Informe provisional - Informe núm. 344, Marzo 2007

725. These complaints are contained in communications from the National Association of Telephone and Communications Engineers (ATELCA) of 15 June 2005 and the World Confederation of Labour (WCL) of 8 August 2005. ATELCA sent additional information on 25 October 2005. The WCL sent appendices in a communication of 14 December 2005. The General Confederation of Labour (CGT) submitted new allegations in communications dated 12 June and 28 July 2006. The National Union of Workers of Interconexión Eléctrica SA (SINTRAISA), the National Union of Workers of CHIVOR (SINTRACHIVOR) and the National Union of Workers of ISAGEN SA ESP (SINTRAISAGEN) made new allegations in a communication dated 12 September 2006.

1. 726. The Government sent its observations in communications dated 13 December 2005, 17 and 25 January, 23 February, 27 June and 14 November 2006.
2. 727. 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 complainants’ allegations

1. 728. In their communications of 15 June and 25 October 2005 and of 12 September 2006, ATELCA, SINTRAISA, SINTRACHIVOR and SINTRAISAGEN allege that, under Legislative Act No. 1 of 22 July 2005 (former Bills Nos. 11 of 2004, 034 and 127 of 2004 (Chamber)), article 48 of the Constitution of Colombia on social security was amended such that, upon its approval, all persons will be subject to the scheme established in the general pension system set out in Act No. 100 of 1993. This undermines the right of collective bargaining established in Conventions Nos. 98 and 154, as under section 1 of the new Act, with effect from the entry into force of the Legislative Act in question, pension arrangements other than those set out in the Act cannot be established by accords, collective agreements, awards or legal acts of any kind. In addition, section 2 provides that, except for the scheme applicable to the President of the Republic and members of the forces of order, any exceptional or special scheme will lapse on 31 July 2010. Finally, section 3 provides that the pension rules in force on the date of entry into force of the Legislative Act contained in valid accords, collective agreements, awards or agreements shall remain in force for the term originally agreed, but will, in any case, cease to be valid on 31 July 2010. The complainant organization indicates that, as a consequence of these new arrangements, collective bargaining on social security issues between employers and workers will not be possible, thus denying trade union autonomy and the will of the workers to improve their living conditions in relation to social security.
2. 729. The complainant organization adds that the Government called on the people to vote in a referendum in which the question of pensions reform was included, and the referendum rejected the reform. Legislative Act No. 1 was imposed against the will of the social partners, national trade unions, labour confederations, grass-roots industry and occupational trade unions, but their arguments were not taken into account by Congress.
3. 730. SINTRAISA, SINTRACHIVOR and SINTRAISAGEN filed an appeal contesting the constitutionality of Legislative Act No. 1 with the Constitutional Court which, on 14 June 2006, found that it was not competent to rule on the matter.
4. 731. In its communications of 8 August and 14 December 2005, the WCL alleges that the National Office of the Attorney-General refused to engage in collective bargaining with the National Union of Workers of the Office of the Attorney-General (SINTRAPROAN). In view of this refusal, and after repeated fruitless requests, the trade union entered an action for enforcement in the Quindío Administrative Court. The purpose of this action was to enforce compliance with article 55 of the Constitution, which sets out the right of collective bargaining, Act No. 411 of 1997 approving Convention No. 151 and Act No. 524 of 1999 approving Convention No. 154. All the foregoing was pursuant to article 53 of the Constitution, which establishes that ILO Conventions form part of domestic legislation. This enforcement action resulted in the ruling of 1 March 2004, denying the right of workers in the Office of the Attorney-General to negotiate fundamental workers’ rights through collective bargaining, a decision which was confirmed by the Council of State on 5 March 2005.
5. 732. In its communications of 12 June and 28 July 2006, the CGT adds that, in parallel with the refusal to negotiate with SINTRAPROAN, the Office of the Attorney-General initiated disciplinary proceedings against Carlos Tulio Franco Cuartas, a leader of the trade union organization, with a view to preventing him from carrying out his trade union functions. As a result of this anti-union persecution, Mr Franco Cuartas had to leave his job. Furthermore, Luis Carmelo Cataño Cataño, Carlos Romero Aguilar, Francisco Molina and Silvio Elías Murillo were dismissed despite being covered by trade union immunity. In the case of Mr Murillo, the Chocó Administrative Tribunal ordered his reinstatement, but the employer entity has not given effect to this ruling.
