Informe definitivo - Informe núm. 364, Junio 2012

Caso núm. 2823 (Colombia) - Fecha de presentación de la queja:: 04-OCT-10 - Cerrado

Allegations: The complainants allege that there have been mass anti-union dismissals at the state social enterprises in violation of the collective agreement in force, the special protection enjoyed by socially vulnerable workers and trade union immunity

1. 450. The complaint is contained in a communication from the National Union of Workers of the Social Security Institute (SINTRAISS) – Cundinamarca Section and the Social Security Workers’ Union (SINTRASEGURIDADSOCIAL) – Bogotá and Cundinamarca Section, of April 2010. In a communication dated 23 September 2010, the Colombian Trade Union Association of Therapists (ASTECO), the Association of Unionized Bacteriologists (ASBAS) and the Colombian Medical Trade Union Association (ASMEDAS) expressed support for the complaint.
2. 451. The Government sent its observations in a communication of July 2011.
3. 452. 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. 453. In its communication of April 2010, SINTRAISS – Cundinamarca Section and SINTRASEGURIDADSOCIAL – Bogotá and Cundinamarca Section, complain that more than 13,000 workers have been dismissed from the state social enterprises. According to the complainants, these dismissals breach: (a) the guarantee of trade union immunity, given that a large number of officials were dismissed without prior authorization from the judicial authorities; (b) the special protection enjoyed by socially vulnerable workers (fathers and mothers who are heads of families with no economic alternative, persons with disabilities, and those who will soon meet the conditions for receiving an old-age or retirement pension); and (c) the collective agreement signed between the Social Security Institute (ISS) and SINTRASEGURIDADSOCIAL (representing all the unions active at the ISS), which was in force when the enterprises were created and liquidated and when the trade union members were dismissed.
2. 454. The complainants state that, by means of Decree-Law No. 1750 of 26 June 2003, the Government divided the health sector from the ISS and created seven state social enterprises at national level: Antonio Nariño, Rafael Uribe Uribe, José Prudencio Padilla, Rita Arango Álvarez del Pino, Francisco de Paula Santander, Policarpa Salavarrieta and Luis Carlos Galán Sarmiento (this last is still in the process of being liquidated). The staff of ISS clinics and out-patient centres were automatically transferred to the new enterprises, their status changing from “public official”, with a collective agreement, job security and the rights to freedom of association and collective bargaining, to “public employee”, with no right to job security, trade union prerogatives or protection under agreements. The complainants add that, under the above Decree-Law, the state social enterprises in question replaced the ISS as the employer, with all the attendant rights and labour obligations. According to the legislation, when one employer replaces another there is a legal obligation with respect to the worker; the new entities were essentially no different in terms of providing public health services, and the workers continued to perform the same duties.
3. 455. The complainants state that, before the split, the ISS had signed a collective agreement valid from 1 November 1996 to 31 October 1999. This collective agreement was signed by SINTRAISS on behalf of all social security trade union organizations. In 2001, a comprehensive agreement was signed with SINTRASEGURIDADSOCIAL to strengthen the ISS. Among the most important commitments made by the Government were to lift the sanction imposed on the ISS by the National Health Supervisory Body that prevented it from forming new links with the Health Promotion Enterprise (EPS), to grant a loan of 1 billion Colombian pesos (COP), to maintain the ISS as a single enterprise, and to adopt measures to minimize the economic effects of the adverse allocation of patients with high cost illnesses, who are not profitable for private health promotion enterprises, to the social security EPS. SINTRASEGURIDADSOCIAL undertook to renegotiate the collective agreement in force, and abided by its commitment. The complainants state that the following alterations were made to the collective agreement: retroactive redundancy pay was abolished, the method of paying retirement pensions was changed, the Housing Fund was frozen, and other changes were made to supplements and benefits, representing a significant financial saving to the ISS, which in 2001 succeeded in balancing its budget. With these changes, SINTRASEGURIDADSOCIAL and the ISS signed a new collective agreement, valid from 1 November 2001 to 31 October 2004, article 5 of which guarantees job security.
