Informe provisional - Informe núm. 333, Marzo 2004

Caso núm. 2226 (Colombia) - Fecha de presentación de la queja:: 22-OCT-02 - Cerrado

Allegations: The complainants allege the default on a collective agreement concluded between the Ministry of Labour and the Social Security Institute with SINTRASEGURIDADSOCIAL, dismissals in conjunction with successive restructuring at the San Vicente de Paul Hospital of Caldas-Antioquia, the dismissal of the entire executive committee of the Trade Union Association of Workers and Public Officials in the areas of Health, Integral Social Security and Complimentary Services of Colombia (ANTHOC) without judicial authorization, anti-union harassment against a trade union leader of SINDICIENAGA in the Municipality of Ciénaga, Department of Magdalena, the withholding of trade union fees and the dismissal of 38 members, alleged by UTRADEC

1. 487. The Committee last examined this case at its May-June 2003 meeting, at which time it submitted an interim report to the Governing Body [see 331st Report, paras. 291-307, approved by the Governing Body at its 287th Session]. The Social Security Workers’ Union (SINTRASEGURIDADSOCIAL) submitted new allegations in communications dated 22 April and 24 June 2003.
2. 488. The Government sent its observations in communications dated 28 May, 25 June, 4 July and 8 September 2003.
3. 489. 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. Previous examination of the case

1. 490. The Committee examined this case, relating to the default on a collective agreement, anti-union dismissals and harassment and the withholding of trade union dues, at its May-June 2003 meeting, where it made the following recommendations [see 331st Report, para. 307]:
   • (a) The Committee requests the Government to take steps to ensure that the investigation initiated by the territorial directorate of Antioquia is completed without delay and, if it is found that there was no judicial authorization to dismiss the members of the executive committee of ANTHOC, that the dismissed officials are reinstated in their jobs with payment of back wages. The Committee requests the Government to keep it informed in this respect.
   • (b) Concerning the alleged default on the collective agreement concluded between the Ministry of Labour and Social Security and the Social Security Institute with SINTRASEGURIDADSOCIAL, and the suspension of 5,000 workers with possible dismissal, the Committee notes that the administrative authorities have initiated an investigation and that, as part of it, a conciliation process was begun. The Committee stresses the importance of the parties attending hearings convened by the administrative authority in order to reach an agreement satisfactory to both sides as soon as possible. The Committee requests the Government to take steps to ensure that the investigation covers all aspects of the allegations and that it is promptly completed. The Committee requests the Government to keep it informed in this respect.
   • (c) With regard to the allegations submitted by UTRADEC concerning the anti-union persecution of María Teresa Romero Constante, president of SINDICIENAGA, by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga, Department of Magdalena, who refused to negotiate with her in particular, and issued threats to make her leave the trade union, the dismissal of 38 trade union members, the default on the collective agreement as regards the payment of travelling expenses, and the withholding of trade union fees, the Committee urges the Government to send its observations without delay.
   • (d) With regard to the allegations presented by CUT relative to the dismissal without suspension of trade union immunity and other anti-union acts against Gloria Castaño Valencia, the Committee requests the Government to transmit its observations in this respect.

B. New allegations

1. 491. In communications dated 22 April and 24 June 2003, the Social Security Workers’ Union (SINTRASEGURIDADSOCIAL) states that, in March, the Government approved CONPES document No. 3219 on the modernization of the Social Security Institute, which contains mistakes and serious misunderstandings in its analysis. This document establishes an adjustment policy that is based on the elimination of the collective labour agreement before its expiry, the division of the company into various independent units, the liquidation and sale of workplaces and the introduction of management and administration models through the contracting out of services.
2. 492. According to the complainant organization, the Government maligns the workers and accuses the collective agreement and the trade union of being responsible for the institutional crisis. It threatens to use the extraordinary powers at the disposal of the president in order to change the legal nature of the Institute and to dismiss thousands of workers.
3. 493. Finally, the complainant organization alleges a lack of guarantees in the exercise of trade union duties, disciplinary proceedings against trade union officials for their participation in information meetings, denial of trade union leave to carry out trade union activities, harassment, intimidation and threats against trade union officials and delegates.

