Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 362, Noviembre 2011

Caso núm. 2804 (Colombia) - Fecha de presentación de la queja:: 21-JUL-10 - Cerrado

Allegations: The complainant organization alleges that Decree No. 535 of 2009 restricts and violates the right to collective bargaining of public employees and that the Ministry of Defence claims that the Decree does not allow for negotiations with public employees regarding certain matters

1. 544. The complaint is contained in a communication of the Association of Public Servants of the Ministry of Defence and the Health Service Institutions of the Armed Forces and the National Police (ASEMIL) dated 21 July 2010. ASEMIL transmitted additional information in communications dated 1 July 2010, received on 14 February 2011, and 12 October 2011.
2. 545. The Government transmitted its observations in communications dated 14 January and 3 October 2011.
3. 546. 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), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant organization’s allegations

1. 547. In its communication dated 21 July 2010, ASEMIL states that Decree No. 535 of 2009, issued by the Government to regulate article 416 of the Substantive Labour Code, restricts and violates the right to collective bargaining of public employees.
2. 548. ASEMIL states that it has fallen foul of this restriction. Based on the abovementioned Decree, the Ministry of National Defence refused to negotiate regarding the points contained in the list of demands and the trade union organization requested the Government to repeal that Decree, although that request went unheeded. ASEMIL states that the Single Confederation of Workers (CUT) is in the process of lodging an appeal for annulment against Decree No. 535, with ASEMIL joining in that appeal on the basis that the Decree clearly contravenes both the Constitution and national labour legislation and that it was issued by an authority that is not competent in the matter, the Government. The appeal is currently before the Council of State – Second Section.
3. 549. More specifically, the complainant organization states that it submitted a list of demands by the public employees of the Ministry of Defence on 3 February 2010. The Ministry convened an initial meeting on 10 March 2010, and weekly meetings were scheduled jointly in order to reach agreements. Talks were extended for a further 20 days. The Ministry of Defence negotiating team stated that there was no way of reaching an agreement regarding any of the points related to the working conditions of the public employees. Prior to formally beginning negotiations concerning the list of demands, the Ministry categorically stated that: “The Ministry of National Defence, complying with the provisions of the aforementioned Decree, is prepared to hold consultations with the trade union organization over which you preside, in strict compliance with the provisions of Decree No. 535, of 2009. This Decree clearly states that any matters falling outside of the labour domain, such as organizational structure, staffing, the management, administration and inspection competencies of the State, administrative procedures and the merit principle as an essential element in the public service, shall be excluded from consultations concerning working conditions. This Ministry is prepared to move ahead with the process of consultations provided that the conditions contained in article 3 of the aforementioned Decree have been met.” This erroneous position was confirmed in writing through a communication dated 13 May 2010, in which the trade union was specifically informed of the points that would not be discussed, given that they were specifically excluded from the scope of collective bargaining in the light of Decree No. 535.
4. 550. The process continued under these restrictions, but no negotiations took place because the representatives of the Ministry of Defence hid behind the implementation of the Decree in order to avoid, at all costs, an agreement that would improve the working conditions of the public employees of the Ministry. ASEMIL attempted, both in writing and at the round table, to convince the Ministry’s negotiating team of the importance of making a real effort to push ahead with the process, while bearing in mind the spirit of collective bargaining. The final record of discussions was signed and stands as proof of the ineffectiveness of the negotiating process and the legal upheaval created by the Decree.
5. 551. Furthermore, ASEMIL states that Legislative Act No. 01 of 2005 hinders collective bargaining on pensions, prejudicing those workers who are nearing the age when they will have the right to their pensions.
6. 552. The complainant organization highlights that a precedent exists involving ASEMIL and the Ministry of National Defence regarding non-compliance with international agreements. ASEMIL made allegations in 1999 and 2007, denouncing, among other things, refusal to negotiate, non-compliance with Conventions Nos 151 and 154, and refusal to grant time off for trade union activities for the members of the national and regional executive boards (Case No. 2015 (closed) and Case No. 2522 (follow up)).
7. 553. Finally, in communications dated 1 July 2010, received on 14 February 2011, and 12 October 2011, ASEMIL states that the Central Military Hospital and the Officers’ Club entered into a collective bargaining process with ASEMIL to improve working conditions. According to the complainant organization, negotiations were satisfactory and two collective labour agreements were reached, one of which was formalized through Resolution No. 1100, dated 18 November 2010 (attached to the ASEMIL communication), handed down by the Director of the Central Military Hospital and duly deposited with the Ministry of Social Protection; the other collective agreement has been deposited on 27 September 2011. ASEMIL highlights that the agreements reached with the hospital (an institution which is part of the Ministry of Defence) and the Officers’ Club are an example of how it is possible to enforce the fundamental collective bargaining rights of public employees.