4. 456. Act No. 790 of 2002 prohibited the liquidation, abolition or merging of the ISS, as a guarantee of public social security and the business unity of social security activities. Nevertheless, in 2003 the Government proceeded to divide the provision of health services from the ISS by means of Decree-Law No. 1750 of 26 June 2003. The complainants state that the aforementioned collective agreement is still in force, as it was denounced by the ISS in an attempt to avoid abiding by it, and no new collective agreement has been signed to replace it.
5. 457. The complainants point out that various judicial rulings have confirmed that the agreement remains valid, in particular the ruling of the Higher Court of Bogotá District, Labour Chamber, of 29 February 2008, which confirmed the ruling of the Second Labour Court, leaving the collective agreement in force and unaltered in content and requiring it to be applied in its entirety to all public officials and public employees who worked initially for the ISS and subsequently, for the seven state social enterprises created by Decree-Law No. 1750 of 2003. Similarly, the Constitutional Court, in its rulings C-314 and C-349 of 2004, ordered that the collective agreement in force between the ISS and its workers at the time of the split must continue to be applied to staff of the state social enterprises so as to respect the acquired rights of ISS public officials who became public employees in those enterprises. The complainants also mention various rulings (without providing copies thereof) which, according to their transcripts, support the continued validity of the collective agreement and its application to the workers who signed it. The complainants also transcribe ruling No. 209 of 27 May 2009, handed down as part of the liquidation of the state social enterprise Luis Carlos Galán Sarmiento, which states the following:
   • … the Chamber (Plenary of the Constitutional Court) concluded that the change of employer does not prevent the aforementioned labour agreement originally signed with the ISS from ceasing to be a source of rights for a worker at the respondent state social enterprise, at least while the agreement remains valid. Second, it is not true that the Chamber unduly granted permanent validity to the collective agreement … On the contrary, the Chamber’s argument that its application should cease is conditional upon it still being valid. Contrario sensu, if the agreement had lost its validity, it would not be possible to apply it.
6. 458. According to the complainants, the courts correctly interpreted the 2004 Supreme Court rulings to conclude that the collective agreement remains valid and that its provisions apply to staff of the state social enterprises.
7. 459. The complainants state that the Government has failed to comply with the above rulings of the Constitutional Court, issuing a written instruction, through the Minister of Social Protection and the President of the ISS, that no benefit contained in an agreement should be recognized for former ISS workers incorporated without their consent into the new state social enterprises. According to the complainants, the Government unilaterally interpreted the rulings of the Constitutional Court in a restrictive manner and the only reason for splitting the health sector off from the ISS was to liquidate the ISS and privatize services, which was accompanied by the incorporation of 13,000 staff into state social enterprises and the denial of rights acquired under the collective agreement. Proof that the Government was seeking solely to privatize social security and refuse to apply rights under the agreement is that, today, the ISS has been practically liquidated, neither ensuring nor providing health services, and that the seven state social enterprises were liquidated by decrees signed from 2006 onwards, with the dismissal of the 13,000 staff with no recognition of their rights under the agreement.
8. 460. The complainants add that, continuing the process of liquidation, in 2007 the National Health Supervisory Body revoked the operating licence of the EPS of the ISS and the Government created a new EPS with a private sector shareholder majority (family benefit funds), to which the insured were transferred, beginning operations on 1 August 2008.
9. 461. The complainants state that, in order to justify the liquidation of these state social enterprises, the Government alleged that they were being poorly managed, that they were not balancing their budgets, that they were not providing high-quality services, etc., ignoring the fact that the managers had been appointed by the Government itself. The liquidation orders contained a legal indemnity schedule set at less than 40 per cent of the schedule defined in the agreement. At the end of the liquidation process, trade union officials were dismissed, without prior judicial authorization, as were workers benefiting from special social protection, with payment of benefits and indemnities in accordance with the legal schedule, not the schedule contained in the agreement.
