Effect given to the recommendations of the committee and the Governing Body - Report No 349, March 2008

Case No 2469 (Colombia) - Complaint date: 09-FEB-06 - Closed

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

1. 55. The Committee last examined this case at its May–June 2007 meeting [see 346th Report, paras 396–424]. On that occasion, the Committee made the following recommendations on the issues that remained pending:
2. (a) With regard to the allegations presented by ASDESALUD relating to the refusal to grant the right to collective bargaining to public employees working at the Rafael Uribe and Uribe ESE and the failure to apply the collective agreement in force as a result of Decree No. 1750 of 2003, the Committee requests the Government:
3. (i) to take the necessary measures to ensure that, in consultation with the trade unions concerned, the legislation is amended in order to bring it into line with the Conventions ratified by Colombia, so that the public employees in question can enjoy the right to collective bargaining. The Committee requests the Government to keep it informed of any measure adopted on this matter and reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes;
4. (ii) to take the necessary measures, recalling the importance of abiding by judicial decisions, to assure respect for acquired rights as established in the collective agreement in force at the ISS, and applied at the “Rafael Uribe and Uribe” State Social Company, for the period it is in force and in accordance with the Constitutional Court judgement.
5. (b) With regard to the ASDESALUD allegations stating that the restrictions on granting trade union leave to 20 hours per month, contained in Circular No. 0005 of 2005, make it much more difficult to carry out its activities properly, given that it is an industrial trade union covering a wide area, the Committee asks the Government, in the light of Decree No. 2813, stipulating that trade union leave must be regulated while taking into account the needs of the trade union, to take the necessary measures to review Circular No. 0005 of 2005, after consultations with the trade union organizations concerned, in order to obtain a solution satisfactory to the parties.
6. (c) With respect to the disciplinary proceedings against Ms María Nubia Henao Castrillón, Ms Luz Elena Tejada Holguín and Ms Olga Araque Jaramillo for using their trade union leave, the Committee requests the Government to ensure the disciplinary measures are withdrawn and that adequate compensation is paid to them for any damage caused. It also requests the Government to ensure that trade union officials working at the Rafael Uribe and Uribe ESE can use their trade union leave, with due regard for existing and future agreements.
7. (d) With regard to the allegations presented by the CUT referring to the Government of Colombia’s failure to bargain collectively with the trade unions regarding the adoption of Act No. 909 of 23 September 2004 and its regulatory decrees on public employment and administrative posts, the Committee, observing that this is contrary to the commitments made by the Government when it ratified Conventions Nos 98, 151 and 154, refers to the principles set forth in subparagraph (a) of these recommendations. The Committee requests the Government to fulfil its obligations under these Conventions and negotiate collectively with the trade unions concerned.
8. (e) With regard to the allegations presented by the Union of Public Officials of the “Evaristo García” University Hospital ESE (SINSPUBLIC) stating that Act No. 909 of 23 September 2004 and its regulatory decrees violate the collective agreement signed in 2003 between the public authorities and the trade union, the Committee asks the Government to take the necessary measures to ensure that the collective agreement is duly applied and requests that the Government keep it informed on this matter.
9. 56. In its communications of 27 June and 4 September 2007, the Government made the following statements.
10. 57. With regard to recommendation (a), (i) concerning the need to amend the legislation in order to bring it into conformity with the Conventions ratified by Colombia, so that the public employees in question enjoy the right to collective bargaining, the Government states that currently there is no government project on this subject. It is hoped that progress can be made on this in cooperation with employers and workers. The Committee once again reminds the Government that, under Conventions Nos 98, 151 and 154 ratified by Colombia, workers in the public sector and in the central public administration must have the right to collective bargaining and requests the Government to keep it informed on any measures adopted in this respect.