6. B. The Government’s reply
7. 733. With respect to the allegations submitted by ATELCA concerning Legislative Act No. 1 of 22 July 2004, amending article 48 of the Colombian Constitution on social security, the Government indicates that this Legislative Act is a fundamental element of the package of measures adopted to address the serious problems arising in financing pensions liabilities. The Government considers that various aspects warrant consideration by the Committee on Freedom of Association in this case.
8. 734. In the first place, the regulation of conditions for the award of pensions is not strictly a matter of conditions of work, but a post-employment issue relating to the sphere of pensions. Conventions Nos. 98 and 154, which are alleged to have been violated, refer to negotiations of terms and conditions of employment. These instruments do not regulate pensions issues, which are covered by other instruments also adopted by the Organization. Secondly, the latter Conventions envisage the possibility of States regulating or legislating on pensions-related matters, without in so doing violating the right of collective bargaining.
9. 735. Thirdly, collective bargaining relating to pensions, by its very nature, contains elements which are outside the scope of collective bargaining and which depend on the powers granted by constitutions to governments and their legislative bodies. Taking into account that these aspects concern the entire population of a given country, they cannot be regulated by agreement, but by the legislator, who has the power to regulate general conditions governing the lives of the citizens. This is not a violation of the right of freedom of association but one of the most legitimate expressions of a welfare State governed by the rule of law. It is clearly and universally accepted that matters such as age, the number of contribution weeks, differences between the sexes when establishing certain requirements, are not fixed by collective bargaining between a certain group of citizens, in this case unionized workers, and the negotiating authority, but by the legislature, since they relate to general matters concerning the living conditions of the population as a whole.
10. 736. The chief objective of any scheme is to ensure the financial sustainability of the social security system, ensuring that all Colombians have an effective right to a pension and reconciling the right to a pension with the State’s need to allocate resources to meet its responsibilities towards all Colombians with regard to health, education and other social expenditure. In addition, the aim is to ensure that the Colombian pensions system is fair to all Colombians, to which end, from 2008, pension requirements and benefits will be those established by the Pensions (General System) Act.
11. 737. The Government indicates that initially the protection of persons against the contingencies of old age and invalidity was structured as a consequence of the employment relationship. That was how it was envisaged in the Substantive Labour Code. The 1991 Constitution adopted a different model for social security, establishing in article 48 that all citizens are guaranteed an inalienable right to social security and to that end indicating that social security is a public service of a compulsory character which shall be provided under the direction, coordination and control of the State, subject to the principles of efficiency, universality and solidarity, in such terms as may be established by law.
12. 738. Article 48 of the Constitution accordingly envisages the social security system as independent from the labour system. Indeed, the 1991 Constitution excludes the right to the provision of social security from the autonomy of private will and considers it a right of every person in terms of the provision of a public service of a compulsory nature that is to be directed and coordinated by the State, subject to the principles of efficiency, universality and solidarity.
13. 739. Thus the social security system, of which the pension scheme is part, is now a system which should cover all inhabitants of the national territory against the contingencies that affect them, in accordance with the principles of universality, progressiveness, effectiveness, efficiency and solidarity, and its organization is a matter for the legislator.
14. 740. According to the Government, the present Bill (the relevant Government reply was sent prior to the adoption of the Legislative Act itself) is perfectly in harmony with the provisions of article 48 of the Constitution and introduces two new criteria, those of equity and the financial sustainability of the system, which are justified because resources are limited and must be distributed in accordance with the needs of the population, and for which mechanisms must be established to ensure that resources are sufficient to give real effect to the right.
15. 741. These principles, moreover, correspond to the spirit of the Constitution which, in its preamble, provides that it is adopted, inter alia, to secure justice and equality for the members of the nation and to guarantee a just political, economic and social order. In addition, article 20 of the Constitution indicates that one of the purposes of the State is to ensure the effective implementation of rights, so that the rights accorded are not merely theoretical, but are effective in practice.
16. 742. The adoption of Act No. 100 of 1993 sought to give effect to the constitutional principles and to resolve the structural financial problems that were emerging in the pensions system and which were the result of decisions such as low contributions, or none at all, the dispersion of pension schemes and exaggerated benefits. All this was aggravated by demographic factors, such as the decline in birth, fertility and mortality rates, combined with increases in life expectancy.