10. 462. The complainants stress that, with these actions, the Government liquidated public social security, ignoring the collective agreement in force, the trade union for the social security industry, and all the trade union organizations that had members in the ISS or the state social enterprises. At present, the social security services are responsible only for covering the risks of disability, old age and death, paying pensions and collecting contributions, having recently transferred all their activities to the newly created Colombian Pensions Administration.

B. The Government’s reply

1. 463. In a communication of July 2011, the Government confirms that, in exercise of the powers provided in law, it issued Decree-Law No. 1750 of 2003, by which the ISS, the vice presidency of Provision of Health Services, Clinics and Out-Patient Centres were divided and seven state social enterprises were created, into the staff of which those who had worked in the above departments were automatically incorporated with continuity of employment. These enterprises formed a special category of decentralized body at national level, with legal personality, administrative autonomy and their own patrimony, attached to the Ministry of Social Protection and totally independent of the ISS. The Government underlines the fact that the Constitutional Court declared the split to be in accordance with the Constitution and the provisions of Decree-Law No. 1750 of 2003, in terms of the nature of staffing, continuity of employment, salary and benefit arrangements, service, and grounds for retirement.
2. 464. The Government draws attention to sections 16 and 17 of the above Decree-Law, which expressly stipulate: “For all legal purposes, the staff of the state social enterprises created by this Decree-Law shall be public employees, except those who, though not managerial staff, are responsible for ensuring continued staffing of hospitals and provision of general services, who shall be public officials.” “Public servants who, when the decree came into force, were attached to the vice-presidency of Provision of Health Services, Clinics and Out-Patient Centres of the ISS will automatically be incorporated, in continuous employment, into the staff of the state social enterprises created by this decree. … The length of service of public servants who move from the ISS to the state social enterprises shall be calculated, for all legal purposes, to include the time they spend with those enterprises, with no break in service.” The Government states that proceedings were brought in respect of these provisions before the Constitutional Court, which found Decree-Law No. 1750 of 2003 to be in keeping with the Constitution.
3. 465. More specifically, the Constitutional Court stated:
   • … it can be deduced that the public servants assigned to the state social enterprises who acquired the status of public employee and lost that of public official, also lost the right to present lists of claims and to negotiate collective labour agreements. Consequently, belonging to a specific employment category, be it public official or public employee, does not imply an acquired right to conclude collective agreements, which is merely a capacity derived from the specific type of employment regime. The Court finds it valid to consider that, in this case, the residual right follows from the principal right, namely that, since the right to be a public employee or a public official does not exist, then the right to present collective agreements does not exist either if the employment regime has been modified. The contrary conclusion would be absurd, implying that certain types of public employees, who were previously public officials, would have the right to present collective labour agreements, unlike those who had never been public officials. This would create a third type of public employee, not provided for by the law, resulting from the transition from one employment category to another, and ultimately would impinge on the right to equality since those who had never been public officials would not have the right to improve their employment conditions through collective bargaining. It is therefore clear to the Court that the public employees working for the ESEs since 26 June 2003 cannot bargain collectively, nor can they aspire to benefit from collective agreements, as these are restricted by law to public officials.
4. 466. The Government thus confirms that, in order to guarantee the provision of timely and high quality health services, it took the decision to liquidate the state social enterprises that provided those services in view of the significant risk they presented as a result of being financially unviable and failing to provide high-quality and efficient health services. The state social enterprises were dissolved by administrative acts between 2006 and 2008.
