Informe provisional - Informe núm. 349, Marzo 2008

Caso núm. 2498 (Colombia) - Fecha de presentación de la queja:: 14-JUN-06 - Cerrado

Allegations: The National Union of Workers in Non-Governmental and Social Organizations (SINTRAONG’S), jointly with the CUT, the CGT, the CTC and the ITUC allege that the labour inspectorate of the Territorial Directorate of Antioquia refused to enter SINTRAONG’S into the union register because it is made up of workers who do not have a labour relationship established exclusively through a contract of work; the Union of Workers at Santo Tomás University (SINTRAUSTA) and the CUT allege that the university refuses to negotiate collectively with the trade union and has requested the judicial authority to dissolve and liquidate the union and to cancel its registration because its members do not have a labour relationship with the university; the Union of Employees in the University of Medellín alleges that the university authorities have, since 2000, committed numerous acts of anti-union discrimination and interference, such as insisting on a list of candidates for the union’s steering committee, dismissing workers for their union activities, prohibiting union membership and not complying with the collective agreement signed in 2004

1. 703. The complaint is contained in a communication dated 14 June 2006 from the National Union of Workers in Non-Governmental and Social Organizations (SINTRAONG’S) jointly with the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Workers (CGT). On 31 May 2006, the Union of Workers at Santo Tomás University (SINTRAUSTA), supported by the CUT, sent further allegations (received by the Office on 15 June). On 28 June 2006, the Union of Employees in the University of Medellín sent further allegations. SINTRAUSTA and SINTRAONG’S sent additional information in communications dated 27 July, 6 August and 23 August 2006, respectively. The International Trade Union Confederation (ITUC) sent further allegations in a communication dated 21 November 2006.
2. 704. The Government sent its observations in communications dated 25 October and 19 December 2006, and 8 March, 26 April and 29 October 2007.
3. 705. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 706. In their communications of 14 June and 23 August 2006, SINTRAONG’S, the CUT, the CGT and the CTC indicated that SINTRAONG’S was established on 12 September 2005. All workers in a labour relationship with non-governmental organizations, with permanent or fixed-term contracts or contracts to provide services, for building works or for specific projects, can join this organization. According to the trade union by-laws, its principle objectives are the improvement and defence of the salaries, benefits, timetables, systems of protection and accidents prevention and the working conditions in general, as well as the celebration of collective agreements. On 13 September, the union requested registration with the Ministry of Social Protection. On 26 September 2005, the labour inspectorate of the Territorial Directorate of Antioquia issued a ruling that workers who do not have a labour relationship established by an employment contract cannot be members of SINTRAONG’S and therefore the statutes must be modified.
2. 707. On 24 October 2005, the assembly of members decided not to modify the statutes in the manner requested by the labour inspectorate and to continue accepting the membership of workers regardless of whether they had a labour relationship established exclusively through an employment contract. The assembly of members, however, agreed to make the other changes indicated by the administrative authority on 25 November 2005.
3. 708. The complainants note that through resolution No. 02741 of 5 December 2005, the labour inspectorate again rejected the request for registration for the same reasons it had used previously. The legal appeals launched against the resolution were rejected.
4. 709. In its communication of 11 November 2006, the ITUC sent a copy of a letter sent to the Constitutional Court signalling that SINTRAONG’S had lodged an appeal for protection with the Labour Tribunal of the High Court of Medellín that had been denied; the same happened with the appeal to the Supreme Court of Justice. Currently, the appeal is in the Constitutional Court for possible review. According to the ITUC the refusal to register the union is based on the fact that first grade and industrial trade unions can only be joined by workers holding employment contracts and not any other means of relationship such as service provision, works contract, etc. The ITUC adds that, since the passing of Law No. 50 of 1990, there has been a process of increasing employment flexibility, which means that currently the majority of workers have a labour relationship other than an employment contract. This means that there is a restriction on the ability to join a trade union.
