28 November 2005, in which it refused authorization to retire the civil servant (who enjoyed trade union immunity) from service. For this reason, Mr González Alzate is still a member of staff.
  27. 335. In the case of Mr Juan Clímaco Muriel González, the Eleventh Labour Court of the Circuit of Medellín, in a ruling handed down in the first instance on 20 September 2005, and the Higher Court of Medellín, in a ruling handed down in the second instance on 2 February 2006, authorized SENA to terminate the legal relationship with the individual concerned. Consequently, SENA issued resolution No. 000636 of 29 March 2006, retiring him from service. He chose, within the legal time frame, to be transferred to another equivalent post within the following six months. As there are no equivalent vacant posts to which he could be appointed in SENA, his request was referred on 31 May 2006 to the National Civil Service Commission by letter No. 019502, in order that he might be placed elsewhere in the public service.
  28. 336. According to the Government, of the five remaining cases involving the lifting of trade union immunity, four are before the labour court of the first instance and concern Wilson Neber Arias Castillo, Edgar Barragán Pérez, Pedro Sánchez Romero, Carlos Rodríguez Pérez and Oscar Luis Mendívil Romero.
  29. 337. As regards subparagraph (b) on collective bargaining in the public sector, the Government considers that, given that this is a legislative matter, dialogue with the Committee of Experts on the Application of Conventions and Recommendations should continue.
  30. 338. With regard to subparagraph (c) concerning trade union leave, in line with information provided by the Secretary-General of SENA, a process of conciliation took place before the Eighth Labour Inspectorate of the Territorial Directorate of Cundinamarca regarding the number of periods of trade union leave SENA should grant trade union leaders per year. Most periods of leave had already been granted, but additional periods agreed as a result of conciliation have already been made official within SENA (the Government attaches a copy of this conciliation agreement).
  31. 339. As to subparagraph (d) of the recommendations concerning the allegations of persecution and threats against trade union leaders, the launch of disciplinary proceedings against the entire Regional Subdirective of Magdalena and the three-month sanction imposed on Mr Ricardo Correa Bernal, the Government states that in the case of the disciplinary proceedings conducted by SENA’s internal disciplinary monitoring office, in line with its legal functions, with regard to the acts allegedly carried out by the leaders of SINDESENA in the Regional Subdirective of Magdalena, the Secretary-General of SENA stated that the disciplinary procedure had been terminated and the disciplinary investigation filed by an order dated 27 March 2006. As to Mr Ricardo Correa Bernal, the Secretary-General states that an investigation by SENA’s internal disciplinary monitoring office into a probable assault on a colleague in February 2004 is under way. Through decision No. 00561 of 21 March 2006 the proceedings, from the order launching the disciplinary investigation onwards, were nullified in the second instance, without prejudice to the evidence presented. Mr Correa was informed of this decision on 24 March 2006, through letter No. 010816. The accused has been informed of the charges and invited to present a defence. The Government emphasizes that the events under investigation in the present case are in no way related to Mr Correa’s status as a trade union leader, nor are they a means of trade union persecution.
  32. 340. As to subparagraph (e) of the recommendations concerning the administrative authority’s declaration that the permanent assembly meeting held within EMCALI was illegal, the Government reiterates its previous position, and states that the Ministry of Social Protection is the competent body with regard to the investigation and determination of the illegality of work stoppages. The Government recalls that the events in the present case are a matter of established fact, recognized by the complainants themselves, and these accepted facts are the basis of the Government’s own observations, which have not been taken into consideration by the Committee. The text of the complaint itself is, without a shadow of a doubt, incontrovertible proof of the occurrence of a series of events in relation to which, the Government reiterates, it has requested the Committee to take into consideration its statements when making its recommendations. The Government does not understand why the Committee would recommend that an investigation be carried out into whether certain events took place, when those events emerged from the complaint made to the ILO and are the basis for the request made by the Government to the Committee. It is clear that a number of workers took over the premises of EMCALI and that this action took place during working hours, that is to say, in the employer’s time. No verification of these events is required beyond the recognition of their occurrence implicit in the complaint itself.