C. The Government’s reply

1. 494. In communications dated 28 May and 8 September 2003, the Government indicates, with regard to the allegations relating to the dismissal of 150 workers and the entire executive committee of ANTHOC at the San Vicente de Paul Hospital of Caldas-Antioquia, the territorial directorate of Antioquia began a number of administrative investigations that concluded with the following decisions:
   • - Decision No. 0394 of 20 February 2003, which determined that the Ministry of Labour and Social Security lacked competency to decide on an alleged violation of trade union immunity, and that this issue should be decided by the ordinary courts, in accordance with article 2 of Act No. 712 of 2001.
   • - Decision No. 0402 of 20 February 2003, which determined lack of competency to decide on the collective dismissals. This decision is final as no appeals for reversal of decision or motions for appeal were lodged.
   • - Decision No. 0494 of 27 March 2003, which determined lack of competency to decide on an alleged violation of the right of association and collective bargaining. A motion for appeal was lodged and is currently under way. The Government states that it will provide a copy of the decision at the appropriate time.
2. 495. The Government adds that the Hospital had shown a deteriorating financial situation for some time and that it was up to the State to take the appropriate steps, within its competency, to fulfil its social obligations.
3. 496. In communications dated 4 July and 8 September 2003, the Government refers to the alleged default on the collective agreement concluded between the Ministry of Labour and Social Security and the Social Security Institute with SINTRASEGURIDADSOCIAL and the suspension of 5,000 workers with possible dismissal, and states that the territorial directorate of Cundinamarca began an administrative investigation into these complaints by SINTRASEGURIDADSOCIAL, but that the file was archived as neither the Social Security Institute nor the trade union appeared at the hearings organized by the Fifteenth Inspectorate, in accordance with the decree of 27 March 2003.
4. 497. With regard to the new allegations presented by the complainant organizations referring to the approval of CONPES document No. 3219 relating to the modernization of the Social Security Institute, the Government states that these documents are issued by the National Council for Economic and Social Policies (CONPES), which is the highest national planning authority acting as an advisory body to the Government on all aspects relating to economic and social development of the country. This body is responsible for coordinating and advising the organizations responsible for economic and social direction in the Government through the study and approval of documents on the development of general policies. CONPES falls under the authority of the President of the Republic and it is made up of the Ministers for Foreign Affairs, Agriculture, Trade, Social Protection, Transport and the Environment, Culture, the Director of the National Planning Department, the managers of the Bank of the Republic and the National Federation of Coffee Growers, the Director of Affairs for Black Communities and the Ministry of Justice and the Interior and the Director of the National Office for Women’s Equality.
5. 498. The Government sets out a historical description of the founding, in 1946, of the Social Security Institute, and its evolution over the years. The Government indicates that, in 1993, through Act No. 100 of 1993, a significant process of modernization of the health system took place, and this involved the creation of a new scenario in which the Social Security Institute lost its dominant position in the market, which was opened up to private sector competition. Moreover, in accordance with this Act, the benefits of the contributory scheme were extended to cover members of the immediate family of the subsidy-paying member. These measures had a great influence on the number of members of the Institute. From 1998, with private competition consolidated in the market and with the Institute facing serious administrative problems and problems in providing services, the number of members began to decline. In this way, the health business showed a decrease of 13.5 per cent in income between 1998 and 2002. There was also a decrease in spending, but this was limited to 7 per cent per year, owing to signed agreements and the conduct of those who were retired. (The Government provides a detailed list of these expenses.)