5. 710. In its communication of 31 May 2006, SINTRAUSTA indicates that it was formed on 27 August 2000 and was duly entered into the union register through resolution No. 002433 of 30 October 2000 issued by the Territorial Directorate of Cundinamarca. This registration was opposed by Santo Tomás University and by the private security firm Guardianes Compañía Líder de Seguridad Ltd, and the objection was admitted by the Ministry of Labour in resolution No. 000031 of 15 January 2001. SINTRAUSTA lodged an appeal to overturn the resolution, during which time SINTRAUSTA remained registered. Criminal proceedings were also started against the trade union and its leaders, which were rejected.
6. 711. SINTRAUSTA adds that since its formation it has made a list of demands to negotiate collectively but Santo Tomás University has flatly refused. Administrative action was initiated at the Ministry of Social Protection, but it did not intervene.
7. 712. In addition, the union notes that legal action has been taken to reinstate the members of SINTRAUSTA’s steering committee who benefited from trade union immunity, which was rejected.
8. 713. Subsequently, the university lodged a request to dissolve, liquidate and cancel the union registration, arguing that the union had members with no link to the university because since 1 July 2000 they worked for the firm Guardianes Compañía Líder de Seguridad Ltd instead. On 17 September 2004, the Ninth Labour Tribunal of the Bogotá Circuit ruled against the trade union with regard to the dissolution and ordered the cancellation of its registration because, among other things, at the time the trade union was formed, its members did not have a labour relationship with Santo Tomás University because there had been a change of employer to the firm Guardianes Compañía Líder de Seguridad Ltd. That decision was upheld by the Supreme Court of the Judicial District of Bogotá.
9. 714. In its communication of 28 June 2006, the Union of Employees in the University of Medellín alleges that since 2000, the union has been subjected to anti-union action by the university authorities, including: attempts at interference on the part of the university authorities by insisting on a list of candidates for the steering committee; the dismissal of Ms Dorelly Salazar for reporting this interference; pressure and threats of dismissal leading to 29 workers leaving the trade union; the dismissal without just cause in March 2001 of Norella Jaramillo, Ulda Mery Castro, Carlos Mario Restrepo and Julieta Ríos; forbidding teaching staff to join a union; the dismissal of four workers (Messrs Wilman Alberto Ospina, Jesús Alberto Munera Betancourt, Amparo del Socorro Graciano and Diana María Londoño Moreno) because of their union membership and after many years working in the establishment (Ms Graciano and Ms Londoño Moreno were reinstated as they had union immunity). Lastly, the complainant alleges that since the latest collective agreement was negotiated in 2004, it has been violated on a number of occasions.

B. The Government’s reply

1. 715. In its communications of 25 October, 19 December 2006, 8 March, 26 April and 29 October 2007, the Government indicated the following.
2. 716. With regard to the allegations presented by SINTRAONG’S about the refusal of the Territorial Directorate of Antioquia of the Ministry of Social Protection to enter the trade union into the union register, the Government notes that the right provided for in Article 2 of Convention No. 87, according to which workers and employers have the right to establish organizations “without previous authorisation”, does not mean that the founders of an organization are exempt from the formalities required by domestic law. Therefore, in accordance with the domestic legislation of the Territorial Directorate of Antioquia (Decree No. 1194 of 1994), by means of an observation order, the trade union was requested to correct some clauses in its statutes and clarify the procedure for election of its steering committee. The Government notes that the organization refused to comply with the observations contained in the aforementioned order, which is why it was denied entry into the union register.
3. 717. The organization did not correct its statutes, in particular article 1, paragraph 2, which refers to the union’s membership and includes “persons who offer their services in various ways …”, which does not comply with the provisions of current labour legislation, which states that persons linked via an employment contract as defined in article 22 of the Labour Code are authorized to organize themselves in unions: “An employment contract is a contract by which a natural person undertakes to provide a personal service to another natural or legal person, under the continued dependency or subordination of the latter and with remuneration”.
4. 718. Thus, an employment contract is characterized by the obligation of the worker to provide a service as a subordinate and by the obligation of the employer as a natural or legal person to remunerate him. The difference between an employment contract and a contract to provide services is that the first presupposes subordination. Civil law, rather than labour law, governs the latter type of contract. To conclude, by including provisions relating to the contract to provide services in its statutes, the trade union is going against the provisions of current labour legislation.