17. 743. Indeed, prior to the adoption of Act No. 100 of 1993, it was estimated that the provision of a pension lasted on average around 15 years, an aspect taken into account in calculating contributions. The estimated period is now 26 years, including the provision of pensions to dependants, which is tending to rise, with the consequent burden on public finances, in view of the additional years for which the pensions already due have to be financed.
18. 744. In the specific case of the ISS, in addition to the demographic effect, the financial imbalance has been exacerbated by the process of the maturing of the average premium scheme. This means that the dependency rate, defined as the ratio between the number of pensioners and the number of contributing insured persons, has increased. This indicator, which was two pensioners for each 100 insured persons in 1980, rose to ten pensioners for every 100 contributing insured persons in 1993 and to 21 pensioners for every 100 contributing insured persons in the average premium scheme in 2002.
19. 745. The measures adopted in Act No. 100 of 1993 were not sufficient to eliminate the large imbalances which were already occurring in the system. This was compounded by an additional factor working against the financial stability of the ISS and the general system, which was the recession experienced by the Colombian economy in the second half of the 1990s and the beginning of the present century. The high levels of unemployment and informality resulting from the crisis prevented insured persons from paying their contributions and the number of inactive insured persons rose in the dual system.
20. 746. In addition, Act No. 100 of 1993 did not cover all sectors, since it did not include members of the police, public servants affiliated to the National Teachers’ Social Benefit Fund and Ecopetrol workers. In addition, the Act did not affect legally concluded collective agreements or accords, nor did it prevent them from continuing to be concluded.
21. 747. The general pensions system in Colombia, including the transitional arrangements, and the excepted schemes were therefore experiencing financial difficulties which were reflected in high operating deficits. Indeed, the operating deficit, measured as the difference between pension contributions and benefits in the pensions system, led to the need to use resources from the ISS reserves and the general national budget equivalent to 3.3 per cent of GDP in 2000 (5.1 billion pesos) and 4.6 per cent of GDP in 2004 (8.2 billion pesos).
22. 748. Thus, despite the adoption of Act No. 100 of 1993, an unsustainable situation arose involving a transfer of liabilities between generations, since current and future contributors through their taxes and contributions would have to finance not only the debt relating to current pensions, but also their own social expenditure and their future pensions.
23. 749. The pensions operating deficit aggravated the difficult economic situation through which the country was passing, which had a negative impact on employment, tax revenues and contributions. To finance the social cost of pensions, in accordance with constitutional obligations, over the past ten years, the nation has used resources which otherwise would have been allocated to other essential purposes and objectives of the State. As a consequence, the nation had to resort to rising internal and external debt to finance the growing social investment in health and education.
24. 750. The operating deficit for pension liabilities in the last 12 years rose to 30.5 per cent of GDP, i.e. the equivalent of 60 per cent of total public debt, which was unsustainable in macroeconomic and fiscal terms. The burden on present and future generations was not consistent with their incomes. The amount of the projected pensions deficit over a 50-year time horizon was 207 per cent of GDP in 2000. It was for these reasons that the Government proposed to reform the pensions system, and Congress approved Acts Nos. 797 and 860 of 2003, as a result of which the pension deficit fell to 170.2 per cent of GDP over the same period.
25. 751. However, this figure is not satisfactory. Countries with a similar level of pension liabilities to Colombia are developed or industrialized, and therefore have full access to international financial markets. It should be noted that, although Colombia’s level of liabilities in terms of GDP is similar to Japan’s, the level of coverage of the population of pensionable age receiving a pension in Colombia is some 23 per cent of people aged 60 or over, while in Japan, the pension system covers 88 per cent of the population over 65 years of age, who also have the highest life expectancy in the world. In other words, a debt that is proportionally similar in terms of GDP is shared among a considerably less representative group of inhabitants in the case of Colombia.
26. 752. In Colombia there are 1 million pensioners, out of 4 million people of pensionable age. There are 11.5 million insured persons, of whom only 5.2 million are active contributors, compared with an economically active population of 20.5 million. This difference can be explained by a relatively low rate of compliance with the system.