  33. 341. In the light of the above, the Government has requested the Committee to reaffirm the clear stance it has adopted in previous cases, namely, that when trade union activities are carried on in this way (in the employer’s time, using the employer’s staff for trade union purposes, and using the union member’s position in the enterprise to put improper pressure on another employee), it is not possible for the person concerned to invoke the protection of Convention No. 98 or to contend that, in the event of dismissal, legitimate trade union rights have been infringed. The Government considers that this point lies at the very heart of the matter in question.
  34. 342. As to subparagraph (e)(ii) concerning the confirmation of the occurrence of a work stoppage and the declaration of its illegality currently before the Council of State, the Government states that it will send a copy of the respective ruling once it has been adopted.
  35. 343. As to subparagraph (e)(iv) of the recommendations concerning the investigation initiated by the Office of the Attorney-General, the Government and the Attorney-General, in accordance with the undertaking made to the ILO and the trade union organizations, are focusing their efforts on a project aimed at ensuring, through swift and sound decisions, effectiveness and efficiency with regard to investigations involving infringements of trade unionists’ rights. The Government has set aside 4 billion pesos for this purpose. The project is designed to implement machinery for expediting and following up cases brought before the ILO by: (i) optimizing the investigation proceedings; (ii) processing cases and accelerating the paperwork; and (iii) carrying out a qualitative analysis of the available information and of the nature of the offences, by strengthening the National Human Rights Unit, the National Terrorism Unit and the directorates of their respective sections. The Human Rights Unit of the Office of the Attorney-General has set up a special investigation group comprising five specialist district attorneys, who will be supported by the human rights investigation group and will be responsible for 102 investigations of cases exclusively involving trade unionists.
  36. 344. As to subparagraph (e)(v) of the recommendations, the Government states that, with regard to the launch of disciplinary proceedings, article 29 of the Political Constitution provides for due process in all types of judicial and administrative proceedings. The article states that “No one may be judged except in accordance with laws that existed prior to the commission of the offence of which the individual is accused, by a competent judge or tribunal, and in accordance with all the proper formalities required in each case … Any evidence obtained in violation of due process shall be null and void.” Furthermore, the Government states that the fact that the unionized workers are the subject of disciplinary proceedings does not mean that their right to form trade unions and freedom of association will be disregarded. Lastly, the Government expresses its concern at the new allegations, bearing in mind that the trade union has not presented any evidence in support of these claims, including the assertion that pressure is exerted on workers not to discuss the trade union.
  37. 345. As to subparagraph (f) of the recommendations concerning the termination of the contract of the lecturer Ms Nilce Ariza, the Government reiterates its previous statements (the Government had stated that the contract in question was a fixed-term temporary contract, renewable subject to successful participation in a competition) and indicates that, as Ms Ariza had failed to comply with the requirements, i.e. participation in the competitive selection procedure, without any need for a special invitation to that effect, she could not take part in that procedure; this is not in any way related to her position as a trade unionist.
  38. 346. Furthermore, the Government states that the Territorial Directorate of Boyacá, through resolution No. 000085 of 30 March 2006, imposed a penalty on the University of Pedagogy and Technology of Colombia (UPTC) for infringement of the right of association, a ruling that was upheld through resolution No. 000159 of 6 June 2006 ruling on a request for review, and resolution No. 000281 of 14 August 2006 on an appeal. The Government provides copies of the resolutions concerning the refusal to grant trade union leave and facilities within the enterprise.
  39. 347. The Government also attaches a copy of the letter for information sent by the rector of the university to the Government, which refers to the situation of Ms Ariza, as well as stating, with regard to the re-examination of the situation of the lecturer Ms Isabel Cristina Ramos Quintero, that the ruling of 2 May 2006 issued by the Second Labour Court of the Circuit of Tunja is still pending an appeal.