5. 719. The Government adds that in its resolution No. 02741 of 5 December 2005, the labour inspectorate of the Territorial Directorate of Antioquia referred to the procedure for electing a steering committee and considered that the trade union did not take account of the legislative provisions in article 17 of its statutes. Therefore, the Constitutional Court in Ruling C-797/00 stated: “It is not admissible to recognize the absolute nature of freedom of association, in that the Constitution itself establishes the limitation, which can be specified by the legislator, that the internal structure of trade union organizations should be subject to the legal order and to the principles of democracy (article 39, indent 2) and that international human rights conventions authorize imposing restrictions on rights by legislative means when they are necessary, minimal, indispensable and proportionate to the desired end … .”
6. 720. The Government does not believe that there has been any violation of Convention No. 87 by the Ministry of Social Protection: it complies with the labour legislation in accordance with the authority given to it by law in force and ensures its application, as demonstrated by resolution No. 02741 of 5 December 2005. This resolution was subject to appeals, which resulted in resolutions Nos 00151 of 15 February 2006 and 000757 of 22 May 2006. These resolutions confirmed the decision contained in resolution No. 02741 of 5 December 2005. The Government adds that the trade union has the right to call upon the administrative dispute body, which has the jurisdiction to determine the legality of the administration’s acts.
7. 721. With regard to the communication of the ITUC about the appeal for protection made by SINTRAONG’S against the Ministry of Social Protection for refusing to register the organization, the Government reports that the Constitutional Court decided not to review the appeal for protection. In accordance with the provisions of article 33 of Decree No. 2591 of 1991, magistrates in the Selection Chamber select proceedings that are due to be reviewed by the Constitutional Court at their own discretion and this selection need not have particular motivation.
8. 722. Regarding the allegations made by SINTRAUSTA, the Government states that with regard to the refusal to register the trade union, members of the then Ministry of Labour and Social Security acted in accordance with domestic legislation.
9. 723. With regard to the criminal proceedings, the Government clarifies that they did not affect the union in any way because the Office of the Public Prosecutor considered that “the creation of a trade union does not harm any protected legal object”.
10. 724. As to the refusal to discuss the list of demands, the Government notes that the Ministry did not take administrative measures against Santo Tomás University because this dispute can be adjudicated only by a judicial body, in accordance with article 486 of the Labour Code.
11. 725. The Government adds that in clause 7 of the contract to provide security services signed by Santo Tomás University and the firm Guardianes Compañía Líder de Seguridad Ltd, the university transferred the employment contracts of the security staff, who are members of SINTRAUSTA union. That contract was signed on 1 July 2000. The SINTRAUSTA union was created on 27 August 2000, therefore Santo Tomás University was not obliged to negotiate, because, in accordance with the above, there was no labour relationship between the members of SINTRAUSTA and Santo Tomás University.
12. 726. With reference to the allegations regarding the legal decisions denying protection by union immunity, the Government reports that the rulings handed down by the various labour authorities were contrary to the union’s claims, because the judiciary considered that the duly established summary of evidence clearly showed that there was no labour relationship between the workers in the SINTRAUSTA union and Santo Tomás University, as the university transferred the employment contracts to the firm Guardianes Compañía Líder de Seguridad Ltd by means of a contract to provide services and this employer substitution was configured before the union was formed on 27 August 2000 and its entry in the union register on 30 October 2000. Therefore, the legal authority did not ignore due process or the rights of those with union immunity, but rather the latter acted wrongly by accusing the university without having any proof of the labour relationship, which is considered to be the ultimate proof when requesting to be reinstated.
13. 727. Regarding the allegations of the dissolution of the trade union and cancellation of its registration, the Government notes that the Ninth Labour Tribunal of the Bogotá Circuit ordered the dissolution and liquidation of SINTRAUSTA and the decision was confirmed by the Labour Chamber of the High Court of the Bogotá Judicial District in a ruling on 31 January 2005, considering: “(…) it is undeniable in light of the relevant legal standards that when dealing with an enterprise trade union, as SINTRAUSTA is without any doubt, an indispensable assumption is that its members must be part of the enterprise in question, that is, that they must hold the condition of workers in the enterprise at the time of its establishment and it is clear in this case that they were not, because by virtue of the aforementioned substitution made on 1 July 2000 they were working for a new employer”.