B. The Government’s reply

1. 554. In communications dated 14 January and 3 October 2011, the Government confirms that ASEMIL previously made allegations relating to refusal to negotiate and alleged non-compliance with ILO Conventions Nos 151 and 154 on the part of the Ministry of National Defence (Case No. 2015 (closed) and Case No. 2522 (follow up)).
2. 555. As to Decree No. 535, of 2009, the Government states that during the 98th Session of the International Labour Conference (ILC) in June 2009, it reported that: “Decree No. 535 of 2009 had been issued, which provided for the procedures and bodies to develop the consultation processes in state entities, giving priority to dialogue as a means to address working conditions in the public sector and to regulate employer–worker relations in public entities. This Decree had opened a new chapter in the right to collective bargaining for public employees in Colombia. Despite only being issued recently, this Decree had already brought concrete and satisfactory results. It should be pointed out that consultation processes had taken place in the District of Bogota, in the Ministry of Social Protection and the Ministry of Education, and, in the case of the latter entity, an agreement had been concluded with the Colombian Federation of Educators (FECODE).”
3. 556. The trade union organization refers to the submission of a “list of demands”, on behalf of the public employees of the Ministry of National Defence, which, in line with Decree No. 535, of 24 February 2009, regulating article 416 of the Substantive Labour Code and issued with the aim of establishing bodies within which consultation between the trade union organizations of public employees and public sector bodies might take place, initiated the series of meetings. The Government states that, from the very outset of the meetings, the Ministry of National Defence informed the trade union representatives that the abovementioned document could not be discussed by the administration in the form in which it had been submitted, given that, as had previously been pointed out on a number of occasions, collective bargaining for public employees was restricted, with organizational structure, staffing, the management, administration and inspection competencies of the State, administrative procedures and the merit principle as an essential element of the public service being excluded from consultations. Consultation regarding wages is possible at a regional level, in line with the limits set by the national Government, but consultation on benefits is not permitted.
4. 557. The Government adds that this rule does not apply to high-ranking employees of institutions occupying managerial positions which involve the adoption of policies or guidelines. Therefore, despite the fact that the Ministry of National Defence was fully prepared to comply with the provisions of Decree No. 535, of 2009, it was not possible to reach an agreement owing to the contents of the list, which involved a flagrant violation of the Constitution and of the laws governing collective bargaining for public employees.
5. 558. As to Conventions Nos 151 and 154, the Government highlights that ILO Convention No. 151 establishes that it must be applied to all persons employed by public authorities and that measures appropriate to national conditions shall be taken to encourage and promote the full development and utilization of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organizations. ILO Convention No. 154 states that the Convention applies to all branches of economic activity and that, as regards the public service, special modalities of application of this Convention may be fixed. As a public body, the Ministry of National Defence must comply with the regulations in force.
6. 559. The Government states that the above information is in line with the contents of Ruling No. C-1234, of 2005, which declared article 416 of the Substantive Labour Code to be enforceable:
   • On examining article 55 of the Constitution, the Chamber finds that it guarantees the right to “collective bargaining” in order to regulate employment relationships, including trade union organizations of public employees, and article 416 restricts the submission of lists of demands or the signing of collective agreements to those trade unions. Turning to the examination process, the matter in question is the restrictions contained in article 416 of the Substantive Labour Code, and therefore, despite the fact that there have not been any developments regarding this matter in terms of legislation at the level of Congress, the restriction contained in the legal provision is enforceable because, although the right to “collective bargaining” of trade unions of public employees is not mentioned, it is not specifically prohibited either. Therefore the provision is constitutional with regard to the matter in question, although subject to reserves until the legislator has introduced regulations in this regard. This declaration of constitutionality cannot be interpreted as the prohibition of the right of trade unions of public employees to carry out collective bargaining in the wider sense of the term. On the contrary, those organizations can submit claims, demands and queries, which must be dealt with. Trade unions of public employees can have recourse to one of a number of mechanisms designed for consultation regarding their working conditions and wages. In turn, this right must be exercised in line with the restrictions attached to the condition of public employee enjoyed by the members of these organizations, that is to say, although they can seek consultation, the State can take unilateral decisions regarding wages and working conditions.
