Report in which the committee requests to be kept informed of development - Report No 373, October 2014

Case No 3020 (Colombia) - Complaint date: 14-FEB-13 - Follow-up

Allegations: The complainant alleges that various union officials were the subject of anti-union dismissals as a result of competitive examinations in the civil service

1. 210. The complaint is contained in a communication dated 14 February 2013 from the National Union of Public Servants of Colombia (Sintraestatales).
2. 211. The Government sent its observations in a communication dated 4 October 2013.
3. 212. 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 complainant’s allegations

1. 213. The complainant alleges that ten union officials of the Cauca branch of Sintraestatales –Eliseo Ortiz Argoty (employed since April 2007), Janeth Patricia González Jiménez (employed since March 2005), Víctor Mario Mondragón (employed since February 2007), María Nuren Sánchez de Perdomo (employed since April 2005), Ana Rubiela Vásquez Daza (employed since April 2005), Luz Margoth Embus (employed since March 1993), César Orlando Bolaños (employed since January 2007), Hernán Adelmo Urriaga Fajardo (employed since May 2003), Nora Esperanza Vásquez Legarda (employed since July 2007) and Yonefy Artunduaga Moreno (employed since May 2008) were dismissed in 2011 and 2012 by the Education and Culture Secretariat of Cauca department and the Municipal Education Secretariat of Popayán municipality without the prior authorization of the labour court, which would have been required on account of their trade union immunity. The union and its officials sought reinstatement on the basis of their union immunity, but their application was denied.
2. 214. The complainant adds that the aforementioned workers, who were civil servants employed on a temporary basis, were dismissed as a result of a competitive examination to fill posts in the civil service, although there were many other vacant posts in the two administrations, identical to those held by the union officials, to which the persons who passed the examination could have been appointed without affecting the union and its officials. The complainant argues that the dismissal of the union officials therefore constitutes an act of anti-union discrimination, in breach of ILO Conventions Nos 87 and 98.
3. 215. The complainant adds that, in accordance with the case law of the Constitutional Court of Colombia, section 24 of Legislative Decree No. 760 of 2005 (establishing the procedure which must be followed before, and by, the National Civil Service Commission (CNSC) in the discharge of its functions), which provides that judicial authorization to lift trade union immunity is not required when a post held temporarily by a person protected by union immunity is opened up to a public competitive examination and the protected person does not pass the examination, did not apply to the ten dismissed workers. The complainant argues that, in the light of constitutional case law, that provision applies only where the number of persons selected by means of a competitive examination (eligible persons) is not lower than the number of vacant posts in the type of job which is opened up to a competitive examination in the corresponding administration and which is held by a union official on a temporary basis. The complainant notes that where the number of vacant posts exceeds the number of eligible persons having passed the competitive examination, the continuous employment of temporary civil servants in particular social categories – including those with trade union immunity – must be safeguarded.

