Definitive Report - Report No 401, March 2023

Case No 3329 (Colombia) - Complaint date: 02-APR-18 - Closed

Allegations: The complainant organizations allege that, in the context of a restructuring process, a public transport enterprise carried out a series of discriminatory and anti-union acts

1. 363. The complaint is contained in a communication dated 2 April 2018 from the Confederation of Workers of Colombia (CTC) and the Union of Public Employees of the Cúcuta Transport Terminal (SINDEPCENTRAL).
2. 364. The Government of Colombia sent its observations on the allegations in two communications dated 31 January 2019 and 19 January 2023.
3. 365. 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. 366. In their communication of 2 April 2018, the complainants allege that the Cúcuta Transport Terminal (hereinafter: “the public enterprise”) committed acts which violated the right to freedom of association and collective bargaining of workers belonging to the Union of Public Employees of the Cúcuta Transport Terminal (SINDEPCENTRAL), the Union of Public Workers and Employees of the Passenger Road Transport Enterprises and Terminals of Colombia (SINTRATERCOL) and SINECTEC, including the implementation of administrative restructuring in July 2017 in order to make staffing changes without prior consultation of the trade unions, thereby violating the labour agreements concluded between the public enterprise and SINDEPCENTRAL; as well as the application to lift the trade union immunity of all leaders of the three unions.
2. 367. The complainants assert that such acts by the public enterprise were aimed at dismantling and eliminating SINDEPCENTRAL, SINTRATERCOL and SINECTEC. In particular, the complainants state that these acts resulted in the three unions being dismantled through the abolition of the posts of all the union officers, leaving the unions without leadership. Moreover, the complainants state that the unions were left without the number of members required by law to enable them to exist (at least 25 members), thereby preventing and obstructing the free exercise of trade union activity. The complainants indicate that SINDEPCENTRAL is an enterprise union which was legally constituted on 30 December 2004 and they provide a copy of the certificate of modification of the SINDEPCENTRAL executive committee drawn up by the Labour and Social Security Inspectorate on 27 July 2015, recording that six of the officials whose posts were abolished formed part of the SINDEPCENTRAL executive committee.
3. 368. The complainants also allege that the administrative restructuring carried out by the public enterprise without prior consultation of the unions in July 2017: (i) disregarded the labour agreements concluded between the public enterprise and SINDEPCENTRAL, in particular the collective agreement in force approved by Resolution No. 221 of 25 May 2017, which provides that “… the participation of union delegates in processes that involve staffing changes shall be guaranteed …”; (ii) selectively abolished the posts of the whole leadership of the three unions with the aim of eliminating those unions; (iii) was contrary to the provisions of the national legislation and international labour standards, including the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Workers’ Representatives Recommendation, 1971 (No. 143), concerning the right of association and negotiation and other union freedoms in matters relating to reinstatement, relocation and continuity of the posts of public servants; and (iv) was illegal, since it occurred without any favourable technical opinion from the National Civil Service Department, which regulates administrative career rights and assists public servants who are trade unionists.
4. 369. The complainants maintain that as a result of the elimination of various posts as part of the administrative restructuring, the public enterprise requested the lifting of the union immunity of 21 officers of the SINDEPCENTRAL, SINTRATERCOL and SINECTEC unions. The complainants indicate that the public enterprise established some temporary posts pending the lifting of the immunity of the union leaders. The complainants attach copies of the agreements and resolutions issued by the board of the public enterprise in July 2017, which show that previous staffing levels totalled 74 posts and new staff numbers were reduced to 49 posts plus 21 temporary jobs corresponding to all the public officials who had union immunity and whose posts were automatically abolished from the time that the ruling authorizing union immunity to be lifted was enforced.