14. 728. With regard to the allegations made by the Union of Employees in the University of Medellín, regarding the anti-union dismissal of unionized workers: Dorelly Salazar, Norela Jaramillo, Ulda Mery Castro, Carlos Mario Restrepo, Julieta Rios, Wilman Alberto Ospina and Jesús Alberto Munera Betancourt, the Government states that the University of Medellín, in accordance with domestic legislation (article 61, point 1, paragraph (h)) has the discretion to remove staff members as long as it compensates them.
15. 729. The Government highlights that the university’s intention in dismissing the aforementioned workers was not to compromise the right to organize and freedom of association, because those workers did not have positions of leadership in the trade union, in which case their dismissal might have caused harm to the union. Also, dismissing those workers did not reduce the number of union members in a way that could harm the union, because as indicated in the regulation (article 401 of the Labour Code) one of the reasons for dissolving a union of workers, as in this instance, is when its membership falls to below 25. The Government therefore believes that the allegation has no legal grounds.
16. 730. With regard to the alleged interference by the university in an assembly to elect the steering committee, this allegation has not been proven by the union. The union does not provide proof of the allegation regarding the deunionization of 29 workers either.
17. 731. The Government reports that according to the Territorial Directorate of Antioquia in communication CGPIVC/JMGG/381 of 7 November 2006, having reviewed the ongoing investigations of the Coordination Office for Inspection and Surveillance, there is no investigation into the University of Medellín for alleged violations of the rights to organize and freedom of association. It also reports on three investigations against the University of Medellín for violating the collective agreement for which the decisions handed down absolved the university, declared that the Ministry did not have jurisdiction or left open a legal recourse, and the trade union has not appealed these decisions. The Government adds that according to the information provided by the Territorial Directorate of Antioquia, the trade union has not reported any anti-union acts, a matter which is outside the Government’s responsibility.

C. The Committee’s conclusions

1. 732. The Committee notes that the present case refers to: (1) the allegations presented by SINTRAONG’S jointly with the CUT, the CGT, the CTC and the ITUC that the labour inspectorate of the Territorial Directorate of Antioquia refused to enter SINTRAONG’S into the union register because it is made up of workers who do not have a labour relationship established exclusively through a contract of work; (2) the allegations presented by SINTRAUSTA and the CUT that the university refuses to negotiate collectively with the trade union and has requested the judicial authority to dissolve and liquidate the union and to cancel its registration because its members do not have a labour relationship with the university; (3) the allegations presented by the Union of Employees in the University of Medellín that the university authorities have, since 2000, committed numerous acts of anti-union discrimination and interference, such as insisting on a list of candidates for the union’s steering committee, dismissing workers for their union activities, prohibiting union membership and not complying with the collective agreement signed in 2004.
2. 733. With regard to the alleged refusal by the labour inspectorate to register SINTRAONG’S, the Committee notes that the trade union was created on 12 September 2005 and its registration was requested on 13 September 2005, the labour inspectorate formulated objections in a ruling on 26 September the same year and the assembly of members decided to correct some aspects of the statutes that had been objected to, but did not modify the clauses regarding the nature of the labour relationship of its members so it could continue accepting the membership of workers even if they did not have an employment contract but were nonetheless linked via other types of labour relationship such as service providers’ contracts or building works contracts. The Committee also notes that through resolution No. 02741 of 5 December 2005 the labour inspectorate again rejected the request for registration and that the legal appeals launched against the resolution were also rejected, as there had been an appeal for protection made before the Constitutional Court. The Committee notes that according to the ITUC, since the passing of law No. 50 of 1990 there has been a process of increasing employment flexibility which means that currently the majority of workers have a labour relationship other than an employment contract.
3. 734. The Committee notes that the Government indicates that Article 2 of Convention No. 87, which provides for the right of workers to establish trade unions without previous authorization, does not mean that the formalities required by domestic law should not be complied with and that in the present case the trade union did not modify the provisions of the statute allowing membership of “persons who offer their services in various ways” and therefore they are not complying with current labour legislation which requires that members of trade unions have a labour relationship established by an employment contract. The Committee also notes the information from the Government that the appeal for protection was not selected for review by the Constitutional Court.
