Report in which the committee requests to be kept informed of development - Report No 338, November 2005

Case No 2363 (Colombia) - Complaint date: 17-JUN-04 - Closed

Allegations: the Workers’ Central Organization (CUT) alleges refusal to enter the Union of Employees and Workers in the Ministry of External Relations (UNISEMREX) on the trade union register, a disciplinary measure imposed on Ms. Luz Marina Hache Contreras, a union official from the National Association of Civil Servants and Employees in the Judicial Branch (ASONAL JUDICIAL) for participation in a strike, and refusal to negotiate a list of demands and grant union leave

712. The complaint is contained in communications from the Workers’ Central Organization (CUT) dated 18 June 2004.

1. 713. The Government sent its observations in communications dated 28 January and 5 May 2005.
2. 714. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

. The complainant’s allegations

1. 715. In its communications of 18 June 2004, the Workers’ Central Organization (CUT) alleges, firstly, that the Labour and Social Security Inspectorate, a component of the Ministry of Social Protection, refused to register the document establishing the union, the list of members of the executive board and the statutes of the Union of Employees and Workers in the Ministry of External Relations (UNISEMREX), an organization formed on 30 January 2004. According to the complainant, resolution No. 739 of 20 February 2004 rejected the request for registration on the basis that certain of its statutory provisions would contravene legislation.
2. 716. The CUT alleges, secondly, that on 17 September 2002 it convened a one-day industrial action against pension, labour and tax reform, joined by the National Association of Civil Servants and Employees in the Judicial Branch (ASONAL JUDICIAL). In carrying out this action, the members of ASONAL JUDICIAL ceased their activities. The Government, through the Ministry of Labour, declared the action to be illegal, despite the fact that throughout the day only activities which did not affect people’s liberty and security were suspended, and a minimum service was maintained to ensure that decisions affecting the freedom of persons who had been tried and detained, could be taken.
3. 717. The complainant alleges that, while the workers were carrying out their protest action, the Attorney-General arrived and ordered the workers to resume their activities, threatening them with dismissal and using violence to clear his path. In response to his attitude, union official Ms. Luz Marina Hache Contreras requested the Attorney-General to cease his demands that they leave the area, to which the Attorney-General responded that the said official no longer worked at the organization.
4. 718. On 10 October 2002, two officials from the Attorney-General’s Office filed a complaint against the union official on the grounds that she had hindered them in carrying out their duties, employing coercion to make them stop working and join the protest, not allowing them to enter the offices and verbally abusing those who succeeded in entering. The complainant organization states that, on 17 December 2003, by means of resolution No. 001436, the Office of Oversight Services of the Attorney-General’s Office brought charges against the union official. On 24 February 2004, by means of resolution No. 0011, the Office of Oversight Services, Complaints and Claims of the Attorney-General’s Office sanctioned the official with a period of sixty (60) days’ suspension and an equal period of special incapacity. An appeal was lodged against this resolution with an ad hoc Attorney-General and with the Public Prosecutor, as the Attorney-General could not act in the matter, being an interested party.
5. 719. The complainant states that, by means of resolution No. 0612 of 5 May 2004, the Deputy Public Prosecutor decided not to intervene in the appeal process, considering that due process was not affected.
6. 720. Thirdly, the complainant alleges that, on 13 November 2001, ASONAL JUDICIAL presented a list of demands but that, two years later, there had still been no response to it from the Government. Lastly, the complainant alleges that union leave has not been granted to officials to carry out their functions.
7. B. The Government’s reply
8. 721. In its communications of 28 January and 5 May 2005, the Government states, with regard to the allegations made by ASONAL JUDICIAL concerning the sanctions imposed on the union treasurer, Ms. Luz Marina Hache Contreras, that the suspension for a period of sixty (60) days and an equal period of special incapacity was not the result of ceasing activities but of conduct and behaviour which fell outside the bounds of legitimate trade union activity, and consequently outside the protective framework provided by Conventions Nos. 87 and 98. The Government states that, on 16 September 2002, members of the union ASONAL JUDICIAL carried out a day of protest in which Ms. Hache, the union treasurer, participated.
9. 722. Ms. Hache padlocked the access doors to the main parking area, thus obstructing both entry and exit and thereby curtailing the fundamental right to freedom of movement of everyone who was in the Inurbe building, which houses ten local attorney units. The conduct displayed by Ms. Hache occurred at the workplace and during the working day. The protest day did not consist of a meeting at the union’s premises, but of this type of conduct during working hours in the buildings housing the offices of the Attorney-General’s Office.