B. The Government’s reply

1. 370. By a communication dated 31 January 2019, the Government forwards the observations of the public enterprise, as well as its own reply to the complainant organizations’ allegations.
2. 371. The public enterprise states, with regard to the administrative restructuring for making staffing changes, that it strictly complied with the regulations governing public service employment and the right to freedom of association, since the Confederation of Public Servants and Public Services of Colombia (CSPC) supported the process, thereby guaranteeing the right of representation of the public employees who were union members. Furthermore, the public enterprise attaches a copy of the technical report produced in June 2017, which showed that the revenue of the enterprise had been decreasing for a number of years, resulting in “a high degree of economic insolvency”, in particular from 2015 onwards as a result of the border closure which restricted the movement of passengers to and from the Bolivarian Republic of Venezuela, and that the expenditure of the enterprise exceeded its revenue. The technical report also indicated that most of the expenditure (77.2 per cent) related to staff costs, it concluded that staff numbers were unsustainable and needed to be reduced, and it recommended the elimination of 21 administrative auxiliary posts which would not affect the provision of services by the public enterprise; these posts were occupied by the trade union leaders.
3. 372. With respect to the lifting of trade union immunity and the authorization to dismiss the union leaders, the public enterprise provides a status report, which shows that 19 of the workers affected by the administrative restructuring appealed against rulings which allowed union immunity to be lifted. Between19 and 24 September 2018, the High Court of Cúcuta ruled on this matter and upheld the decisions to lift the immunity of these workers. In addition, according to the above-mentioned report, one of the workers affected resigned from the union during the special hearing for the lifting of immunity and one worker resigned from his post in the public enterprise. Hence, in terminating employment in both these cases, the public enterprise had no need to obtain authorization to lift union immunity.
4. 373. With regard to the termination of employment of the 21 trade union leaders, the public enterprise states that: (i) one official was incorporated in the public enterprise as a result of a vacancy and measures were taken with the National Civil Service Commission (CNSC) to reinstate nine officials in the administrative career branch, of whom one was reinstated in the Government of Norte de Santander and four were reinstated in the Municipal Authority of Cúcuta, while the application for the reinstatement of another four officials is being processed with the CNSC; (ii) five officials opted for compensation and were withdrawn from the public service; and (iii) the employment of four officials with temporary status was terminated further to the abolition of their posts, since they had no career-related rights. The public enterprise provides a list of 19 workers who were terminated by the public enterprise as a result of the administrative restructuring and who were members of the SINDEPCENTRAL, SINTRATERCOL, SINECTEC and FETRALTRANORTE-FENASER unions.
5. 374. The Government’s reply to the complainants’ allegations is set out below. With regard to the process of administrative restructuring of the public enterprise, the Government indicates that: (i) the process was carried out in conformity with the procedure required by law, which includes the issuing of a series of administrative acts and the carrying out of a technical study, which highlighted the need to reduce staffing from 74 to 49 posts in order to adjust to the economic reality of the public enterprise, which was seriously jeopardized by its drop in revenue as a result of the border closure in 2015; (ii) the purpose of the restructuring was to ensure the financial sustainability of the public enterprise and the adequate provision of the services for which it was responsible; and (iii) restructuring is within the power and public functions of the State and can occur for economic reasons, among others, and on occasion can lead to the dissolution of trade unions because of the decrease in their membership, without this constituting a violation of the right of freedom of association if the restructuring process has not been carried out for the purpose of, or as a result of, anti-union activities, as indicated in Constitutional Court ruling No. 793 of 27 July 2001.
6. 375. With regard to the career officials whose posts were abolished as a result of the administrative restructuring, the Government states that they had the possibility of choosing between compensation or reinstatement in identical or equivalent posts. In this regard, the Government indicates that some officials opted for reinstatement, including some who had already been relocated by the CNSC in vacant posts within the Government of Norte de Santander and the Municipal Authority of Cúcuta, while others decided to opt for compensation. With regard to the officials who had temporary status, the Government states that they had no career-related rights and so their employment was terminated when their posts were abolished. In this regard, the Government refers to Constitutional Court ruling No. 1083/12 of 2012 relating to the termination of this category of officials, which states that: “… provisional posts are not equivalent to administrative career posts, and hence the rights deriving from the administrative career are not applicable to the former, since persons who are employed on a provisional basis have not fulfilled all the requirements required by the Constitution and the law to enjoy such benefits …”.
7. 376. Lastly, the Government states that the complainants do not provide conclusive evidence that acts contrary to freedom of association occurred during the administrative restructuring. The Government also indicates that neither the officials affected nor the trade unions provide evidence of having had recourse to the national judicial authorities to challenge, in particular, the allegedly anti-union character of the administrative restructuring. Hence the Government denies that there was any violation of Conventions Nos 87 and 98 by the public enterprise, and also emphasizes that there was no restriction placed on the right of workers to organize, as evidenced by the existence, prior to the administrative restructuring, of three unions in one public enterprise which had 74 officials, as well as the fact that the latter were able to conclude collective agreements with the public enterprise.
8. 377. By a communication of 19 January 2023 , the Government provides additional information in relation to the present case. The Government indicates that the public enterprise currently has 47 officials, of whom 27 are SINTRATERCOL members. Moreover, while recognizing the importance of open consultations with the trade unions in the context of restructuring or staff reduction programmes, the Government states that the administrative restructuring process was supported by the CSPC and indicates that it is planned to analyse the possibility of issuing an instrument, in conjunction with the Public Service Administrative Department, reminding public institutions of the need to promote consultations with the unions in cases of administrative restructuring or staff reduction programmes, guaranteeing the rights of all workers.