27. 753. To make the system sustainable and to some extent reduce the size of the envisaged deficits, the Congress of the Republic approved a pensions reform through Act No. 797, which envisaged changes to the requirements and benefits of the general pension system, and succeeded in reducing the national pensions deficit to 40 per cent of GDP in 2000 over a horizon of 50 years, moving towards the sustainability of future pension payments and the macroeconomic and fiscal stability of the country. However, the Constitutional Court declared the provisions of the Act to reform the transitional arrangements unconstitutional for procedural reasons. The considerable fiscal impact of the transitional arrangements led the Government to insist on reforming the transitional arrangements, since between 2003 and 2004 there would be an increase of 21 per cent in current pension payments borne by the nation, rising from 7.1 billion pesos in 2003 to 9.9 billion pesos in 2004, as a result of the growth in the number of pensioners and, above all, the larger budget inputs required in view of the imminent exhaustion of the financial reserves of the ISS this year. For these reasons, the national Government presented and Congress approved Act No. 860 of 2003, which fundamentally changed the transitional arrangements.
28. 754. Although the reforms adopted helped to improve the operating balance of the system, they did not succeed in balancing it completely. The country spends more on social security than on other sectors which also in one way or another represent constitutional priorities. Current pension payments correspond to a proportion of the budget that is greater than each of the other sectors included in the budget.
29. 755. For example, with a similar level of national budgetary resources that are used to pay pensions, the education of 8.2 million children in the country would be financed or, in the case of health resources, care for 11.4 million members of the subsidized scheme would be co-financed.
30. 756. The Government indicates that for this reason it is necessary to undertake a reform which ensures fair treatment in terms of pension covering all Colombians, for which it is absolutely essential to limit the possibility to modify pension rules by agreement. The Bill presented to the Congress of the Republic seeks to strengthen the measures adopted in Acts Nos. 797 and 860 of 2003, with one of the principles being that of the financial sustainability of the system.
31. 757. Only in the case of the forces of order, taking into account the characteristics of this group of public servants and the risks to which their members are subject, is it justified to maintain a special scheme.
32. 758. With regard to collective bargaining, the Government indicates that, to achieve harmony in pension matters, Act No. 100 of 1993, in developing the constitutional precept, clearly required respect for acquired rights “in accordance with previous legislative provisions, accords or collective agreements”, but also made it clear that this would be “without prejudice to the right of denunciation which assists the parties and the arbitration tribunal in settling differences between the parties”. The foregoing shows the clear intention that collective agreements and accords should be aligned with the provisions of Act No. 100 of 1993 and the fact 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 laid down by law, it was not possible to fulfil the intention of Act No. 100, as set out in section 11, since there remains the possibility of continuing to establish special rules in pension matters, for which reason and despite the fact that the Supreme Court of Justice has repeatedly stated that pension benefits should be harmonized with Act No. 100 of 1993, 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.
33. 759. According to the Constitutional Court, the universality of the social security system presupposes a guarantee of protection for all persons without any discrimination, at all stages of their lives, and this guarantee without discrimination can only be provided in a unified system which cannot be varied at the will of one sector of its beneficiaries.
34. 760. One of the fundamental elements in designing, implementing and developing a pension system is its economic and financial basis. From this point of view, pension schemes based on collective agreements represented a considerable effort for public and private finances. Indeed, huge resources are being allocated to finance special pension schemes which could be used to extend the coverage of the general social security system and increase social investment or further the development of the country.
35. 761. It is no exaggeration to say that, in the case of the public sector, these agreement-based schemes have in many cases been created without quantifying their final effect, with the result that inequitable schemes have been created which ultimately endanger the very existence of the respective establishments. The private sector is no stranger to this situation. It is evident today how the continued operations of companies in this sector have been affected by the cost of their pension liabilities.
36. 762. In addition, the Government recalls that article 55 of the Constitution provides that “The right of collective bargaining in regulating industrial relations shall be guaranteed except as otherwise provided by the law.” From this point of view, it could be argued that a law may determine the scope of the right of collective bargaining and exclude pension schemes from its scope. However, examination of the case law of the Constitutional Court does not yield clear conclusions on this point. Indeed, although the Constitutional Court initially allowed fairly ample scope concerning the possibility of establishing limits to the right of collective bargaining for reasons of public interest, in recent years it has been more restrictive.