5. 467. With regard to the application of the collective agreement, the Government states the following: (1) the agreement reached between the ISS and SINTRASEGURIDADSOCIAL could not be applied by the state social enterprises because they were not party to it; (2) section 3 of the agreement, concerning its scope, stipulates that the agreement applies to public officials on the staff of the ISS; (3) at present, the collective agreement remains in force and continues to apply to public officials at the ISS, who number more than 1,500; (4) the Decree-Law that divided the ISS entailed a change in the legal nature of the relationship between staff and the institution; (5) this change implies that the workers ceased to be public officials and that the standards for this category of officials no longer apply to them, being replaced by the general standards applicable to public servants; (6) there is no legal provision stipulating that a collective agreement should apply outside the enterprise that signed it, nor to workers or employers in other enterprises; and (7) in the ISS there are public employees to whom the collective agreement does not apply, even though their working arrangements are the same as public employees in the executive branch of the national administration.
6. 468. Furthermore, with respect to the legal concept of a change of employer, the Government states that this does not apply where state bodies are concerned. The concept is exclusive to private law, and the need to respect it cannot be used as grounds for applying the collective agreement. Moreover, under the Labour Code, three requirements must be met for a formal change of employer to occur: (1) a change of employer; (2) continuity of workforce; and (3) continuity of business activities. In the present case, the Government underlines the fact that there was a change of employer because there was no continuity of business activities. Two completely separate, distinct and autonomous legal persons are involved. With regard to the possibility of claiming the existence of acquired rights, the Government states that, in accordance with constitutional jurisprudence, “acquired rights are those that have definitively become part of a person’s patrimony”.
7. 469. With regard to the validity of the collective agreement, the Government states that, in a 2004 ruling, the Constitutional Court established that a collective agreement must remain valid for the period for which it was concluded, i.e. until 31 December 2004. Further to the Court’s ruling, the effects of which are erga omnes, the Ministry of Social Protection and the presidency of the ISS issued circular No. 00052 of 2004, which expressly stated the following:
   • Those public servants who were incorporated into the state social enterprises as public employees … and who had previously been covered by the collective agreement signed between the ISS and SINTRASEGURIDADSOCIAL, shall be accorded the same benefits by each state social enterprise, on a one-off basis, as ordered by the Constitutional Court, for the period 26 June to 31 October 2004 inclusive. After that date, the said public employees shall be covered exclusively by the legal provisions relating to public employees at national level. Consequently, for public employees, the administrative act recognizing and terminating these benefits shall expressly state that, as of 1 November 2004, salaries and benefits will be determined by the legislator for public employees, who, by express legal provision pursuant to the ruling of the Constitutional Court ... , are not entitled to present lists of grievances or sign collective agreements.
8. 470. This circular is a current administrative act of a general nature. It is binding on the state social enterprises and enjoys the presumption of legality. Discussing its legality falls under the competency of the administrative courts. The relevant judicial proceedings have not been brought before the administrative courts and the time limit for doing so has now passed, which means that the situation has been legally consolidated and is now protected by the Constitution and the interpretation given by the Constitutional Court.
9. 471. The Government highlights recent jurisprudence from the administrative courts, which have studied the issue of the applicability of the collective agreement and issued rulings setting out the proper procedures for complying with the orders of the Constitutional Court, specifically that rights acquired on the basis of the collective agreement should be respected and maintained until 31 October 2004, which the employer did, but that the validity of the agreement cannot be extended indefinitely, as claimed by the former staff members who wish it to continue to apply. In its ruling of 18 November 2010, the Cundinamarca Administrative Court expressly stated, with reference to extending the application of the collective agreement and specifically to denouncing it, that the following factors should be taken into account:
   • One may conclude that what this legal person desires to achieve is the renegotiation of the original agreement, which is inadmissible from every angle because, after the split of 26 June 2003, the ISS ceased to be the employer of the public officials covered by the collective agreement, as they were incorporated into the state social enterprises.
10. 472. The Government states that the judicial authorities have definitively and clearly established that the collective agreement in question continued to apply after the ISS was divided.