  40. 348. As regards subparagraph (g) of the recommendations, the Government states that it is not responsible for the proceedings initiated against the Chairperson of the trade union, Mr Luis Bernardo Díaz Gamboa. The Government reminds the Committee on Freedom of Association that, according to article 113 of the Political Constitution, which addresses the separation of the three powers, the Government cannot interfere with judicial decisions. The Government attaches a copy of a communication from the Office of the Attorney-General stating that a verdict of not guilty was pronounced in the disciplinary proceedings against Mr Díaz Gamboa on 29 June 2006.
  41. 349. As to the new allegations regarding the dismissal of the lecturer Mr Gonzalo Bolívar, who was attached to the Faculty of Law of the UPTC and who enjoyed trade union immunity, the Government emphasizes that, in line with the provisions of Act No. 30 of 1992 and Decree No. 1279 of 2002, the UPTC can hire lecturers on a temporary basis.
  42. 350. Section 74 of Act No. 30 of 1992, governing the Public Higher Education Service, states that: “Temporary lecturers are employees who are required to work on a temporary basis, either full or part-time, for a period of less than one year. Temporary lecturers are neither public employees nor official workers. Their services shall be recognized through decision (…).”
  43. 351. The above provision was declared by the Constitutional Court to be enforceable. Furthermore, article 3 of Decree No. 1279, of 2002, states that “Temporary lecturers are not public teaching employees governed by special regulations, nor are they part of the university teaching career structure, and their terms of remuneration are not governed by the present decree. However, they are engaged in accordance with each university’s own regulations, subject to the terms of Act No. 30 of 1992 and other constitutional and legal provisions in force.” In the light of the legal situation described above, the Higher Council of the UPTC, in exercise of its administrative powers (in particular those conferred upon it by the General Statutes of the University through Agreement No. 066 of 2005) established the regulations for the recruitment of this category of lecturer. These are contained in Agreements Nos 021 of 1993, 060 of 2002 and 062 of 2006.
  44. 352. Agreement No. 021 of 1993, amending and adopting the Statute of University Professors of the UPTC, provides for cases in which teaching staff may be engaged on a temporary basis. Article 20 states that:
  45. Regardless of the terms of article 15, the rector, at the request of the respective dean, may under the following circumstances engage as temporary lecturers individuals fulfilling the requirements set in article 14:
  46. (a) in order to replace members of teaching staff who are on leave, secondment or a sabbatical for the period in question (up to, but not exceeding, one year);
  47. (b) in order to fill vacant teaching posts, for up to one academic period;
  48. (c) when a teaching post has to be filled following a competitive selection process in which no suitable candidate was found to have applied;
  49. (d) when there is a need for the services of a visiting lecturer of recognized scientific, technical, humanistic, artistic and/or pedagogical merit. In this case, there is no need for the requirements set out in article 14 to be met.
  50. 353. In cases (a), (b) and (c) of the above article, candidates who have achieved the highest scores are given preference, provided that the scores are not less than 60 per cent. In no case do these temporary appointments confer the right to a permanent appointment unless the other relevant requirements have been fulfilled.
  51. 354. The Government states that the Higher Council of the UPTC subsequently enacted regulations to implement article 3, providing for the category of temporary lecturer to provide academic services on a temporary basis. Agreement No. 060 of 2002 stipulated that temporary lecturers would be appointed for a fixed term of not more than ten months in a given year.