37. 763. Firstly, in ruling C-112-93, the Constitutional Court allowed the possibility of establishing limits to collective bargaining, provided that such limits were reasonable and such as to prevent state entities being endangered. In particular, the Court held that agreements could not result in “the destruction, bankruptcy, deterioration or lack of productivity of enterprises, and also that state entities cannot constitutionally grant absurd wages, benefits or privileges beyond the bounds of social reality”.
38. 764. In ruling C-408 of 1994, the Court found section 242 of Act No. 100 of 1993 to be valid. Section 242 provides that, “With effect from the entry into force of the present Act, the retirement scheme applicable to new employees in the health sector may not be recognized or agreed to be retroactive.” In this way, the Court upheld as valid a legislative restriction of collective bargaining on a specific matter which it considered the prerogative of the legislator, despite the fact that the Attorney-General considered it to be unconstitutional because the right of collective bargaining is inalienable. Later, in ruling C-408 of 1994, the Constitutional Court reiterated that the Constitution allowed reasonable exceptions to collective bargaining.
39. 765. Nevertheless, the broad approach taken by the Constitutional Court in previous cases has been restricted in later rulings. Thus, in ruling C-1504-2000, the Constitutional Court found that an act which imposed a limit on collective bargaining was unconstitutional.
40. 766. Subsequently, in ruling C-1187-2000, it held that the Constitution does not establish limits of a temporal nature on collective bargaining, nor does it order that the term of such bargaining is only for one year, for which reason if the law chooses to restrict the term of a collective agreement or a collective accord, that is contrary to the Constitution. In this ruling, the Court held to be unconstitutional a limitation which consisted basically of obtaining authorization from popularly elected bodies for the purposes of collective bargaining in order to ensure its financial viability.
41. 767. It may be concluded from the above that, while the Constitutional Court initially adopted a fairly broad position in relation to limitations on collective bargaining, it subsequently adopted more restrictive positions, for which reason it is not clear whether it is constitutionally possible to limit the right of collective bargaining of pension benefits through a law. In view of the above, the constitutional rules should be clarified and amended so as to establish that collective agreements or accords cannot be concluded in relation to pensions.
42. 768. Finally, it is necessary to examine whether the Legislative Act implies failure to comply with Colombia’s international obligations. In order to be able to assess the constitutional viability of the Legislative Act, and its perfect compatibility with ILO Conventions, it is necessary to analyse whether those Conventions, which were approved by Colombia and form part of its constitutional provisions, prohibit or prevent the denial of collective bargaining on the statutory compulsory pension scheme.
43. 769. Convention No. 87 establishes special protection for citizens who associate in trade unions and contains a series of general provisions requiring States to protect this right to organize. None of the provisions examined constitute an impediment to the inclusion in the Colombian Constitution by a legislative act of a limitation on collective bargaining concerning the compulsory pension scheme. Such an act would not violate or breach the right to organize, which could be pursued in the normal ways and with the protection of the State.
44. 770. Nor does the Collective Bargaining Convention, 1981 (No. 154), contain any provision that might preclude limiting the scope of collective bargaining in the Constitution of the Republic of Colombia in relation to the compulsory pensions scheme established by law. Article 5, paragraph 1, provides that measures adapted to national conditions should be taken to promote collective bargaining. This provision undoubtedly leaves States which have adopted the Convention free to limit the scope of collective bargaining when it concerns compulsory schemes such as pensions, and to allow exceptions which have a major impact on the national budget and equality of workers, in a field as important as retirement pensions.
45. 771. In conclusion, it should be noted that neither of the two Conventions which protect the right to organize and collective bargaining could be an obstacle to establishing in the Constitution, through a legislative act, a restriction on collective bargaining aimed at modifying the general pensions system.
46. 772. As regards the allegations made by the WCL and the CGT concerning the refusal of the Office of the Attorney-General to engage in collective bargaining with SINTRAPROAN, the Government indicates that, in communications Nos. 0259 and 1424 of 19 March and 10 November 2003, and 1633 of 16 December 2004, the Office of the Attorney-General replied fully to the claims of the trade union, explaining the scope of section 416 of the Substantive Labour Code with respect to the limitations placed on trade unions of public servants in submitting claims or concluding collective agreements.