11. 473. Lastly, aside from the labour and pensions issue, a solution to which will be determined in law under the relevant jurisdiction and must then be adopted and applied by the state enterprises competent to assume the responsibilities established, the Government underlines the fact that the liquidation of the state social enterprises was carried out in accordance with legislation by the liquidators concerned. On this basis, deficiencies in the various processes were remedied through domestic channels to ensure that labour obligations were met, under the conditions laid down in law and in administrative acts on assuming liabilities.

C. The Committee’s conclusions

1. 474. The Committee observes that the complainants refer to mass anti-union dismissals at the state social enterprises – 13,000 workers – in violation of the collective agreement in force, the special protection enjoyed by socially vulnerable workers, and trade union immunity.
2. 475. The Committee notes that, according to the allegations made and the Government’s reply, these events took place as part of a restructuring process and the subsequent liquidation of the state social enterprises that provided social security services. In the first phase, on 26 June 2003, part of the ISS was divided into seven state social enterprises (the complainants state that only the staff of ISS clinics and out-patient centres were automatically incorporated into the new enterprises). The ISS “public officials” were incorporated with a change in legal status to “public employees” (the ISS still exists and currently has more than 1,500 public officials and a number of public employees). According to the Government, the Constitutional Court considered the split to be in accordance with the Constitution. For their part, the complainants state that a collective agreement had been signed between the ISS and SINTRASEGURIDADSOCIAL, representing the various unions active at the ISS, for the period 1 November 2001 to 31 October 2004, which guaranteed job security and, they allege, has been violated.
3. 476. The Committee notes that, in the second phase, between 2006 and 2008, the state social enterprises were liquidated, resulting in the dismissal of 13,000 workers, including numerous trade union officials, allegedly in breach of their trade union immunity and rights relating to job security and certain labour benefits acquired under agreements. The Committee notes that, according to the complainants, the only reason for the liquidations was to privatize the sector and deny the rights acquired. The Committee further notes the Government’s statement that it took the decision to liquidate the state social enterprises providing such services in view of the significant risk they presented as a result of being financially unviable and failing to provide high-quality, efficient health services. The Committee considers it necessary to underline the fact that, according to the Government, the liquidation of the state social enterprises took place in accordance with legal provisions, including the payment of labour benefits, but that, according to the complainants, the amount allowed for compensation in the liquidation orders for the enterprises was less than 40 per cent of that provided for in the collective agreement in question.
4. 477. The Committee points out that, with regard to the restructuring of public enterprises or institutions, it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions.
5. 478. The Committee wishes to point out that, despite the fact that this case concerns the mass dismissal of 13,000 workers as a result of the liquidation of seven state social enterprises, as part of what was, according to the complainants, a privatization process, and although this action taken had serious consequences, the complainants have not provided evidence to show that anti-union discrimination occurred and, as such, within its specific mandate, the Committee cannot examine these dismissals.
6. 479. The Committee therefore observes that the remaining issue for consideration in this case is whether the collective agreement signed between the ISS and SINTRASEGURIDADSOCIAL (which applies to ISS public officials) applies to “public officials” transferred to the seven state social enterprises in 2003 who became “public employees” and were dismissed between 2006 and 2008, when the enterprises were liquidated, and in particular whether its provisions on benefits in the case of termination of employment should apply. The Committee understands that the complainants maintain that the dismissed workers should be covered not only by the legal compensation package offered by the authorities, but also by the provisions on compensation for dismissal contained in the collective agreement, which are more favourable than those in the liquidation orders for the state social enterprises, while the Government maintains that the collective agreement did not apply to those workers.