11. 58. As regards recommendation (a)(ii) concerning the application of the collective agreement in force at the time of the split-off of the Rafael Uribe and Uribe State Social Company (ESE) the Government states that, according to the information from the general representative of Rafael Uribe and Uribe, in liquidation, there was strict compliance with what was prescribed in the cited decisions, awarding to each official the economic benefits accruing from the collective agreement signed between the Social Security Institute (ISS) (at that time the employer of the officials affected by the split-off) and the SINTRASEGURIDAD SOCIAL trade union, in accordance with court judgements C-314 and C-349 of 2004 and the directives issued at the time by the Ministry of Social Security. The representative indicates that all the officials were awarded the financial difference between all payments made to them during their employment relationship with the recently created ESE and the benefits established by the collective agreement, signed on 31 October 2001 and due to remain in force until 31 October 2004. The ISS had made all due payments to the officials up to the time of the split-off (25 June 2003). The ESE therefore made up the difference from the date it was created (26 June 2003) until the date of expiry of the collective agreement (31 October 2004) in the form of a “single payment”. All due payments were made to all officials, a decision of recognition was issued (against which means of legal recourse were available) and payments were made as scheduled, so that at the time the dissolution of the institute was decreed and the liquidation process begun (14 February 2007), no remuneration was owed to any ESE official. The Committee notes this information.
12. 59. As regards recommendation (b) concerning the granting of trade union leave and the restrictions thereon, the Government refers to the abovementioned representative’s statement that, with liquidation taking place, ESE Rafael Uribe and Uribe is granting trade union leave in accordance with the needs of the union. The Committee notes this information.
13. 60. With regard to recommendation (c) concerning the disciplinary proceedings against Ms María Nubia Henao Castrillón, Ms Luz Elena Tejada Holguín and Ms Olga Araque Jaramillo, the Government states that, according to the information supplied by the coordinator of internal disciplinary controls at ESE Rafael Uribe and Uribe in liquidation, verdicts of not guilty were issued at first instance in all three cases, in view of the evidence in each case. The Committee notes this information.
14. 61. As regards recommendation (e) concerning the violation of the collective agreement signed in 2003 on the basis of Act No. 909 of 23 September 2004, the Government recapitulates the origins and background of the legislation and sets forth the parameters established for entry into the administrative service. The Government points out that, in line with the Constitutional Court rulings handed down to date, it was necessary to adopt a new law to meet the new challenges facing the State. For this reason it submitted to Congress the corresponding draft law, which became Act No. 909 of 2004, currently in force. The Government indicates that account was taken in the drafting of Act No. 909 of the proposals made by the trade unions of public employees and by the heads of the public institutions.
15. 62. The Government adds that section 27 of Act No. 909 states that the administrative service is a technical staff administration system whose purpose is to guarantee the efficiency of the public administration and offer stability and equality of opportunity regarding access to and advancement in the public service. In order to achieve this objective, entry to and tenure in administrative service posts shall be based exclusively on merit, by means of selection processes in which transparency and objectivity are guaranteed, without any form of discrimination. Entry to the public sector is therefore not possible without prior participation in the respective selection process or competition, initiated by the National Civil Service Commission in accordance with the administrative service regulations.
16. 63. The Government adds that sections 5 and 6 of Act No. 61 of 1987 and section 22 of Act No. 27 of 1992 made provision for the exceptional granting of tenure to employees at national and territorial levels, respectively, thereby allowing employees occupying posts on a provisional basis to become established officials in the public administration. By means of ruling No. C-030 of 30 January 1997, the Constitutional Court declared null and void the aforementioned legal provisions which laid down the possibility of exceptional entry in the service for persons who were employed there without tenure merely on the basis of meeting conditions of equivalence between studies and experience or the completion of courses. A consequence of this declaration was that the legal provisions governing exceptional tenure (automatic establishment) would also cease to be applicable in judicial terms.
17. 64. With regard to the above, the Constitutional Court declared:
18. … no regulation may exist within our legal order which permits automatic establishment in administrative service posts since this disregards the general provisions of article 125 of the Constitution and the principles of equality and efficiency which must govern the public administration.