6. 499. The Government adds that the CONPES document establishes, in the final paragraph of its recommendations, a request that the Ministry of Social Protection form a tripartite commission made up of the Social Security Institute, the Government, represented by the Ministry of Social Protection, the National Planning Department and the Treasury, and the employees of the Social Security Institute (the Government attaches a copy of the notifications of these meetings) so that together they might draw up a joint proposal with regard to the structural problems of the Social Security Institute, in order to ensure its viability and the sustainability of the health services provided by it. This document goes on to establish a deadline, 30 April 2003, by which the Ministry of Social Protection must submit its report should there be no agreement among the parties. In this sense, the Government emphasizes the implementation of prior consultation with the trade union organizations, in accordance with the Committee’s recommendations. The Government adds that the President of the Republic personally met with workers’ representatives from the companies involved in the restructuring in order to consider in detail the measures that should be taken.
7. 500. The Government emphasizes that the reasons listed clearly show the serious problem confronting the Social Security Institute and that this is general in nature and totally excludes any anti-union motives. The Government denies the allegations relating to anti?union discrimination and refusal to grant trade union leave. It confirms that the situation affecting the enterprise led to the adoption of measures alleged by the complainant organization as anti-union and that, in reality, these were made at the general level, and it sends copies of the decisions granting the trade union leave requested by the trade union organization.
8. 501. With regard to the allegations presented by UTRADEC relating to anti-union harassment of María Teresa Romero Constante, president of SINDICIENAGA, the Government states that the territorial directorate of Madgalena, through the Ciénaga Labour Inspectorate, began an administrative labour investigation, summoning the trade union official and the Mayor of the Municipality in order to clarify the facts contained in the complaint. The investigation is in the preliminary stages.
9. 502. With regard to the allegations submitted by CUT relating to the dismissal without the lifting of trade union immunity and other anti-union acts against Gloria Castaño Valencia, the Government states that the territorial directorate of Cundinamarca concluded an administrative labour investigation and this is currently with the office of the Coordinator for Inspection and Oversight for preparation of the draft decision. The Government indicates that it will send a copy of this decision at the appropriate time. The Government adds that Gloria Castaño Valencia joined the trade union in July 2000 and the trade union organization submitted this request for registration with the Ministry of Labour on 30 August 2000, obtaining registration on 1 December 2000. The Government emphasizes that trade union immunity is a constitutional concept protecting the right of freedom of association and, as such, is a mechanism established primarily in favour of the trade union and secondarily to protect the employment stability of workers’ representatives.

