Definitive Report - Report No 370, October 2013

Case No 2950 (Colombia) - Complaint date: 30-MAR-12 - Closed

Allegations: the complainant organization alleges that trade union members employed by the Girón-Santander township were dismissed in violation of the provisions of a collective agreement

1. 319. The complaint is contained in a communication of March 2012 submitted by the Single Confederation of Workers (CUT).
2. 320. The Government sent its observations in a communication dated 30 January 2013.
3. 321. 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).

A. The complainant’s allegations

1. 322. The complainant organization alleges that 12 employees of the township of Girón-Santander, namely Marcos Fidel Báez Celis, Ambrosio Díaz Rodríguez, Carlos José Martínez Ramírez, Víctor Manuel Vargas Galvis, Luis Hernando Viviescas Parra, Jorge Pérez, Reinaldo Vega Serrano, Luis José Ortiz Carreño, Jorge Enrique Vargas González, Gustavo Mantilla Mendoza, Hernán Rueda García and Ernesto Parra Mantilla, all being members of the Union of Public Service Employees for the township of Girón-Santander, an affiliate of the CUT, were dismissed on 15 February 2001 in violation of the collective agreement in force and of the principles of freedom of association and collective bargaining.
2. 323. The complainant organization states that all the workers dismissed by the municipal authority were trade union members, and for that reason they ought to have enjoyed enhanced protection. It adds that the collective agreement in force stipulated that the Substantive Labour Code (Código Sustantivo de Trabajo) applied to employees of the township and accordingly, under the provisions of the Code, the dismissal of the 12 workers should have been authorized by the Ministry of Labour. In the absence of such authorization, the workers were entitled to be re-employed.
3. 324. The complainant organization adds that the trade union filed a complaint with the labour inspectorate, and on 26 April 2001, the Ministry of Labour and Social Security awarded a penalty against the township for violating the collective agreement. The dismissed workers also applied to the courts for reinstatement, but their application was rejected by the various judicial authorities, and the protection proceedings initiated subsequently also failed.

B. Reply from the Government

1. 325. In a communication dated 30 January 2013, the Government states that the dismissals which are the subject of the complaint had taken place in the context of a restructuring process prompted for financial and administrative reasons by the territorial authority, and that the individuals mentioned in the complaint had been properly compensated. It insists that the termination of the employment contracts had not been intended to undermine freedom of association, and states that the complainant organization nowhere argues that the dismissals had been an anti-trade union measure, and moreover, that the Union of Public Service Employees of the township of Girón-Santander had decided not to take part in the complaint. On that basis, and in accordance with paragraph 1079 of the Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006 the Government considers that, in the absence of anti-union discrimination, the Committee is not competent to make a decision on this case of administrative restructuring.
2. 326. As for the attitude of the Ministry of Labour towards this case, the Government states that the coordinator of the Inspection and Monitoring Team had decided to revoke the sanction initially imposed on the municipal authority of Girón-Santander for violating the applicable collective agreement. The Government adds that the Colombian courts have considered the complainants’ claims, ruling against them at every level of jurisdiction.

C. The Committee’s conclusions

1. 327. The Committee notes that this case relates to the dismissal in 2001 of 12 employees of the township of Girón-Santander who were members of the Union of Public Service Employees of the township, in the context of a process of administrative restructuring. The Committee notes the allegations of the complainant organization that there had been a failure to observe the enhanced protection due by reason of the trade union membership of the dismissed workers, and a violation of the collective agreement in force, providing that the rules of the Substantive Labour Code applied to employees of the township, which in turn would have required the prior administrative authorization of the Ministry of Labour for the collective dismissal of the 12 workers. No such authorization was sought.
2. 328. The Committee notes the Government’s observations that the dismissals of the 12 workers occurred for financial and organizational reasons in the context of an administrative restructuring, and that at no time did the complainant organization allege that the severing of the employment contracts was an anti-union act. The Government considers that in the absence of any anti-union discrimination, this case of administrative restructuring falls outside the competence of the Committee. Finally, the Committee notes the Government’s statements concerning the rejection of the claims of the dismissed workers by the Colombian courts at every level.
3. 329. With regard to the alleged lack of protection of the freedom of association of the dismissed workers by the municipal authority of Girón-Santander in the context of a restructuring process, the Committee recalls that it is not called upon to pronounce upon the question of the breaking of a contract of employment by dismissal, except in cases in which the provisions on dismissal imply anti-union discrimination [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paragraph 779] and similarly, that it can examine allegations concerning restructuring processes, whether or not they imply redundancies or the transfer from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions [see Digest, op. cit., paragraph 1079].
4. 330. In the present case, the Committee notes that although the complainant organization briefly remarks that the only workers dismissed were trade union members, the complaint does not allege that the dismissals were of an anti-union character, nor does it offer any specific evidence in this regard. The Committee notes that neither was there any allegation that the dismissals were of an anti-union character in the various court actions initiated by the dismissed workers, who according to the documents available did not hold leadership positions in their trade union. On that basis, the Committee considers that the allegation that the freedom of association of the dismissed workers was insufficiently protected does not require further examination.
5. 331. As regards the alleged violation of the collective agreement in force, which according to the complainant organization stipulated that the Substantive Labour Code should apply in its entirety, including in the matter of dismissal, to the employees of the township, the Committee notes that both the first and second instance courts and the Employment Appeals Chamber (Sala de Casación Laboral) of the Supreme Court rejected the claims of the dismissed workers, the Appeals Chamber stating in its judgment that “even if it is established that public employees may in certain specific areas be governed by statutory provisions adopted for private employees, public employees cannot decide via agreement with their employers to apply such a legal regime to themselves in its entirety, since that would be tantamount to denying the legal character ineluctably conferred on them by law”. In these circumstances, the Committee considers that this case does not call for further examination.

The Committee’s recommendation

1. 332. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not require further examination.