10. 723. The Government recalls that the Committee on Freedom of Association has on several occasions stated that, although holders of trade union office do not, by virtue of their position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association. The Government considers that the right to subject a civil servant whose conduct goes beyond the concept of legitimate trade union activity to a disciplinary investigation does not constitute an infringement of the “basic guarantees” in this area. Naturally, sanctioning the act of curtailing the fundamental rights of citizens, such as their freedom of movement, is not a threat to freedom of association, since the union mandate conferred on Ms. Hache does not grant her immunity in respect of these regulations, nor does it permit her to transgress them.
11. 724. Secondly, the Government recalls that the Committee on Freedom of Association has also indicated the limits placed on the exercise of freedom of association when carrying out public protests: although the right of holding trade union meetings is an essential aspect of trade union rights, the organizations concerned must observe the general provisions relating to public meetings, which are applicable to all. This principle is contained in Article 8 of Convention No. 87, which provides that workers and their organizations, like other persons or organized collectivities, shall respect the law of the land.
12. 725. The Government considers that padlocking the entry and exit doors of a public building when the building is in use is a criminal act, since such behaviour could potentially endanger the lives or safety of hundreds or thousands of innocent people, who have no connection with the reasons for the protest. This behaviour was the subject of a disciplinary investigation by the Attorney-General’s Office, which imposed sanctions against the civil servant in question through resolution No. 011 of 24 February 2004, a decision which was appealed before an ad hoc Attorney-General and the Public Prosecutor, challenging the Attorney-General for being an interested party. According to the report of the Attorney-General’s Office (which the Government attached to its reply), the Supreme Court accepted the challenge on 1 April 2004, but the Deputy Public Prosecutor did not exercise his power to overturn the decision since he considered that due process had been observed. According to the report of the Attorney-General’s Office, an action for protection of constitutional rights [tutela] has been brought against the decision.
13. 726. The Government also recalls that the Committee has stated that the right to hold trade union meetings cannot be interpreted as relieving organizations from the obligation to comply with reasonable formalities when they wish to make use of public premises. The Government states that the union did not observe any formalities before proceeding to close the building.
14. 727. The Government recalls that on one occasion when, according to the findings of a court, one of the essential reasons for the dismissal of a trade union official was that he had performed certain trade union activities in his employer’s time, using the personnel of his employer for trade union purposes and using his business position to exercise improper pressure on another employee – all this without the consent of his employer (49th Report, Case No. 213), the Committee considered that, when trade union activities are carried on in this way, 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, his legitimate trade union rights have been infringed.
15. 728. The activities carried out by Ms. Hache took place on a working day, during working hours and at the employer’s premises, in this case the Attorney-General’s Office, without the employer’s consent.
16. 729. With regard to the allegations regarding the refusal by the Labour Inspectorate to register the document establishing the union, the list of members of the executive board and the statutes of the Union of Employees and Workers in the Ministry of External Relations (UNISEMREX), the Government indicates that, by resolution No. 739 of 20 February 2004, the Ministry of Social Protection refused the registration on the grounds that the statutes are contrary to the Political Constitution and that the appeals lodged against this decision were rejected. The decision of the Ministry of Social Protection was based on the following considerations:
17. (a) section 12, paragraph 17, of the statutes, which includes among the competences of the General Assembly the carrying out of a strike ballot in the cases provided for in the law, is contrary to article 56 of the Constitution, and sections 416 and 430 of the Substantive Labour Code, which prohibit public employees from declaring a strike;
18. (b) section 18 of the statutes, which provides that, in order to be a member of the executive board, one must be of Colombian nationality and not having been sentenced for a common crime for ten years preceding the election, retains the right to organize freely entrenched in article 39 of the Constitution, with regard to nationality (section 384 of the Substantive Labour Code was declared unconstitutional by decision C-385 of 2000 and derogated from by section 9 of Act No. 584 of 2000, because it was discriminatory vis-à-vis foreign workers);
19. (c) section 232, paragraph 4, of the statutes, which refers to collective bargaining by public employees, contravenes section 416 of the Substantive Labour Code, which expressly prohibits public employees from negotiating a list of claims and concluding collective agreements;
20. (d) section 23, paragraph 13, of the statutes refers to the designation of the Commission of Complaints, where the latter has not been constituted, without taking into account that this competence does not exclusively belong to a trade union organization, not even the majority one, but pertains to all trade unions which function in an enterprise;
21. (e) section 42 of the statutes provides that, if a member is sentenced to imprisonment for crimes which are not of a political character, this will be a cause of expulsion from the trade union. This article is contrary to the right to organize freely established in article 39 of the Constitution.