47. 773. The Government indicates that the legal status of public servants encompasses two situations: that of public servants in the executive branch, which is of a legal and statutory nature, and that of official workers, which is of a contractual nature. As the employment relationship of public employees is of a statutory and regulatory nature, it can only be modified by legal provisions of the same standing as those which created it.
48. 774. Under section 414 of the Substantive Labour Code, public employees have the right of association, with the sole exception of members of the national army. However, the functions of these trade unions are limited to advising their members on the defence of their rights, providing legal representation of the interests of trade union members in relation to the authorities, studying the characteristics of the occupation and conditions of employment, and finally submitting respectful petitions. The Constitutional Court held the prohibition imposed by section 416 to be lawful. This restriction is supported by article 55 of the Constitution, which guarantees the right of collective bargaining subject to the exceptions laid down by law, the present Act being one such exception.
49. 775. The Government adds that, in examining the constitutionality of Act No. 411 ratifying Convention No. 151, the Constitutional Court held that the differentiation between official workers and public employees for the purposes of collective bargaining was consistent with the Constitution, indicating that the former enjoy this right in full, while the latter do so in a restricted manner since, although they have the right to seek and achieve agreed solutions in the event of disputes, this may in no way prejudice the power of the authorities to determine terms and conditions of employment unilaterally.
50. 776. The Government indicates that the ruling of the Quindío Administrative Court rejected the action for non-performance instituted by SINTRAPROAN against the failure of the Attorney-General to engage in collective bargaining. In addition, in the ruling of the Council of State which confirms the decision of the Administrative Court, it was concluded that “the Office of the Attorney-General did not have the obligation to engage in a process of collective bargaining to discuss the claims of the trade union, since it could not itself resolve the claims submitted; thus the conduct of the Director of the Office of the Attorney-General is not an unjustified avoidance of a legal duty established in a rule with force of law, and an order for non-performance is thus inadmissible”.
51. 777. The Government adds that the impugned administrative authority based its decision on domestic legislation, the Political Constitution and the texts of Conventions Nos. 87 and 98. In this respect, the ruling of the Quindío Administrative Court of 1 March 2004 recalled that the Council of State, in accordance with the interpretation of the Constitutional Court, found that unions of public employees cannot submit claims to resolve labour disputes which arise in their employment relations with the respective public institutions that employ them, based on the exhaustion of the procedures set out in the Labour Code – direct negotiation, collective agreement and, where appropriate, strikes and arbitration. The Council of State specified that such unions can submit claims intended to improve the conditions of work of public employees and to achieve an agreed solution to these concerns, but without affecting the constitutional competence of the authorities to determine unilaterally the functions and emoluments of this category of official. The right of association, and the possibility for public servants to negotiate terms and conditions of employment, are limited by the statutory and regulatory nature of their relationship. The Constitution of 1991 sets out principles relating to the legal status of public expenditure and conditions of work in the official sector and determines responsibilities, under which only the President of the Republic has the power of decision relating to salaries. The Government adds that the Attorney-General, in response to the above information, indicated that, in accordance with article 1 of the Constitution, it is an obligation to comply with the Constitution and the laws and to respect and obey the authorities, thereby implying unconditional and unlimited compliance with the rulings of judges, in the sense that compliance with judicial decisions is a prerequisite for a welfare State abiding by the rule of law. Consequently, and in accordance with ruling No. 1578 of 14 March of this year, addressed to the Director of the Office of the Regional Attorney of Quindío, the ruling of the court of second instance issued by the Council of State in the appeal lodged by SINTRAPROAN became effective on 23 August 2005.
52. 778. The Government concludes by indicating that, in the light of the Attorney-General’s statement, care has always been taken to engage in dialogue with the trade union and discussions have taken place on conditions of work.
53. 779. With regard to the allegations made by the CGT relating to the alleged anti-union persecution suffered by Carlos Tulio Franco Cuartas, founder member and current leader of SINTRAPROAN, the Government indicates that the Office of the Attorney-General, in accordance with national labour law, set in motion the process for the lifting of the trade union immunity of Carlos Tulio Franco Cuartas, with an indication of the real reason for so doing, and that the application was accepted by the competent judicial authorities on 18 October. At that time, the judicial authorities were not able to serve notice upon Mr Franco Cuartas of the acceptance of the application, which is indispensable for him to be able to exercise his right of defence.
