Definitive Report - Report No 397, March 2022

Case No 3223 (Colombia) - Complaint date: 01-JUN-16 - Closed

Allegations: The complainants report the refusal of a company to engage in collective bargaining in violation of ILO Conventions Nos 151 and 154

1. 288. The complaint is contained in a communication dated 1 June 2016 presented by the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), representing trade union associations the Union of Civil Servants at EMCALI EICE ESP (SIEMCALI) and the Union of Workers and Employees of State Public Service Companies and other State Entities (SINTRASERVIP)
2. 289. The Government sent its observations in communications dated 15 August 2017, 5 November 2018 and 1 February 2022.
3. 290. 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 complainants’ allegations

1. 291. In a communication dated 1 June 2016, the complainants report the refusal of EMCALI EICE ESP, a company that provides domestic public utilities, decentralized from the municipal authority, (hereafter “the company”), to engage in collective bargaining with public employees. They allege that in February 2016 the trade union associations submitted a list of demands to the general management of the company, with a view to reaching a collective agreement that would overcome labour-related inequalities, given the erroneous classification of the so-called “public employees” in posts as directors, heads of department, head of the disciplinary control office, special assistant and coordinators, when according to the law and to rulings from the high courts, these are official workers. Although meetings were held on the matter, the complainants allege that there was never any negotiation, since the company representatives did not consider said meetings to form part of the scope of Decree No. 160 of 2014, which regulates collective bargaining in the public sector, since the public employees are in high-level political, supervisory or managerial roles, whose functions involve government, representation, authority or institutional management powers, the exercise of which affects the adoption of public policies (article 2(a) of the Decree). The complainants on the other hand consider that the public employees represented at the negotiation do not exercise those powers and that the only ones entitled to do such work in the company are the director general, area managers, strategic business unit directors and the executive board.
2. 292. The organizations state that the company has also not complied with the agreement signed in November 2015 in the framework of the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT), relating to a 2015 list of grievances. In addition, they also report that there are imminent measures being taken by the company to weaken the trade unions, counteract the existence of union immunity, encourage members to revoke their membership and order “relocations”.

B. The Government’s reply

1. 293. In its communication dated 15 August 2017, the Government submits the reply of the company, which indicates that: (i) … it is an industrial and commercial State company that provides domestic public utilities, and as a result of what is set out in the regulation, specifically Decree No. 3135 of 1968, its staff is comprised of both official workers, who are bound by an employment contract, and public employees; (ii) the majority of service providers in the company are official workers, which is the norm, and there are also public employees, in exceptional cases, in accordance with the provisions of article 5 of the same Decree, which states that: “people who provide their services in the Ministries; administrative departments, supervisory authorities and public establishments are public employees; however, public works construction and maintenance workers are official workers.”; (iii) legally, it is evident that the company’s public employees are freely appointed and dismissed, in positions of trust and control, at the management level among the staff, representatives of the employer, and their relationship is legal and in accordance with the regulations. This is distinct from the status of official workers, a classification that, according to the organizational structure of the company, includes the professional, technical and assistant levels, who, in accordance with the legal provisions, have been given the opportunity to negotiate their working conditions in terms of salary and benefits, which are finalized through collective labour agreements. There are currently 15 trade unions in the company and there are two collective agreements in force; (iv) with regard to the negotiation with public employees, several trade unions (including SIEMCALI and SINTRASERVIP) all represented by officials who hold that status and form part of the management level of the company, submitted a list of demands based on Decree No. 160 of 2014; and (v) in spite of the restriction on negotiating in paragraph 2(a) of that same Decree, due to the union representatives being management level public employees, the company proceeded in good faith to listen to, review and analyse their demands.
2. 294. The Government goes on to state that: (i) the internal justice mechanism has discussed the matter of public employees in the company on two occasions, and has found that classification to be in accordance with the law, which means that the public employees in the company have positions of leadership or trust; (ii) there is no evidence that a complaint has been made to the Ministry of Labour for any supposed refusal to negotiate, which would establish whether the company has refused, as stated in the complaint; and (iii) there has been no refusal to negotiate on the part of the company, even though it considers that the trade unions in question, represented by officials who hold the status of public employees and form part of the management level of the company, are covered by the implementation exclusions in Decree No. 160 of 2014. The company sat down to listen to the trade unions and explained to them why they had not reached an agreement on what the unions had requested.
3. 295. In its communication of 5 November 2018, the Government indicated that the disagreements presented in the complaint would be addressed around the negotiation and coordination table, as agreed by the parties at CETCOIT.
4. 296. In its communication dated 1 February 2022, continuing to refer to the company’s observations, even though the list of demands that the public employees presented in February 2016 was not legally relevant, the Government reiterates that the company responded to the call from the trade unions with public employee members, establishing a working group in which both parties expressed their approaches to the implementation of the aforementioned Decree, the methodology for the trade unions to express their wishes and the position of the company to each of them, as reflected in official record No. 4 of 8 April 2016, filed with the Ministry of Labour, which ended this process. The Government specifies that, with regard to the grading of salaries, an agreement was reached and signed in the framework of the CETCOIT in October 2016, and as a result the Government observes that the company indicates that it has been willing to consider employment aspirations.