B. The Government’s response

1. 216. In a communication dated 4 October 2013, the Government transmits the observations of the Municipal Education Secretariat of Popayán municipality and of the Education and Culture Secretariat of Cauca department. The Municipal Education Secretariat of Popayán municipality states that Nora Esperanza Vásquez Legarda’s employment relationship was terminated following a decision of the CNSC, dated 17 March 2011, publishing the list of persons eligible to fill administrative posts in the Popayán municipality, and that in order to recruit those persons who had passed all stages of the public competitive examination, it had to terminate the temporary appointment of Ms Vásquez Legarda. The secretariat adds that, according to Colombian case law, trade union immunity cannot obstruct the appointment of a person who has passed a public competitive examination; that there was no dismissal in this case; and that there is therefore no requirement to show just cause.
2. 217. The Education and Culture Secretariat of Cauca department states that the termination of the employment relationships of the remaining nine Sintraestatales officials referred to in the complaint, who were appointed on a temporary basis, occurred as a consequence of the results of the public competitive examinations conducted pursuant to Act No. 909 of 2004 governing posts in the public administrations and in conformity with the criteria set out by the CNSC in competition notice No. 001 of 2005, as a competitive examination had been held for the posts occupied by the aforementioned officials. It adds that, pursuant to section 24 of Legislative Decree No. 760 of 2005 establishing the procedure which must be followed before, and by, the CNSC in the discharge of its functions, no judicial authorization is required to terminate the employment relationship of employees with union immunity where the posts occupied on a temporary basis are opened up to a competitive examination and the employees in question do not hold posts which enable them to be appointed in strict order of merit. The Education Secretariat states that in Decision No. C-1119 of 2005, the Constitutional Court held that no judicial authorization is required to terminate the employment relationship of civil servants with trade union immunity who hold temporary posts. Lastly, it states that Janeth Patricia González Jiménez and César Orlando Bolaños filed separate special petitions for reinstatement on the grounds of trade union immunity, which were rejected by the courts.
3. 218. In its follow-up to the observations of the Municipal Education Secretariat of Popayán municipality and the Education and Culture Secretariat of Cauca department, the Government emphasizes that various decisions pertaining to the complainant’s allegations have been issued by the courts and labour administration: (i) the petitions for legal protection filed separately by César Orlando Bolaños and Eliseo Ortiz Argoty were declared inadmissible by the courts of first instance, as the plaintiffs had not exhausted the other regular channels to seek protection of their rights; (ii) the special petition for reinstatement on the grounds of trade union immunity filed by Janeth Patricia González Jiménez was rejected at both first and second instance; and (iii) in the case of the termination of Hernán Adelmo Urriaga Fajardo’s employment, Miguel Eduardo González, the Chairperson of Sintraestatales, filed an administrative labour complaint against the Cauca administration and the Education Secretariat for an alleged breach of the provisions of the Labour Code concerning trade union immunity. In a decision of November 2011, the Ministry of Labour absolved the two authorities of labour administrative responsibility. The Ministry founded its decision on: the aforementioned section 24 of Legislative Decree No. 760 of 2005, the various past rulings stating that it is not necessary to lift the union immunity of temporary employees; and the fact that the Ministry of Labour, as the administrative authority for labour matters, cannot establish the lawfulness or validity of the administrative decision to terminate the employment of union leaders, because only the judiciary is competent to do so. On the basis of the foregoing, the Government submits that: (i) an investigation of the labour administration absolved the Cauca administration and the Education Secretariat of responsibility; (ii) the Colombian courts have ruled on the petitioners’ claims and found against them; (iii) the Constitutional Court held that section 24 of Legislative Decree No. 760 of 2005 is constitutional; and (iv) accordingly, the termination of the employment relationships of the civil servants with trade union responsibilities was constitutional and lawful and was not intended to violate the right to freedom of association.