C. The Committee’s conclusions

1. 378. The Committee observes in the present case that the complainant organizations allege a series of discriminatory and anti-union acts by a public transport enterprise, including the implementation of administrative restructuring in July 2017 without prior consultation of the trade unions, thereby failing to comply with agreements concluded between the public enterprise and SINDEPCENTRAL, as well as the elimination of the posts of all the officers of SINDEPCENTRAL, SINTRATERCOL and SINECTEC, which reportedly brought an end to the existence of these unions. The Committee notes that, for their part, the public enterprise and the Government assert that the CSPC union confederation supported the administrative restructuring process, thereby ensuring the representation of the public employees who were union members. The Committee also notes that both the public enterprise and the Government state that the administrative restructuring was carried out in accordance with the procedure established in the legislation. The Committee further notes that the Government denies the alleged anti-union character of the administrative restructuring and points to the existence of a technical report which demonstrated the economic grounds for restructuring and emphasizes that the complainants do not provide details of any judicial proceedings to denounce the anti-union character of the restructuring and of the resulting terminations of employment.
2. 379. The Committee notes the complainants’ allegations concerning the failure of the public enterprise to comply with the collective agreement in force concluded with SINDEPCENTRAL, in that it did not consult the trade unions prior to the implementation of the administrative restructuring. While noting the general indication by the public enterprise and the Government concerning support from the CSPC during the administrative restructuring process, the Committee observes that the collective agreement in force approved by Resolution No. 221 of 25 May 2017 established the requirement to ensure the participation of SINDEPCENTRAL delegates in processes that involved staffing changes. In this regard, the Committee observes that it has not received any information regarding the affiliation of SINDEPCENTRAL to the CSPC or any indication that the union mandated the CSPC to represent it in the restructuring process. In light of the above, the Committee recalls that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1336].
3. 380. The Committee also notes the complainants’ allegations that the purpose of the administrative restructuring undertaken by the public enterprise was to eliminate SINDEPCENTRAL, SINTRATERCOL and SINECTEC. The complainants assert that the public enterprise called for the lifting of the trade union immunity of 21 officers from the three unions as a result of the abolition of their posts in the restructuring, thereby leaving the three unions without leadership and without the requisite number of members to exist. With regard to the termination of the employment of the union leaders, the Committee notes the indications in the Government’s observations that the workers affected by the restructuring had the possibility of opting for reinstatement in identical or equivalent posts or for compensation. In this regard, the Committee observes that six workers had already been reinstated and the reinstatement of another four workers in identical or equivalent posts was under way, while five workers had opted for compensation and five had had their employment terminated because of the abolition of their posts, since they were civil servants with temporary status.
4. 381. The Committee recalls that, since its mandate is to examine allegations of violations of trade union rights, it can give its views on restructuring programmes, whether or not they imply redundancies, only in so far as they might have given rise to acts of discrimination or interference against trade unions [see Compilation, para. 1553]. The Committee observes in this regard that the details supplied by the complainants, the public enterprise and the Government reveal that: (i) the restructuring affected 25 workers, of whom 21 were union leaders; (ii) according to the technical report supplied by the public enterprise, the latter was facing a difficult financial situation, as its expenditure was greater than its revenue, with staff costs accounting for 77.2 per cent of expenditure in 2016, and the elimination of the 21 auxiliary posts occupied by the union leaders fulfilled the objective of not affecting the provision of services by the public transport enterprise; (iii) the union leaders affected by the restructuring who were career civil servants had the possibility of opting for reinstatement in identical or equivalent posts or for compensation, and the majority of them were reinstated or in the process of being reinstated; (iv) at present, there are 47 civil servants in the public enterprise, of whom 27 are members of SINTRATERCOL.
5. 382. With regard to the Government’s indication that the complainants have not demonstrated that they challenged the supposed anti-union character of the restructuring vis-à-vis the judicial authorities, the Committee observes that the public enterprise supplies data on the procedures for lifting the immunity of the union leaders affected by the restructuring and that these data show that: (i) 19 union officers appealed against the first-instance decisions authorizing the lifting of union immunity; and (ii) in these cases, the authorization of the lifting of immunity was upheld at second instance, though the Committee does not have the text of these rulings.
6. 383. In light of the above, the Committee notes that although the abolition of posts in the public enterprise, undertaken in a context of economic difficulties, mainly affected union officers, it does not have any information that would enable it to conclude that anti-union discrimination took place. Trusting that the judicial proceedings for lifting union immunity examined this issue exhaustively, the Committee will not pursue its examination of this allegation. Also trusting that the pending proceedings for the reinstatement of the union leaders who are career civil servants will be concluded in the very near future, ensuring that they are assigned to identical or equivalent posts, the Committee considers that this case is closed and does not call for further examination.

The Committee’s recommendations

1. 384. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that the proceedings for the reinstatement of career civil servants which were pending will be concluded in the very near future, and that their reinstatement in identical or equivalent posts will be guaranteed.
   • (b) The Committee also trust that the Government will ensure compliance with collective agreements in public enterprises.
   • (c) The Committee considers that this case is closed and does not call for further examination.