C. The Committee’s conclusions

1. 297. The Committee observes that the present complaint relates to the alleged refusal of an industrial and commercial State company (that provides domestic public utilities) to engage in collective bargaining regarding the working conditions of its public employees, considering that they do not have a right to collective bargaining because they are part of the management level of the company and fall under the exceptions laid out in Decree No. 160 of 5 February 2014 – which regulates collective bargaining in the public sector. The Committee takes note that, for their part, the complainant organizations consider that the aforementioned categories of staff are official workers and that the alleged refusal to negotiate contravenes the ILO Conventions ratified by Colombia.
2. 298. The Committee recalls that Colombia has ratified Conventions Nos. 98, 151 and 154 and that as a result public sector workers should have the right to collective bargaining, even though collective bargaining in the public service can have special modalities of application.
3. 299. The Committee takes note that, according to the Government: (i) a distinction is made in the national legislation between official workers and public employees (the former are bound by a contract and can bargain collectively, while the latter are bound by statute); and (ii) with regard to the public employees, there are restrictions on the exercise of their right to collective bargaining, based on article 2(a) of Decree No. 160 of 2014.
4. 300. The Committee observes that this this decree, which repealed Decree No. 1092 of 2012, has broadened the scope of collective bargaining in the public sector, both materially and in terms of personnel, by recognizing the collective bargaining rights of public employees.
5. 301. At the same time the Committee observes that, according to article 2(a) “This decree shall apply to public employees in all public sector entities and bodies, with the exception of: (a) public employees in high-level political, supervisory or managerial roles, whose functions involve government, representation, authority or institutional management powers, the exercise of which affects the adoption of public policies”.
6. 302. The Committee observes that the relevant aspects of the present complaint essentially revolve around a legal question relating to a classification of posts. The Government and the company both consider that the public employees in that structure (directors, heads of department, head of the disciplinary control office, special assistant and coordinators) hold a managerial rank, which excludes them from the bargaining framework as a result of the 2014 Decree. On the other hand, the complainants consider that the categories in question are not management level, but that they are official workers, and that they should therefore be able to participate in the collective bargaining. The Committee underscores that it is not within its remit to adopt a decision on the classification of certain public servants as official workers or public employees and that its responsibility is solely to ensure that the principles of freedom of association are fulfilled in the public sector (see Case No. 3091, 391st report).
7. 303. The Committee recalls that Conventions Nos 151 and 154 have a broad scope, with very few exceptions, such as in the case of high-level managerial officials, as reflected in Decree No. 160, which permits the majority of public employees to negotiate their own working conditions. In this regard, it is for national legislation to determine, by virtue of paragraph 2 of article 1 of Convention No. 151, the extent to which the guarantees provided for in the Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature. In addition, the Committee recalls that, in the context of a previous case relating to the same company which dealt with the right to collective bargaining of people working as heads of department, among other things, the Government had underscored that as a result of Decree No. 160 public employees were able to sign agreements with the company (see case No. 3091, 391st Report, paras 163 and 166). Lastly, the Committee observes that, in the framework of the dialogue facilitated by CETCOIT in October 2016, the parties reached an agreement to increase the salaries of public employees, although the company specifies that this agreement was reached on the sidelines of the formal collective bargaining process.
8. 304. In these circumstances, while it observes that it does not have details of exactly how many workers in the company are excluded from the collective bargaining or of the exact functions of the categories concerned, the Committee requests the Government to take the necessary measures to ensure that the determination of the public employees in the company who have the right to collective bargaining is done in accordance with the scope of Decree No. 160, implemented in the light of Conventions Nos 151 and 154.
9. 305. The Committee also requests the Government to continue taking all possible measures to encourage the company and the complainant organizations to improve the climate of dialogue and mutual respect and invites them to take full advantage of the existing opportunities for dialogue at the national level.
10. 306. With regard to the allegations relating to the imminent measures being taken by the company to weaken the trade unions, counteract the existence of union immunity, encourage members to revoke their membership and order “relocations”, the Committee observes that the complainants did not submit information or evidence relating to such measures. On that basis, the Committee will not pursue its examination of this allegation.

The Committee’s recommendations

1. 307. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures to ensure that the determination of the public employees in the company who have the right to collective bargaining is done in accordance with the scope of Decree No. 160, implemented in the light of ILO Conventions Nos 151 and 154.
   • (b) The Committee requests the Government to do everything in its power to encourage the company and the complainant organizations to improve the climate of dialogue and mutual respect and invites them to take full advantage of the existing opportunities for dialogue at the national level.
   • (c) The Committee considers that this case does not call for further examination and is closed.