  52. 355. The appointment of Dr Bolívar took these provisions into account. The Faculty of Law required his services for one academic period of six months, or not more than two totalling not more than ten months, it being made clear that the appointment would end without further notice, and that neither of the parties (the university or the lecturer) would continue to be bound by the original terms. The Head of the Legal Office of the university states that, as of 11 August 2006, Dr Bolívar’s services were no longer required, and the law department organized a public merit-based selection process to fill first-time permanent lecturer posts, specifically including the field of criminal law. The Government emphasizes that whoever achieves the marks required to become a permanent lecturer will be awarded the post. In the present case, the academic duties previously assigned for a number of years to Dr Bolívar as a temporary lecturer would be assigned to the permanent lecturer who won the competition. Dr Bolívar thus ceased to be employed by the university because the institution did not require the services of a temporary lecturer, given that a selection process had been organized to find a permanent one. Furthermore, his employment relationship with the university was not unilaterally terminated; the fixed term set out in the various administrative acts elapsed, which meant there was no need to request judicial authorization to retire him.
  53. 356. Finally, the Government states that the Ministry of Social Protection abstained from intervening in the dispute with Dr Bolívar because the Coordinating Group for Prevention, Inspection, Monitoring and Supervision of the Territorial Directorate of Boyacá felt that the case involved facts that should be put before the magistrates, as the Ministry cannot determine rights.

D. The Committee’s conclusions

D. The Committee’s conclusions
  1. 357. The Committee notes that the questions still pending involve the following issues: (1) the restructuring process and the consequent dismissal of trade union members and leaders of SINDESENA; (2) the Ministry of Social Protection’s declaration that a work stoppage carried out by SINTRAEMCALI on 26 and 27 May 2004 within EMCALI was illegal, giving rise to the dismissal of 43 workers and six trade union leaders; and (3) the non-renewal of the employment contracts of three lecturers at the UPTC, despite the fact that they enjoyed trade union immunity. The Committee notes the new allegations made by SINTRAEMCALI, SINDESENA and ASOPROFE–UPTC, which refer to the questions pending.
  2. Restructuring of the National Service for
  3. Training (SENA)
  4. 358. As to subparagraph (a) of the recommendations concerning the dismissal, owing to the suppression of their posts, of eight trade union leaders of SINDESENA (of which the Committee took note during its last examination of the case of the lifting of trade union immunity and dismissal of one of them), the Committee notes that, in its last communication, the trade union organization provides copies of various judicial decisions concerning the lifting of trade union immunity. The Committee also notes that the Government states that definitive judicial rulings have been handed down with regard to three of the leaders, namely, Marco Tulio Ramírez Brochero, Mr Leonel Antonio González Alzate and Mr Juan Clímaco Muriel González. In the case of Mr Brochero, the judicial authority lifted his trade union immunity and he was subsequently dismissed. The Committee notes the Government’s statement to the effect that Mr Brochero was informed that, by law, he had the right to compensation or to be transferred to an equivalent post in the public sector within the following six months. The Government states that, having failed to indicate his decision, he was paid the appropriate compensation in accordance with the relevant legislation.
  5. 359. In the case of Mr Leonel Antonio González Alzate, the Committee notes that the Higher Court of Armenia did not authorize the dismissal of this worker with trade union immunity and, consequently, he continues to work for SENA.
  6. 360. As regards Mr Juan Clímaco Muriel González, the Committee notes that the judicial authority authorized the lifting of his trade union immunity and consequent dismissal, and that he exercised his legal right to be transferred to another equivalent post within the service within the following six months, for which reason his request was referred to the National Civil Service Commission in order that he might be placed elsewhere in the public service.
  7. 361. The Committee notes that according to the Government, the five remaining cases involving the lifting of trade union immunity, concerning Messrs Wilson Neber Arias Castillo, Edgar Barragán Pérez, Pedro Sánchez Romero, Carlos Rodríguez Pérez and Oscar Luis Mendívil Romero, are still ongoing. The Committee requests the Government to continue to keep it informed in this regard.