19. 65. The Court adds:
20. … those persons who gained tenure in the administrative service under sections 5 and 6 of Act No. 61 of 1987 and section 22 of Act No. 27 of 1992 will maintain their situation, notwithstanding the declaration of nullity …
21. However, those officials who are still employed by the administration in an administrative post but are not established therein may not apply for tenure, since in order to do so they will be obliged to undergo the corresponding selection process adopted by each national or territorial institution in order to fill posts of this nature. Consequently, as from the notification of this decision, any application for tenure on the basis of the provisions declared null and void by the present ruling will be rejected …
22. 66. The Government states that pursuant to the aforementioned ruling the National Civil Service Commission, by means of Circular No. 5000-29 dated 17 April 1997, issued the following pronouncement:
23. … The appointments of employees at the national and territorial levels occupying administrative service posts without tenure who did not submit an application for exceptional tenure before 15 February 1997 are of a temporary nature. Consequently, they may only become established in the administrative service in the usual way, namely by successfully completing a selection process and the relevant probationary period.
24. …
25. Those persons who can furnish proof of having submitted the corresponding application for tenure to any of the Civil Service Commissions or to the Ministry of Health – namely, employees of the health social security system – further to meeting the conditions for exceptional tenure have the right to remain in their posts until such time as the Civil Service Commissions take a definitive decision, pursuant to Decree No. 2611 of 1993 …
26. 67. The various judicial authorities (Constitutional Court, Council of State) have issued clear criteria with regard to the absolute unlawfulness of automatic or exceptional tenure in the administrative service, i.e. without the successful completion of the respective selection processes by employees. Hence, in Act No. 909 of 2004, although the legislature could not exclude from the competition those persons who were provisionally employed by the administration, it did not adopt any provisions making automatic entry to the service lawful, given that implementing regulations which had been declared null and void is illegal. The Government concludes that Act No. 909 is in conformity with constitutional requirements, which stipulate that entry to the public service must be on the basis of merit established through open public selection processes, in which equality of opportunity is guaranteed for candidates who meet the requirements of the posts.
27. 68. In the particular case of the present allegations, the Government points out with regard to non-observance of section 24 (employment relationships) of the collective agreement signed with the University Hospital that Act No. 909 of 2004 is binding and therefore public servants are bound to comply with it on pain of disciplinary penalties.
28. 69. The Government points out that the head of human resources of the Evaristo Garcia University Hospital said that, as regards the specific case of the Evaristo Garcia University Hospital, in some cases there might have been omissions on the part of previous administrations in processing various documents relating to exceptional tenure in the administrative service, but there was no actual proof. This means that, should a public servant of the hospital or trade union possess concrete evidence of the general claim made in the complaint under consideration, he would have to submit it and have recourse to legal remedies.
29. 70. In its communication of 9 January 2008, the trade union claims that the Government has not taken account of the Committee’s recommendations and that this implies that many of the current employees of Evaristo Garcia University Hospital ESE will be dismissed.
30. 71. In this respect, the Committee observes that, in line with its previous examination of the case, section 24 of the collective agreement stated that, in conformity with the law, the Evaristo Garcia University Hospital will continue to maintain for an indefinite period the employment relationship of all public employees whose appointments and contracts were confirmed at the time of signature of the present collective agreement. The Committee is of the opinion that, in the present case, since a collective agreement was signed, which regulates the issue of temporary workers, the situation is different from that of other public institutions where there was no collective agreement for settling such issues. The Committee recalls that agreements should be binding on the parties [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 939]. The Committee therefore requests the Government to take the necessary measures to ensure that the collective agreement signed between the public administration and SINSPUBLIC is duly applied and that, during the period of validity of the 2003 collective agreement, stability is guaranteed for the workers who were employed on a temporary basis and fulfilled the conditions of section 24 of the collective agreement. The Committee requests the Government to keep it informed in this respect.