C. The Committee’s conclusions

1. 219. The Committee notes that this case concerns the termination by the Education and Culture Secretariat of Cauca department and the Municipal Education Secretariat of Popayán municipality of the employment relationships of ten trade union officials who were civil servants appointed on a temporary basis, as a result of competitive examinations conducted to fill administrative positions in the said institutions. The Committee observes that the complainant alleges that the terminations did not comply with the legal obligation to seek judicial authorization to lift the officials’ trade union immunity and that, given that the number of eligible persons who were selected as a result of the competitive examination was well below the number of vacant posts, and given that there were many vacant posts identical to those held by the dismissed union officials to which the successful candidates could have been appointed without affecting the union and its officials, the terminations constitute anti-union dismissals.
2. 220. The Committee takes note of the Government’s response, in which it states that the terminations of the union officials’ employment relationships complied with the constitutional and legal regulations for the civil service and did not result in any violations of freedom of association. The Committee also observes that the Government appends three judicial decisions by which the applications for reinstatement on the grounds of trade union immunity filed by three of the ten union officials concerned by this complaint were rejected.
3. 221. The Committee observes that the complainant and the Government both agree that, at the time that their employment relationships were terminated, the ten persons listed in the complaint were civil servants employed on a temporary basis – nine of whom by the Education and Culture Secretariat of Cauca department and one of whom by the Municipal Education Secretariat of Popayán municipality – and that they had the status of officials of the Sintraestatales trade union. Both parties also state that the terminations of the employment relationships followed the conclusion of public competitive examinations to fill administrative posts in the two administrations; that those competitive examinations pertained to all of the categories of the positions occupied by the union officials; and that, as a result of the tests, the union officials were not included in the list of persons eligible to fill the administrative posts.
4. 222. The Committee observes that the complaint presented by the complainant is founded primarily on the alleged violation of the Labour Code of Colombia, which provides that workers who enjoy trade union immunity may not be dismissed without prior judicial authorization to lift their immunity. In this respect, the Committee notes the Government’s statements that, pursuant to Legislative Decree No. 760 of 2005 and the related constitutional case law, the obligation to seek judicial authorization to lift trade union immunity does not apply where a competitive examination is held for a post occupied temporarily by a union official and the official in question does not occupy one of the posts which would enable him or her to be appointed in strict order of merit. The Committee notes that the sole basis for the judicial decisions cited by the Government which dismissed the claims of some of the union officials whose employment relationship was terminated was that the requirement for judicial authorization to lift their trade union immunity did not apply in their cases.
5. 223. The Committee observes that the complainant further alleges that the number of persons eligible as a result of the competitive examination for the category of posts occupied by each of the union officials whose employment relations was terminated was well below the number of vacant posts, and that, since there were many vacant posts identical to those occupied by the terminated union officials to which those who passed the competitive examination could have been appointed without affecting the union and its officials, the terminations constitute anti-union dismissals.
6. 224. The Committee notes that neither the Government’s response nor the observations of the two public administrations which it transmitted address this second issue. The Committee also observes that both the aforementioned judicial rulings and the decision of the Ministry of Labour following a complaint from Sintraestatales focus solely on the issue of the lifting of trade union immunity. However, the Committee observes that the documents appended to the Government’s response contain details on how the CNSC’s competition process No. 001 of 2005 was applied within the Education and Culture Secretariat of Cauca department and the consequences on eight of the ten union officials to whom this complaint pertains (Eliseo Ortiz Argoty, Janeth Patricia González Jiménez, María Nuren Sánchez de Perdomo, Ana Rubiela Vásquez Daza, Víctor Mario Mondragón, Yonefy Artunduaga Moreno, César Orlando Bolaños and Hernán Adelmo Urriaga Fajardo). In this regard, the Committee notes that: (i) the competitive examinations linked to the termination of the employment relationships of those eight union leaders covered all the posts in a particular professional category in the Secretariat and not any specific post; (ii) for the various professional categories in which the eight union officials were employed, the number of persons selected as a result of the competitive examination was well below the number of posts to be filled in the Secretariat (for the five posts of administrative assistants covered by the competition, two persons were selected; for the 87 posts of administrative technicians covered by the competition, 18 persons were selected; and for the 34 posts of security guards covered by the competition, six persons were selected); and (iii) the decision on the specific posts to which the eligible persons would be appointed (and on the resultant termination of the employment relationships of the workers temporarily occupying those posts) was made subsequently, with the selected persons being offered their choice of post in order of merit. The Committee notes that it does not have similar information concerning Luz Margoth Embus and Nora Esperanza Vásquez Legarda or the details of the competitive examinations which preceded the termination of their employment relationships.
7. 225. On the basis of the foregoing, the Committee notes, however, that the competitive examinations which resulted in the termination of the union officials’ employment relationships did not refer to individual posts, but to a series of posts belonging to the same job category. It can be seen from the information available for eight of the ten union officials that 26 persons were selected for a total of 126 posts opened up to competitive examinations, and that of the 26 posts ultimately chosen from the 126 available, eight were occupied by Sintraestatales officials, resulting in the termination of the employment relationships of the said eight union officials.
8. 226. In the light of the foregoing, the Committee considers that it does not have sufficient information to enable it to conclude whether there was any anti-union discrimination in the determination of the posts to which the persons selected as a result of the competition would be appointed and of the persons whose employment relationships would be terminated as a result. However, the Committee notes that continuity in the collective representation of the workers was not one of the criteria considered in the process. In this regard, the Committee recalls that it has emphasized the advisability of giving priority to workers’ representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 833]. In the present case, where the competitive examinations were held not for a specific post, but for a whole category of jobs, and where the number of persons selected was well below the number of posts for which the competitions were held, the Committee considers that it was feasible to strike a balance between the principle of merit-based selection and the protection of trade union activity by retaining union representatives in their jobs.
9. 227. Indeed, the Committee observes that, as is stated in the appendices to the complaint, a few months after the events of the present case, the Government adopted Decree No. 1894 of September 2012 (amending sections 7 and 33 of Decree No. 1227 of 2005), section 33 of which provides:
   • When the list of eligible persons drawn up at the outcome of a selection process comprises fewer candidates than available posts, prior to making the corresponding appointments on probation and terminating the employment of temporary staff, the administration shall take into account, in order, the following factors providing protection: 1. Persons with a serious illness or any form of disability; 2. Persons with the confirmed status as the father or mother at the head of a family, in accordance with the provisions of the regulations in force and the relevant case law; 3. Persons in pre-retirement, in accordance with the provisions of the regulations in force and the relevant case law; 4. Employees who enjoy trade union immunity.
10. 228. On the basis of the principles and information set out above, and noting that at the time of the complaint the number of persons selected as a result of a competitive examination was well below the number of posts available in the categories in which the terminated union officials were employed, the Committee requests the Government to take the necessary measures in the spirit of Decree No. 1894 of September 2012 to ensure that the relevant administrative authorities engage in dialogue with the complainant organization with a view to reinstating the trade union officials to their posts or to similar posts. The Committee requests the Government to keep it informed in this regard.

The Committee’s recommendation

1. 229. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Noting that, at the time of the complaint, the number of persons selected by competitive examination was substantially lower than the number of posts available in the categories in which the terminated union officials were employed, the Committee requests the Government to take the necessary measures in the spirit of Decree No. 1894 of September 2012 for the relevant administrative authorities to engage in dialogue with the complainant organization with a view to reinstating the trade union officials to their posts or to similar posts. The Committee requests the Government to keep it informed in this regard.