7. 560. As to collective bargaining on pensions, the Government states that article 48 of the Political Constitution established that social security was to be provided in line with the principles of efficiency, universality and solidarity. The general pensions system is set out by Act No. 100 of 1993 following these principles. In order to achieve harmony regarding pensions, when developing the constitutional precept, Act No. 100 of 1993 clearly required respect for acquired rights “in accordance with previous legislative provisions, accords or collective agreements”, but also made it clear that this “should not prejudice the right of denunciation which the parties enjoy and that the arbitration tribunal would settle differences between the parties”. The foregoing shows the clear intention to align collective agreements and accords with the provisions of Act No. 100 of 1993 and that pensions cannot simply be considered a consequence of an employment relationship, but are a benefit derived from the social security system organized by the legislator. However, given that the Constitution guarantees the right to collective bargaining, with the exceptions provided for by law, and the intention of Act No. 100, as set out in section 11, was to put an end to the practice of establishing special rules in pension matters, in line with the statements made by the Supreme Court of Justice, which has repeatedly stated that pension benefits should be harmonized with Act No. 100 of 1993, in practice not only have collective agreements not been harmonized with the Act, but agreements continue to be concluded in which entities undertake to assume new pensions obligations directly, giving preference to certain workers and breaching the equality that the Constitution wished to impose on the social security system. Furthermore, the Government states that, within the context of the pension regime, the legislator established the requirements for access to that regime, as well as those elements that the system guarantees to beneficiaries.
8. 561. The Government highlights that, in the case of the public sector, agreement-based schemes have been created without quantifying their final effect, with the result that inequitable regimes have been created which ultimately endanger the very existence of the respective establishments. The private sector is also affected in a similar way. It has become clear that the ongoing operations of many enterprises in this sector have been affected by the cost of their pension liabilities. According to the Government, the above reasons serve to justify the establishment under Act No. 100 of the provision to the effect that pension regimes shall not be covered by collective bargaining. The main aim of Legislative Act No. 01 of 2005, is to ensure the effectiveness of the right to a pension for all those inhabitants who fulfil the legal requirements regarding the recognition of said right, on an equal footing, free of preference, and equally in favour of all, including the workers. The limitation relating to collective bargaining on pensions is certainly an issue, but the right of Colombian workers to have access to a pension is an entirely separate matter. Legislative Act No. 01 of 2005 was drawn up with the aim of safeguarding the wealth of the State, but not with the intention of undermining the right to organize and freedom of association, as claimed by the complainant organization. Finally, it should be pointed out that there are no ongoing administrative labour disputes brought by ASEMIL for alleged violation of trade union rights.
9. 562. The Ministry of Defence confirms the information provided by the Government and states that it respects, but does not share, ASEMIL’s position regarding its opposition to the Decree based on its scope, content and form. The complainant organization is opposed to the legislation and not to the Ministry, which did no more than comply fully with the contents of the legislation regulating article 416 of the Substantive Labour Code. It was in this way that the request for consultation was processed, the round table set up, representatives appointed and invested with powers, multiple meetings were held and the trade union association made aware of which issues fell within its remit and could be the subject of consultations. Furthermore, the Ministry gave clear indications regarding those aspirations held by ASEMIL with regard to which the Ministry could provide no legal solution because it was not competent to do so and finally, on 13 May 2010, ASEMIL was informed in writing of the reasons why agreements could not be reached. All of this shows that there was dialogue, an attempt at consultation and absolute respect for the trade union organization, as well as a process that that was carried out within the framework of the law which is not to the satisfaction of the trade union organizations, as can be seen by the complaint against Decree No. 535 of 2009. However, in no way can it be claimed that the Government or the Ministry of National Defence is disregarding the rights of the trade unions.