C. The Committee’s conclusions

1. 730. The Committee notes that this case concerns: (1) the refusal of the Labour Inspectorate to register the document establishing the union, the list of members of the executive board and the statutes of the Union of Employees and Workers in the Ministry of External Relations (UNISEMREX) on the basis that certain provisions in the statutes would contravene legislation; (2) the imposition of two months’ suspension and an equal period of special incapacity on Ms. Luz Marina Hache Contreras, an official of ASONAL JUDICIAL, for her conduct during a strike held on 17 September 2002; (3) the refusal by the Government to negotiate the list of demands presented by ASONAL JUDICIAL in November 2001; and (4) the denial of trade union leave to members of ASONAL JUDICIAL.
2. 731. Concerning the Labour Inspectorate’s refusal to register the document establishing the union, the list of members of the executive board and the statutes of UNISEMREX on the basis that certain provisions in the statutes would contravene legislation, the Committee notes that, according to the Government, the registration was rejected by resolution No. 739 of 20 February 2004 on the grounds that the statutes were contrary to the Constitution and Colombian legislation. In particular, the Government refers to sections: 12, paragraph 17; 18; 23, paragraphs 4 and 13; and 42. According to the Government, section 12, paragraph 17, establishes the competence of the General Assembly to carry out a strike ballot, whereas public employees do not have this right, under article 56 of the Political Constitution and sections 416 and 430 of the Substantive Labour Code. The Committee recalls in this respect that the right to strike may be restricted or prohibited only for public servants exercising authority in the name of the State [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 534]. The Committee notes in this respect that both article 56 of the Constitution and the Labour Code, which prohibit strikes by public employees generally, are in violation of Convention No. 87.
3. 732. As for section 18 of the statutes, which provides that, in order to be a member of the executive board, one must be of Colombian origin and not have been sentenced for a common crime for ten years preceding the election, the Committee notes that, according to the Government, this provision restricts the right to organize. In this respect, the Committee recalls that Article 3 of Convention No. 87 establishes the right of organizations to draw up their statutes in full freedom. The same principle applies to section 42 of the statutes, which provides that, if a member is sentenced to prison, this shall be a reason for expulsion from the trade union. The Committee considers therefore that neither section 18 nor section 42 of the statutes were contrary to the provisions of the Convention and that they should not by consequence be an obstacle to the registration of the statutes in question.
4. 733. As for section 23, paragraph 4, of the statutes, which refers to collective bargaining by public employees, the Committee notes that, according to the Government, this section violates section 416 of the Substantive Labour Code, which expressly prohibits public employees from negotiating lists of claims and concluding collective agreements. In this respect, the Committee has already indicated on various occasions that, even though collective bargaining in the public service can be subject to specific modalities, the right to bargain collectively has been recognized in general for all public employees on the basis of the ratification of Conventions Nos. 151 and 154. In these conditions, the Committee requests the Government to take the necessary measures to modify the legislative provisions so that public employees can enjoy the rights flowing from the Conventions ratified by Colombia including the right to collective bargaining and the right to strike. Taking into account that the sections of the statutes which raise objections are not contrary to Convention No. 87, the Committee requests the Government to proceed without delay to the registration of the Constitution, the list of executive board members and the statutes of the Union of Employees and Workers in the Ministry of External Relations (UNISEMREX).
5. 734. Regarding the allegations concerning the sanctions of two months’ suspension and an equal period of special incapacity imposed on Ms. Luz Marina Hache Contreras for taking part in strike action on 17 September 2002, the Committee notes the information submitted by the Government, according to which, in exercising her right to strike, Ms. Hache Contreras padlocked the access doors to the main parking area of the building, which houses ten local attorney units, thereby endangering the lives and safety of the persons within the building and curtailing the freedom of movement and freedom to work of those wishing to enter or leave the building. According to the Government, this constitutes an abuse of the right to strike and is liable to sanctions. The Committee notes that the complainant organization lodged an appeal against this decision before an ad hoc Attorney-General and the Public Prosecutor, claiming that the Attorney-General was himself a party to the dispute. This claim was upheld by the Supreme Court of Justice on 1 April 2004. However, the Deputy Public Prosecutor decided not to intervene in the process, considering that due process had not been violated. The complainant organization brought an action for protection of constitutional rights [tutela] in respect of this decision. Firstly, the Committee observes that there is a discrepancy between the allegations made and the observations of the Government with regard to the reasons given for the sanctions. Secondly, the Committee notes that the information submitted by the Government does not give the result of the appeal or the tutela action brought by ASONAL JUDICIAL in respect of the decision to impose the sanctions, which would make it possible to determine the nature of the aforementioned reasons more accurately. In these circumstances, recalling that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike, and that all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed [see Digest, op. cit., paras. 598 and 599] the Committee requests the Government to inform it of the outcome of the appeal lodged in respect of the decision to impose sanctions on Ms. Luz Marina Hache Contreras and to send it a copy of the ruling.
6. 735. The Committee regrets that the Government has not sent its observations with respect to the allegations concerning the refusal of the Government to negotiate the list of demands presented by ASONAL JUDICIAL in 2001. The Committee recalls that, while some categories of public officials already enjoyed the right to collective bargaining in accordance with Convention No. 98, that right was extended to cover all public officials in general with the ratification of Convention No. 154 on 8 December 2000. This being the case, and recalling that collective bargaining in public administration allows for specific methods of application, the Committee requests the Government to take the necessary measures to ensure that the right of public officials to bargain collectively in accordance with the provisions of the Convention ratified is respected.
7. 736. With regard to the allegations concerning the refusal to grant trade union leave, and recalling that Article 6.1 of Convention No. 151, which Colombia has also ratified, states that “such facilities shall be afforded to the representatives of recognised public employees’ organisations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work”, the Committee requests the Government to take the necessary steps to ensure that trade union leaders in the public administration are able to make use of the facilities necessary to carry out their functions in accordance with Convention No. 151.