4. 735. The Committee recalls that Article 2 of Convention No. 87 establishes that all workers without distinction should have the right to establish and to join organizations of their own choosing, with the sole exception of members of the armed forces and police. The Committee has considered upon examination of similar cases [see for example 304th Report, Case No. 1796 and 336th Report, Case No. 2347], that the criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship. In these conditions, and in accordance with Article 2 of the Convention, the Committee requests the Government to take the necessary measures to register without delay SINTRAONG’S and to keep it informed in that respect. In addition, since the Government’s statements indicate that only workers with an employment contract have the right to form trade unions, the Committee requests the Government, in consultation with the most representative employers’ and workers’ organizations, to modify the law so that workers who do not have employment contracts can form the organizations of their choosing if they so wish.
5. 736. At the same time, the Committee invites the SINTRAONG’S organization to ensure that it respects the legal and statutory provisions with regard to the procedure for electing a steering committee.
6. 737. With regard to the allegations presented by SINTRAUSTA and the CUT, the Committee notes that according to the complainants, since the creation of SINTRAUSTA and since its union registration in August and October 2000, respectively, the university has refused to negotiate collectively unless the labour inspectorate has taken measures on the matter in spite of the administrative action that has been taken; legal action has been taken to reinstate the members of the steering committee which was rejected and subsequently the university lodged a request to dissolve, liquidate and cancel the union registration because the organization had members with no labour link with the university. On 1 July 2000 the employment contracts had been transferred to the firm Guardianes Compañía Líder de Seguridad Ltd. These circumstances were noted by the Ninth Labour Tribunal of the Bogotá Circuit which on 17 December 2004 ordered the cancellation of the registration, a decision which was upheld by the Supreme Court of the Judicial District of Bogotá.
7. 738. In this regard, the Committee notes that according to the Government, on 1 July 2000, the university signed a contract to provide security services with the firm Guardianes Compañía Líder de Seguridad Ltd, through which it transferred the employment contracts of the security staff and that on 27 August the same year SINTRAUSTA was formed. Therefore, according to the Government, the university was not obliged to negotiate because there was no labour relationship between it and the members of the trade union because of the transfer of contracts that led to an employer substitution which happened before the union was formed. The Committee notes that according to the Government this situation was recognized by the judicial authority when it ordered the dissolution and cancellation of SINTRAUSTA’s registration because when dealing with an enterprise trade union, like SINTRAUSTA, it is an indispensable requirement for its members to be workers in the enterprise at the time of its formation, something which was not the case here.
8. 739. Taking account of the circumstances listed, the Committee concludes that, at the time of its formation, SINTRAUSTA did not have members who worked for the university but rather members who worked for the firm Guardianes Compañía Líder de Seguridad Ltd. Indeed, the employer substitution took place on 1 July 2000 and the trade union was formed on 27 August, and was registered on 30 October 2000. Therefore, the Committee considers that as the security firm and not Santo Tomás University is the employer, it is not the responsibility of the university to negotiate collectively with the trade union.
9. 740. With regard to the request for the dissolution, liquidation and cancellation of the union registration of the enterprise union SINTRAUSTA for the same reasons, the Committee notes that the workers did not have a labour link to the university but with the security firm as has just been examined, and, therefore, it would be logical that the trade union should not use the name of Santo Tomás University. However, in order to not threaten the existence of the organization and taking into account that it had been entered onto the union register and had a sufficient number of members, the trade union should have been invited to change its name to eliminate the reference to Santo Tomás University, without threatening its existence or damaging its rights. In these circumstances, the Committee invites the complainant to modify its name and to request a new entry in the union register. The Committee requests the Government to take the necessary measures to ensure that when the aforementioned entry is requested, it is granted without delay.
10. 741. With regard to the allegations regarding legal action to reinstate workers under union protection, the Committee requests the complainants to specify how many workers were dismissed and to provide their names and the circumstances in which this occurred, in order to be able to examine the allegation in full knowledge of the facts.