  8. 362. As to subparagraph (b) of the recommendations concerning SENA’s refusal to bargain collectively, the Committee notes that, according to the Government, this is a legislative matter and should be examined by the Committee of Experts on the Application of Conventions and Recommendations. In this regard, the Committee recalls that “Where national laws, including those interpreted by the high courts, violate the principles of freedom of association, the Committee has always considered it within its mandate to examine the laws, provide guidelines and offer the ILO’s technical assistance to bring the laws into compliance with the principles of freedom of association, as set out in the Constitution of the ILO and the applicable Conventions.” [See Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 11.] In this regard, recalling that special modalities of application may be established for collective bargaining within the public administration, the Committee once again requests the Government to take the necessary measures to ensure that, in consultation with the trade union organizations concerned, legislation be amended without delay in order to allow the employees of the public administration to bargain collectively beyond merely submitting respectful petitions, in line with the Conventions ratified by Colombia. The Committee requests the Government to keep it informed of any developments in this regard and reminds it that it may avail itself of the technical assistance of the Office. As to subparagraph (c) of the recommendations concerning SENA’s refusal to grant trade union leave, the Committee notes with interest that a conciliation process was held on 27 March 2006, before the Eighth Labour Inspectorate of the Territorial Directorate of Cundinamarca. This process involved SENA and SINDESENA, which reached an agreement on the number of days off to be granted annually by SENA to trade union leaders.
  9. 363. As to subparagraph (d) of the recommendations concerning persecution and threats against SINDESENA trade union leaders through the launch of disciplinary proceedings against the entire Regional Subdirective of Magdalena for carrying out trade union activities and the three-month sanction imposed on Mr Ricardo Correa Bernal, Vice-Chairperson of the Medellín Subdirective and Secretary of the organization’s national committee, the Committee notes the Government’s statement to the effect that, through an order dated 27 March 2006 SENA’s internal disciplinary monitoring office terminated the procedure and definitively closed the disciplinary investigation into the entire Regional Subdirective of Magdalena.
  10. 364. As to Mr Ricardo Correa Bernal, the Committee notes the Government’s statement that by virtue of decision No. 00561 of 21 March 2006 the proceedings, from the order issued initiating the disciplinary investigation onwards, were nullified, and Mr Correa was informed of this fact. The Committee further notes that an investigation is currently under way concerning an assault on a colleague in February 2004; according to the Government, this matter is in no way connected to the exercise of trade union rights. The accused has been informed of the charges and invited to present a defence. The Committee requests the Government to keep it informed of the final ruling concerning this case.
  11. Cali Municipal Enterprises (EMCALI)
  12. 365. As regards subparagraph (e) of the recommendations concerning the administrative authority’s declaration that the permanent assembly meeting held within EMCALI was illegal, leading to the dismissal of 43 trade union members and six union leaders, the Committee notes that, firstly, the trade union organization states that the dismissal affected 45 trade union members and six leaders, that is to say, 51 workers. Secondly, the Committee notes that, in its latest communication, SINTRAEMCALI alleges that the Government has failed to adopt any measures regarding the recommendations made by the Committee when it last examined the case, and that the proceedings initiated before the Council of State against resolution No. 1696 of 2 June 2004 (issued by the Ministry of Social Protection, which declared the work stoppage to be illegal), in order to determine whether a work stoppage took place, is still pending.
  13. 366. Furthermore, the Committee notes that, according to the Government, the Ministry of Social Protection is the competent body with regard to investigating and determining the illegality of work stoppages, and the events which occurred are acknowledged as fact by the complainant organization itself, that is to say, the premises were taken over during working hours, and the Committee should take these circumstances into consideration.
  14. 367. In this regard, the Committee recalls, first, that there is a clear discrepancy in terms of the facts between the allegations presented by SINTRAEMCALI and the Government’s observations. The complainant organization claims that the event was a permanent assembly meeting which did not involve a work stoppage (a claim upheld by various communications from local authorities, stating that they continued to receive uninterrupted services); the Government on the other hand maintains that there was a work stoppage and that the premises of EMCALI were taken over by force.