C. The Committee’s conclusions

1. 563. The Committee observes that, according to the allegations, Decree No. 535 of 2009 restricts and violates the right to collective bargaining for public employees and the Ministry of National Defence argues that the Decree does not allow for negotiations with public employees concerning certain issues.
2. 564. The Committee notes that the complainant organization states that there are precedents in the form of attempts at collective bargaining between ASEMIL and the Ministry of National Defence and that ASEMIL submitted a list of demands and the Ministry convened an initial meeting on 10 March 2010, with weekly meetings being scheduled jointly in order to reach agreements. However, according to the allegations, prior to the formal opening of negotiations on the list of demands, and based on the abovementioned Decree, the Ministry categorically refused to negotiate concerning the points contained in the list of demands, pointing out that they were excluded from the scope of collective bargaining. The complainant organization states that it requested the Government to repeal this Decree and CUT has lodged an appeal for annulment against Decree No. 535, which is currently before the Council of State – Second Section. Finally, ASEMIL states that Legislative Act No. 01, of 2005, hinders negotiations on pensions.
3. 565. The Committee notes that the Government states that: (1) ASEMIL has already made allegations relating to refusal to negotiate and alleged non-compliance with ILO Conventions Nos 151 and 154 on the part of the Ministry of National Defence (Case No. 2015 (closed) and Case No. 2522 (follow up)); (2) from the outset of the meetings, the Ministry of National Defence informed the trade union representatives that the list of demands could not be discussed by the administration in the form in which it had been submitted; (3) collective bargaining for public employees is restricted; (4) despite the fact that the Ministry of National Defence was fully prepared to comply with the provisions of Decree No. 535, of 2009, it was not possible to reach an agreement owing to the contents of the list, which involved a flagrant violation of the Constitution and of the laws governing collective bargaining for public employees; (5) as a public body, the Ministry of National Defence must comply with the regulations in force; (6) as to pensions, the main aim of Legislative Act No. 01 of 2005 is to ensure the effectiveness of the right to a pension for all those inhabitants who fulfil the legal requirements regarding the recognition of said right, on an equal footing; for that reason, and to avoid abuses, pensions in general are excluded from the scope of collective bargaining; and (7) there are no ongoing administrative labour disputes brought by ASEMIL for alleged violation of trade union rights.
4. 566. The Committee also notes that, according to the Ministry of National Defence, which confirms the information provided by the Government and the complainant organization, it is clear that there was dialogue, an attempt at consultation and absolute respect for the trade union organization, as well as a process that was carried out within the framework of the law which is not to the satisfaction of the trade union organizations, as can be seen by the appeal made against Decree No. 535 of 2009. However, in no way can it be claimed that the Government or the Ministry of National Defence is disregarding the rights of the trade unions.
5. 567. As to the allegation that the Ministry of National Defence refuses to negotiate with ASEMIL regarding the list of demands submitted by the latter organization, the Committee notes in particular that the Government states that the Ministry merely applied the provisions of Decree No. 535 of 2009, which restricts the scope of collective bargaining for public employees.
6. 568. The Committee notes that neither the complainant organization nor the Government specify the matters with regard to which it was not possible to reach an agreement, nor do they attach a copy of the list of demands. The Committee observes that article 2 of the Decree in question guarantees public employees the right to consultation with the employer public body through their trade union organizations, with the aim of: (1) fixing working conditions; and (2) regulating relations between employers and employees. Moreover, paragraph 1 states that “any issues falling outside of the labour domain, such as organizational structure, staffing, the management, administration and inspection competencies of the State, administrative procedures and the merit principle as an essential element in the public service, shall be excluded from consultations on working conditions”. The Committee recalls that matters which might be subject to collective bargaining include the type of agreement to be offered to employees or the type of industrial instrument to be negotiated in the future, as well as wages, benefits and allowances, working time, annual leave, selection criteria in case of redundancy, the coverage of the collective agreement, the granting of trade union facilities, including access to the workplace beyond what is provided for in legislation, etc.; these matters should not be excluded from the scope of collective bargaining by law. Moreover, with regard to a denunciation relating to the refusal to bargain collectively in the public sector regarding certain matters, the Committee has recalled the view of the Fact-Finding and Conciliation Commission on Freedom of Association: “there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation”. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and that such matters should not be regarded as falling outside the scope of collective bargaining conducted in an atmosphere of mutual good faith and trust” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 913 and 920]. The Committee expects that the Government will ensure respect for those principles with regard to the matters covered by collective bargaining.