The Committee's recommendations

1. 737. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the allegations regarding the refusal by the Labour Inspectorate to register the document establishing the union, the list of members of the executive board and the statutes of the Union of Employees and Workers in the Ministry of External Relations (UNISEMREX), the Committee requests the Government to take the necessary measures to modify the legislative provisions so that public employees can enjoy the rights flowing from the Conventions ratified by Colombia including the right to collective bargaining and the right to strike. Taking into account that the sections of the statutes which raise objections are not contrary to Convention No. 87, the Committee requests the Government to proceed without delay to the registration of the Constitution, the list of executive board members and the statutes of the Union of Employees and Workers in the Ministry of External Relations (UNISEMREX).
   • (b) Regarding the allegations concerning the sanctions of two months’ suspension and an equal period of special incapacity imposed on Ms. Luz Marina Hache Contreras, the Committee requests the Government to inform it of the outcome of the appeal lodged in respect of the decision to impose sanctions on Ms. Luz Marina Hache Contreras and to send a copy of the ruling.
   • (c) With respect to the allegations concerning the refusal of the Government to negotiate the list of demands presented by ASONAL JUDICIAL in 2001, the Committee requests the Government to take the necessary measures to ensure that the right of public officials to bargain collectively is respected, in accordance with the provisions of Convention No. 154, which it has ratified.
   • (d) With regard to the allegations concerning the refusal to grant trade union leave, the Committee requests the Government to take the necessary steps to ensure that trade union leaders in the public administration are able to make use of the facilities necessary to carry out their functions in accordance with Convention No. 151.