  15. 368. Secondly, the Committee recalls that its previous recommendations also referred to the legal aspects of the matter, and reiterates that responsibility for declaring a strike illegal should not lie with the Government but with an independent body which has the confidence of the parties involved. This point is even more important when events occur within public enterprises such as EMCALI in order to ensure that the authorities do not act as both judge and party to the conflict. In this regard, the Committee has on numerous occasions expressed the view that the best independent body is the judicial authority. The Committee therefore once again requests the Government to take the necessary measures to amend article 451 of the Substantive Labour Code, in order that responsibility for declaring strikes or work stoppages illegal be placed with an independent body which has the confidence of the parties involved, and to keep it informed of any developments in this regard.
  16. 369. The Committee further recalls that in the present case, the occurrence of a work stoppage and the declaration of illegality by the Ministry of Social Protection through resolution No. 1696 of 2 June 2004, which led to the dismissal of 45 trade union members and six union leaders for alleged participation in the said work stoppage, are being examined by the Council of State, which is the highest judicial authority in matters relating to the public administration. In this regard, the Committee observes that, more than three years after the events occurred, no judicial ruling has yet been handed down in this regard, and recalls that justice delayed is justice denied. The Committee expresses the firm hope that the Council of State will issue a ruling in the near future, and trusts that it will take into consideration the principle that the responsibility for investigations and for declaring strikes or work stoppages illegal should lie with an independent body. The Committee requests the Government to keep it informed in this regard.
  17. 370. As regards the 51 workers dismissed (45 trade union members and six union leaders), the Committee once again requests the Government, in the light of the ruling of the Council of State once it has been handed down, to re-examine the situation of the individuals dismissed and to keep it informed in this regard.
  18. 371. As to the investigation launched before the Office of the Attorney-General into the acts of violence that occurred (violent takeover of the premises, violent interventions on the part of the workers and the police), the Committee notes the information provided by the Government concerning the plan to implement machinery for expediting and following up cases involving trade unionists and the creation of the Human Rights Unit comprising five specialist attorneys. The Committee expresses its deep concern that the Government fails to provide specific information concerning the investigation launched into the violent events that occurred within EMCALI in May 2004, and requests it to do so without delay.
  19. 372. As to the launch of 462 separate disciplinary proceedings and the pressure placed on workers not to discuss trade union issues under threat of dismissal, with regard to which the Committee had requested an independent investigation, the Committee notes that the Government has not sent any specific information in this regard. The Committee recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 771]. The Committee once again requests the Government to take the necessary measures to ensure that an independent investigation is carried out into these allegations and to keep it informed in this regard.
  20. University of Pedagogy and Technology of
  21. Colombia (UPTC)
  22. 373. As regards subparagraph (f) of the recommendations concerning the non-hiring of the lecturer Ms Nilce Ariza by the UPTC, the Committee notes that the Government reiterates that Ms Ariza was on a fixed-term temporary contract, renewable only subject to participation in a competitive selection process. Ms Ariza did not participate in that process (these facts were corroborated during the investigation carried out by the internal disciplinary monitoring office, under file No. OCDI-461-05), and her situation is, in the Government’s view, unrelated to her status as a trade unionist.
  23. 374. As regards subparagraph (g) of the recommendations concerning the proceedings initiated against the Chairperson of ASOPROFE–UPTC, Mr Luis Bernardo Díaz Gamboa, on the grounds that he represented Ms Ariza, the Committee notes that Mr Díaz Gamboa was cleared by the disciplinary proceedings on 29 June 2006.
  24. 375. As to the new allegations made by ASOPROFE–UPTC concerning the judicial ruling ordering the reinstatement of Ms Isabel Cristina Ramos Quintero in the light of the violation of her trade union immunity (a ruling with which the university authorities have yet to comply), the Committee notes the information provided by the Government to the effect that the judicial ruling in question is still pending an appeal. The Committee requests the Government to keep it informed as to the outcome of the appeal.