11. 742. With regard to the allegations presented by the Union of Employees in the University of Medellín, regarding anti-union actions by the university authorities since 2000, the Committee notes that according to the trade union this behaviour includes interference by insisting on a list of candidates for the steering committee, the dismissal of Ms Dorelly Salazar for reporting it, pressure and threats of dismissal which led to 29 workers leaving the trade union, forbidding teaching staff to join a union, the dismissal without just cause of Norella Jaramillo, Ulda Mery Castro, Carlos Mario Restrepo and Julieta Ríos in March 2001; as well as the later dismissal of two more workers (Messrs Wilman Alberto Ospina and Jesús Alberto Munera Betancourt) following their union membership. The Committee also notes that according to the allegations, since the collective agreement was signed in 2004, it has been violated on a number of occasions.
12. 743. The Committee notes that according to the Government, the alleged dismissals took place within the context of the university’s discretion to dismiss staff members as long as it compensates them; that the dismissed workers did not have positions of leadership in the trade union and their dismissal did not lead to the reduction below the legal minimum of 25 members that would result in the dissolution of the union and that, therefore, it cannot be considered that the dismissal of the workers harmed the union. In addition, the Committee notes that according to the Government, the allegations of interference and the deunionization of the 29 workers as a result of pressure and threats were not proven by the union. The Committee also notes that the Government reports that there are no administrative investigations with regard to these allegations. Lastly, the Committee notes that, with regard to the alleged non-compliance with the provisions of the collective agreement signed in 2004, the various administrative investigations undertaken absolved the enterprise in one case, declared that the Ministry did not have jurisdiction or left open a legal recourse in others.
13. 744. The Committee believes that these allegations on dismissals, anti-union interference, pressure and threats are very serious and that the Government should send further information. In the meantime, the Committee wishes to highlight the following principles. The Committee recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 771]. The Committee highlights that all workers, regardless of whether they are a union official or member, should be protected against acts of discrimination. The Committee recalls that Article 2 of Convention No. 98 prohibits acts of interference in the functioning of workers’ organizations and that the promotion of collective bargaining means that the clauses of collective agreements should be respected fully. Therefore, the Committee requests the Government to carry out an investigation without delay into all reported acts and, if they are found to be true, to take the necessary measures without delay to reinstate the dismissed workers. The Committee requests the Government to keep it informed in that respect.

The Committee's recommendations

1. 745. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the alleged refusal by the labour inspectorate to register SINTRAONG’S, the Committee requests the Government to take the necessary measures to register it without delay and to keep it informed in that respect and invites SINTRAONG’S organization to ensure that it respects the legal and statutory provisions with regard to the procedure for electing a steering committee.
   • (b) The Committee requests the Government, in consultation with the most representative employers’ and workers’ organizations, to modify the law so that workers who do not have employment contracts can form the organizations of their choosing if they so wish.
   • (c) With regard to the request for the dissolution, liquidation and cancellation of the union registration of SINTRAUSTA, the Committee invites the complainant to modify its name and to request a new entry in the union register and requests the Government to take the necessary measures to ensure that when the aforementioned entry is requested, it is granted without delay.
   • (d) With regard to the allegations presented by SINTRAUSTA regarding legal action to reinstate workers under union protection, the Committee requests the complainants to specify how many workers were dismissed and to provide their names and the circumstances in which this occurred, in order to be able to examine the allegation in full knowledge of the facts.
   • (e) With regard to the allegations presented by the Union of Employees in the University of Medellín regarding anti-union interference by insisting on a list of candidates for the steering committee, the dismissal of Ms Dorelly Salazar for reporting it, pressure and threats of dismissal which led to 29 workers leaving the trade union, forbidding teaching staff to join a union, the dismissal without just cause of Norella Jaramillo, Ulda Mery Castro, Carlos Mario Restrepo and Julieta Ríos in March 2001, as well as the later dismissal of two more workers (Messrs Wilman Alberto Ospina and Jesús Alberto Munera Betancourt) following their membership, and the repeated violation of the collective agreement signed in 2004; taking account of the seriousness of these allegations, the Committee requests the Government to carry out an investigation without delay into all reported acts and, if they are found to be true, to take the necessary measures without delay to reinstate the dismissed workers. The Committee requests the Government to keep it informed in that respect.