7. 569. Finally, the Committee notes the information provided by the complainant organization, according to which CUT lodged an appeal for annulment of Decree No. 535 of 2009 (in which ASEMIL joined) which is currently before the Council of State – Second Section. The Committee states that it examined the Decree in question at its November 2009 meeting [see 355th Report, Case No. 2662] and observes that a number of collective agreements have been concluded based on that Decree without any disagreements arising in its regard. Furthermore, the Committee highlights that the Committee of Experts on the Application of Conventions and Recommendations stated, in its 2010 observation concerning the application of Convention No. 98, that it: “... is aware that the Decree is very short, can be improved and establishes principles which probably require further regulation to comply more effectively with its objectives and to extend in practice collective agreements in the various institutions. While from a technical viewpoint such regulation may well be appropriate, the Committee recalls that the Convention does not require exhaustive regulation, but rather is compatible with systems that envisage a minimum of interference by the State in collective bargaining in the public sector”. The Committee requests the Government and the complainant organization to keep it informed regarding the appeal for annulment lodged by the CUT and to transmit a copy of any ruling issued.
8. 570. As to Legislative Act No. 01 of 2005 prohibiting negotiation on pensions, the Committee notes that the Government states that, in the case of the public sector, agreement-based schemes have been created without quantifying their final effect, with the result that inequitable regimes have been created which ultimately endanger the very existence of the respective establishments. The Committee also notes that, according to the Government, the main aim of Legislative Act No. 01 of 2005 is to ensure the effectiveness of the right to a pension for all those inhabitants who fulfil the legal requirements regarding the recognition of said right, on an equal footing, with pensions being excluded from collective bargaining.
9. 571. The Committee states that it has already examined Legislative Act No. 01 of 2005 and recalled that: “... it recognizes the right of States to regulate pension schemes but underlines the necessity to respect the principle of collective bargaining in so doing. The adoption of a legal system for pensions does not generally fall within the jurisdiction of the Committee. However, it can examine to what extent the principles of freedom of association have been respected in adopting that system. Therefore, the Committee observes that until Legislative Act No. 01 was issued, it was legal to establish pensions clauses in collective agreements, in particular clauses that improved on the legal provisions, and so this was done on numerous occasions between private and public enterprises and public bodies with various trade union organizations. On those occasions, the parties regulated the mode and amount of pensions applied to workers in the enterprise or the sector through collective bargaining ... . The Committee requests the Government, in view of the particular circumstances of this case and in order to ensure harmonious industrial relations in the country, to hold new in-depth consultations on retirement and pension with the parties involved in order to find a solution acceptable to all the parties concerned in accordance with the Conventions on freedom of association and collective bargaining ratified by Colombia, in particular ensuring that the parties involved in collective bargaining can improve the legal provisions on retirement and pension schemes by mutual agreement.” [See 349th Report, paras 661 et seq.] The Committee reiterates its previous conclusions and recommendations on this matter and requests the Government to ensure that the parties involved in collective bargaining are free to negotiate in good faith on matters related to retirement and pension schemes with a view to achieving a mutual agreement.

The Committee's recommendations

1. 572. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the Government will ensure respect for the principles relating to the matters covered by collective bargaining.
   • (b) The Committee notes the information according to which CUT lodged an appeal for annulment of Decree No. 535 of 2009 (in which ASEMIL joined), which is currently before the Council of State – Second Section. Consequently, the Committee requests the Government and the complainant organization to keep it informed in that regard and to transmit a copy of any ruling issued.
   • (c) The Committee reiterates its previous conclusions and recommendations concerning pensions and requests the Government to ensure that the parties involved in collective bargaining are free to negotiate in good faith on matters related to retirement and pension schemes with a view to achieving a mutual agreement.