  25. 376. As regards the alleged dismissal of Mr Gonzalo Bolívar, assigned to the Faculty of Law as a temporary lecturer, without lifting the trade union immunity he enjoyed by virtue of his membership of the ASOPROFE–UPTC Claims Committee, the Committee notes the Government’s statement to the effect that Mr Bolívar had a contract as a temporary lecturer, that such contracts are renewable for periods of less than one year, at the end of which time the contractual relationship ends without notice, and that the post he occupied was opened to a competition which was won by another lecturer.
  26. 377. In this regard, the Committee refers to what was indicated during the previous examination of the case, when it was stated that the very nature of fixed-term temporary contracts, such as those for temporary lecturers, dictate that they expire once their term has elapsed, without any need for judicial authorization to lift trade union immunity. Under these circumstances, for the Government, it was inappropriate to request the lifting of trade union immunity because the intention was not to dismiss a worker; the contract between employee and employer simply came to an end. Under these circumstances, the Committee will not pursue its examination of these allegations.

The Committee's recommendations

The Committee's recommendations
  1. 378. In the light of the foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
    • (a) With regard to the dismissal of eight SINDESENA trade union leaders as part of the process of restructuring SENA, noting that the Government sends information on three of the trade union leaders, the Committee requests the Government to continue to keep it informed with regard to the cases still pending regarding the lifting of the trade union immunity of the remaining five trade union leaders (Wilson Neber Arias Castillo, Edgar Barragán Pérez, Pedro Sánchez Romero, Carlos Rodríguez Pérez and Oscar Luis Mendívil Romero).
    • (b) As to SENA’s refusal to bargain collectively, the Committee once again requests the Government to take the necessary measures to ensure that, in consultation with the trade union organizations concerned, legislation is amended without delay in order to allow employees of the public administration to bargain collectively and to bring it into line with the Conventions ratified by Colombia. The Committee requests the Government to keep it informed of any developments in this regard, and reminds it that it may avail itself of the technical assistance of the Office.
    • (c) The Committee requests the Government to keep it informed of the final outcome of the disciplinary proceedings against Mr Ricardo Correa Bernal, Vice-Chairperson of the Medellín Subdirective and Secretary of the organization’s national committee.
    • (d) As to the declaration of illegality concerning a permanent assembly held by SINTRAEMCALI within EMCALI, which led to the dismissal of 45 trade union members and six union leaders:
    • (i) the Committee once again requests the Government to take the necessary measures to amend article 451 of the Substantive Labour Code, so that responsibility for declaring strikes or work stoppages illegal may be placed with an independent body which has the confidence of the parties involved, and to keep it informed of any developments in this regard;
    • (ii) the Committee expresses the firm hope that the Council of State will issue a ruling in the near future with regard to the occurrence of a work stoppage and the declaration of illegality issued by the Ministry of Social Protection in resolution No. 1696 of 2 June 2004, and trusts that the Council of State will take into account the principles set forth in the preceding paragraphs concerning the requirement for investigations and the declaration of illegal strikes to be undertaken by an independent authority. The Committee requests the Government to keep it informed in this regard;
    • (iii) as to the dismissal of 45 trade union members and six leaders for alleged participation in the work stoppage, the Committee once again requests the Government, in the light of the Council of State’s ruling, once handed down, to re-examine the situation of those dismissed and to keep it informed in this regard;
    • (iv) as to the investigation launched before the Office of the Attorney-General into the violent events that occurred, the Committee requests the Government to provide information without delay;
    • (v) as to the launch of 462 separate disciplinary proceedings and the pressure put on workers not to discuss trade union issues under threat of dismissal, the Committee once again requests the Government to take the necessary measures to ensure that an independent investigation is carried out into these allegations and to keep it informed in this regard.
    • (e) The Committee requests the Government to keep it informed of the final outcome of the appeal against the judicial ruling ordering the reinstatement of Ms Isabel Cristina Ramos Quintero.
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