D. The Committee’s conclusions

1. 503. With regard to the dismissal of the executive committee of ANTHOC without the judicial authorization required by Colombian legislation, in the framework of the mass dismissals that took place at the San Vicente de Paul Hospital, into which administrative investigations have been initiated, the Committee notes that, according to the Government, the territorial directorate of Antioquia issued three administrative decisions, Nos. 0394, 0420 and 0494, which established the lack of competency of the Ministry of Labour to decide on the alleged violation of trade union immunity, the collective dismissals and the violation of the right to freedom of association and collective bargaining, respectively. The second decision is final and a motion of appeal was lodged against the third decision, and this is in process. In these circumstances, the Committee requests the Government to provide information on whether the Hospital requested judicial authorization for the dismissal of the executive committee, as laid down in the legislation for the dismissal of trade union officials, and, if this is not the case, that it reinstate the dismissed trade union officials in their positions, without loss of pay.
2. 504. With regard to the alleged default on the collective agreement concluded between the Ministry of Labour and Social Security and the Social Security Institute with SINTRASEGURIDADSOCIAL, and the suspension of 5,000 workers with possible dismissal, the Committee notes the Government’s statement that the territorial directorate of Cundinamarca initiated an administrative investigation but that, in accordance with the decision of 27 March 2003, this was archived owing to the fact that neither the Social Security Institute nor the trade union attended the hearings arranged by the Fifteenth Inspectorate. The Committee requests the Government to provide information on whether the complainant organization has begun legal proceedings in this respect.
3. 505. With regard to the new allegations presented by the trade union organization relating to the intention of the Government to renegotiate the collective agreement in force in accordance with CONPES document No. 3219 of March 2003, the Committee notes the comprehensive information provided by the Government with regard to the nature of these documents and the difficult economic situation in which the Institute finds itself, which led to the adoption of the present document that refers to general measures to be taken, among which is the revision of the collective agreement prior to its expiry. The Committee notes that the document includes, in the final section, a provision requiring the Ministry of Social Protection to establish a tripartite commission comprising the Social Security Institute, the Government (represented by the Ministry of Social Protection, the National Planning Department and the Treasury) and the workers of the Social Security Institute, so that a joint proposal on the structural problems of the Social Security Institute may be submitted within a month in order to ensure the viability and sustainability of the health services provided by the Institute, and that, if there is no agreement, the Ministry will present a report before 30 April 2003. In these circumstances, the Committee invites the parties to encourage mutual understanding and good relations and highlights the importance of in-depth discussions on issues of mutual interest in order to arrive, in so far as it is possible, at commonly agreed and accepted solutions. The Committee requests the Government to keep it informed in this respect.
4. 506. With regard to the allegations submitted by UTRADEC relating to the anti-union harassment of María Teresa Romero Constante, president of SINDICIENAGA, by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga, who refused to negotiate with her in particular, and issued threats to make her leave the trade union, the Committee notes the Government’s information that the territorial directorate of Magdalena, through the Ciénaga Labour Inspectorate, began an administrative investigation, which is currently in the preliminary stages. The Committee requests the Government to keep it informed of the outcome of this investigation.
5. 507. With regard to the allegations relating to the default on the collective agreement as regards the payment of travelling expenses and the withholding of trade union dues, also alleged by UTRADEC, the Committee regrets to note that the Government has sent no observations in this respect and requests it to do so without delay.
6. 508. With regard to the allegations submitted by CUT relating to the dismissal without suspension of trade union immunity and other acts of anti-union harassment against Gloria Castaño Valencia, the Committee notes that the territorial directorate of Cundinamarca began an administrative investigation and that it is still awaiting a decision. The Committee requests the Government to keep it informed of the outcome of this investigation.

The Committee's recommendations

1. 509. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the dismissal of the executive committee of ANTHOC without the judicial authorization required by Colombian legislation, in the framework of the mass dismissals that took place at the San Vicente de Paul Hospital, the Committee requests the Government to provide information on whether the Hospital requested judicial authorization for the dismissal of the executive committee, as laid down in the legislation for the dismissal of trade union officials, and, if this is not the case, that it reinstate the dismissed trade union officials in their positions, without loss of pay.
   • (b) With regard to the alleged default on the collective agreement concluded between the Ministry of Labour and Social Security and the Social Security Institute with SINTRASEGURIDADSOCIAL, and the suspension of 5,000 workers, the Committee requests the Government to provide information on whether the complainant organization has begun legal proceedings in this respect.
   • (c) With regard to the allegations relating to the Government’s intention to renegotiate the collective agreement in force in accordance with CONPES document No. 3219, the Committee invites the parties to encourage mutual understanding and good relations and highlights the importance of in-depth discussions on issues of mutual interest in order to arrive, in so far as it is possible, at commonly agreed and accepted solutions. The Committee requests the Government to keep it informed in this respect.
   • (d) With regard to the allegations submitted by UTRADEC relating to the anti?union harassment of María Teresa Romero Constante, president of SINDICIENAGA, by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga, who refused to negotiate with her in particular, and issued threats to make her leave the trade union, the Committee requests the Government to keep it informed of the outcome of this investigation.
   • (e) With regard to the allegations relating to the default on the collective agreement as regards the payment of travelling expenses and the withholding of trade union dues, also alleged by UTRADEC, the Committee requests the Government to send its observations without delay.
   • (f) With regard to the allegations submitted by CUT relating to the dismissal without suspension of trade union immunity and other acts of anti-union harassment against Gloria Castaño Valencia, the Committee requests the Government to keep it informed of the outcome of the administrative investigation that has begun.