54. 780. In accordance with the Political Constitution of Colombia (article 277, paragraphs 5, “Ensure the diligent and efficient discharge of administrative functions” and 6, “Exercise vigilance over the official conduct of those discharging public functions, including elected functions, exercise disciplinary authority with diligence, order the appropriate investigations and impose the respective penalties in accordance with the law”) and with section 66 of the Single Disciplinary Code, which provides that “The disciplinary procedures established in this law shall be applied by the corresponding internal control agencies and by the Office of the Attorney-General of the Nation”, the Office of the Attorney-General instigated a series of investigations into the public official Carlos Tulio Franco Cuartas for disregarding his official duties, in view of the existence of grounds for the imposition of sanctions in accordance with section 118 of Act No. 200 of 1995. Mr Franco Cuartas acted negligently in failing to discharge the functions allocated to him, including the failure to carry out tasks lawfully assigned to him. Consequently, in accordance with the Political Constitution and the labour legislation, the Office of the Attorney-General applied to the competent authorities for authorization to lift Mr Franco Cuartas’ trade union immunity.
55. 781. In the disciplinary investigations instigated against Mr Franco Cuartas, the Office of the Attorney-General acted in accordance with the constitutional and statutory functions assigned to it, and failing to do so on the grounds that a trade union leader was involved would have amounted to failure to comply with the legal precepts requiring such action. The fact of being a trade union leader does not constitute a legal excuse for omitting to comply with domestic disciplinary legislation. The Government emphasizes that, in the same way that the Office of the Attorney-General discharged its functions in accordance with the law, Mr Franco Cuartas exercised his right of defence, lodging administrative appeals against the action taken by the Office of the Attorney-General.

C. The Committee’s conclusions

1. 782. The Committee observes that the present case refers to allegations relating to: (1) the limitation of the right of collective bargaining by virtue of the recent amendment of article 48 of the Constitution relating to social security by Legislative Act No. 1 which establishes that, with effect from its entry into force, accords, collective agreements and awards may not be established containing conditions relating to pensions which differ from those established in Act No. 100 of 1993, that all special schemes will lapse on 31 July 2010 and that all pensions-related provisions established in agreements, accords or awards shall be maintained for the agreed time, but that in any case they shall cease to have effect as of 31 July 2010; and (2) the refusal of the National Office of the Attorney-General to engage in collective bargaining with SINTRAPROAN.
2. 783. With respect to the allegations relating to the limitation placed on the right of collective bargaining, by virtue of the recent adoption of Legislative Act No. 1 of 22 July 2005, which amends article 48 of the Constitution in relation to social security, the Committee notes that, according to the complainant organizations, section 1 of the Legislative Act provides that pension arrangements other than those set out in the law cannot be established by accords, collective agreements or awards of any kind; section 2 eliminates as of 31 July 2010 any special scheme, except that of the President of the Republic and members of the forces of order and, under section 3, existing accords or agreements which contain clauses relating to pensions shall remain valid, but shall in any case lapse on 31 July 2010.
3. 784. The Committee notes that, according to the complainant organizations, this new system considerably limits the right of collective bargaining of trade union organizations and disregards trade union autonomy and the will of the workers to improve their standards of living. The Committee also notes that, according to the complainant organizations, the amendment to the legislation runs counter to the popular will, which was expressed in a referendum on the subject.
4. 785. The Committee notes that, according to the Government, the regulation of pensions is not an issue directly related to conditions of work, as it more properly concerns the post-employment period and, in that sense, does not fall within the purpose of Conventions Nos. 98 and 154, but rather of other Conventions which establish the possibility for States to regulate or legislate on pensions-related issues. The Committee notes that, according to the Government, the question of pensions affects the whole population and for that reason cannot be regulated by agreement. In addition, since the adoption of the 1991 Constitution, the system in which pensions were a consequence of the employment relationship was replaced by one under which social security is a public service guaranteed to everyone, subject to the principles of efficiency, universality and solidarity. The Government also indicates that the State must have the possibility of establishing a universal non-discriminatory scheme which is financially sustainable.
5. 786. The Committee notes the explanation provided by the Government concerning the crisis facing the pensions system and the successive measures adopted to alleviate it. It also notes that demographic changes in the country are having a major economic impact on the pensions system.