7. 480. With regard to the validity and scope of the collective agreement, the Committee notes that the arguments put forward by the complainants to support its being applied are as follows: (1) the division of the ISS and subsequent creation of seven state social enterprises constituted a change of employer, and the enterprises must therefore, in accordance with legislation, respect the provisions of the agreement; (2) the Constitutional Court, in its ruling C-314/04 (case claiming that sections 16 and 18 (partial) of Decree-Law No. 1750 of 2003 “dividing the Social Security Institute and creating the state social enterprises” are unconstitutional), underlined the fact that the collective agreement is “a source of acquired rights at least while the agreement remains valid”; and (3) in view of the principle of the continuing effect of collective agreements, the agreement applies to the “public employees” moved to the state social enterprises because they have never denounced it.
8. 481. The Committee takes note of the Government’s statement in this regard that: (1) the dividing of the ISS and subsequent creation of the seven state social enterprises does not constitute a change of employer because in this case the requirement for “continuity of business activities” was not met and because section 3 of the agreement, concerning its scope, stipulates that the agreement applies to public officials on the staff of the ISS, and it could not therefore be applied by the state social enterprises because they were not part of the ISS; (2) according to constitutional jurisprudence, rights under agreements are not acquired rights; (3) the Decree-Law that divided the ISS in 2003 entailed a change in the legal nature of the relationship between staff and the institution; this change implies that the workers ceased to be public officials and that the standards for this category of officials no longer apply to them, being replaced by the general standards applicable to public servants, who do not have the right to bargain collectively; (4) there is no legal provision stipulating that a collective agreement should apply outside the enterprise that signed it, nor to workers or employers in other enterprises; and (5) the Government confirms that the collective agreement remains in force and applies to 1,500 public officials in the ISS, but its provisions cannot be applied to public employees (including those who were public officials before the split), as they do not have the right to present lists of grievances and therefore to bargain collectively.
9. 482. The Committee wishes to emphasize that questions of interpretation concerning the application of national legal standards to workers are a matter for the judicial authorities. In this regard, the Committee observes that the interpretation contained in the ruling of the Higher Court of Bogotá District, Labour Chamber, of 29 February 2008 (cited by the complainants without, however, supplying the text) upholds the collective agreement, requiring its full application to all public officials and public employees who originally worked for the ISS and subsequently for the seven state social enterprises created by Decree-Law No. 1750 of 2003, at least for the duration of its validity. Nevertheless, the Government cites a later ruling of the Cundinamarca Administrative Court of 18 November 2010 (the Government provides extracts) on the extension of the collective agreement, which states that, after the 2003 split, the ISS ceased to be the employer of the workers covered by the collective agreement because they had been incorporated into the state social enterprises.
10. 483. Lastly, the Committee observes that it appears, from various judicial rulings, that, when the ISS “public officials” became “public employees” in the state social enterprises, they no longer had the right to present lists of grievances and they lost their right to bargain collectively. The Committee recalls, however, that Colombia ratified the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154), in 2000 and that, in this context, and with a view to applying the Conventions it had ratified, in 2009 the Government took legislative measures to ensure that all workers (be they public sector workers, public employees or public officials) had the right to bargain. The Committee regrets the fact that, when the events in question occurred, workers were deprived of the right to bargain collectively and to seek application of the provisions of a collective agreement simply because their legal status had changed, and underlines the fact that, in various situations arising from changes of employer, it has requested the Government to ensure that changes of ownership neither deprive employees of the right to bargain collectively nor jeopardize, directly or indirectly, the situation of unionized workers and their organizations. The Committee regrets the fact that, as a result of the events that took place, workers dismissed as part of a restructuring process have been placed in a situation whereby they did not enjoy benefits that they had previously negotiated. The Committee expects that, by now, with the option of engaging in collective bargaining in the current legal framework, the interested parties have been able to negotiate an agreement to define terms and conditions of employment.

The Committee’s recommendation

1. 484. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Bearing in mind that Colombia has ratified the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154), and that, in this context, the Government took legislative measures in 2009 to ensure that all workers enjoy the right to bargain, the Committee expects that, by now, with the option of engaging in collective bargaining in the current legal framework, the interested parties have been able to negotiate an agreement to define terms and conditions of employment.