6. 787. The Committee notes that, with regard to the limitation imposed on collective bargaining in particular, the Government indicates that the Constitution establishes in article 55 that collective bargaining may be exercised within the “limitations established by the law”, and in that sense it is not contrary to that provision for the legislation to limit the scope of collective bargaining by providing that it may not determine issues relating to pensions. The Committee also notes that the Constitutional Court in its most recent rulings has not supported this limitation of collective bargaining and it was therefore necessary to amend article 48 of the Constitution directly. Finally, the Committee notes that, in its ruling of 14 June 2006, the Constitutional Court declared itself incompetent to rule on the appeal to find Legislative Act No. 1 unconstitutional.
7. 788. The Committee observes firstly that, although the adoption by the Government of a new pensions system is outside its competence, it can nevertheless examine the extent to which in so doing the principles of freedom of association, and in particular the right of collective bargaining, have been respected.
8. 789. In the first place, the Committee is bound to recall that the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 925].
9. 790. Notwithstanding that questions concerning social security fall outside of its competence, the Committee observes that the new legislation produces effects on collective bargaining that are both retroactive and affect the future, as section 3 of the Legislative Act establishes that, although accords, agreements or awards concluded prior to its entry into force which establish conditions on pensions are valid, they will in any event lapse on 31 July 2010.
10. 791. As regards agreements concluded prior to the entry into force of the legislation, the Committee considers that a legal provision which modifies unilaterally the content of signed collective agreements, or requires that they be renegotiated, is contrary to the principles of collective bargaining, as well as the principle of the acquired rights of the parties.
11. 792. In addition, it is necessary to take into account the real nature of collective bargaining, which implies both a give-and-take process and a reasonable certainty that negotiated commitments will be honoured, at the very least for the duration of the agreement, such agreement being the result of compromises made by both parties on certain issues, and of certain bargaining demands dropped in order to secure other rights which were given more priority by trade unions and their members. If these rights, for which concessions on other points have been made, can be cancelled unilaterally, there could be neither reasonable expectation of industrial relations stability, nor sufficient reliance on negotiated agreements [see Digest, op. cit., para. 941]. Thirdly, the bargaining partners are best equipped to weigh the justification and determine the modalities of such negotiated retirement clauses. In these circumstances, the Committee concludes that agreements previously negotiated should continue to produce all their effects, including those concerning pensions, until their expiry date, including after 31 July 2010. It requests the Government to take appropriate corrective measures, and to keep it informed of developments in this respect.
12. 793. With regard to agreements concluded after the entry into force of Legislative Act No. 1, the Committee considers, firstly, that a general pension system does not necessarily preclude collective bargaining. Indeed, although the general system establishes a compulsory minimum guaranteed platform for the population as a whole, there is nothing to prevent a supplementary scheme being established by collective bargaining in addition to the general system. The Committee considers that it is necessary to draw a distinction between private companies and the public sector. In the case of the former, the employer may negotiate a possible award of a supplementary pension with the trade union, taking into account its economic possibilities and prospects.
13. 794. The Committee notes that according to the Government, Article 5, paragraph 1, provides that measures adapted to national conditions should be taken to promote collective bargaining. The Government contends that this provision leaves States which have ratified the Convention free to limit the scope of collective bargaining when it concerns compulsory schemes such as pensions, and to allow exceptions which have a major impact on the national budget and equality of workers, in a field as important as retirement pensions. In this respect, the Committee considers that, in accordance with the provisions of Convention No. 154, collective bargaining in the public service may be subject to particular methods of application. The Committee is aware that collective bargaining in the public sector calls for verification of the available resources in the various public bodies or undertakings, that such resources are dependent on state budgets, which does not preclude, as stated by the Committee of Experts, the competent budgetary authority from fixing an overall budgetary “package” within the framework of which the parties may negotiate pension clauses. It is essential, however, that workers and their organizations be able to participate fully and meaningfully in designing this overall bargaining framework, which implies in particular that they must have access to all the financial, budgetary and other data enabling them to assess the situation on the basis of the facts [see Digest, op. cit., paras 1037 and 1038].
14. 795. In any event, in both the private and the public sectors, the Committee considers that any limitation on collective bargaining by the authorities should be preceded by consultations with employers’ and workers’ organizations, in order to seek the agreement of both. In this regard, the Committee observes that, according to the complainants’ allegations, the reform of the legislation was undertaken despite the opposition of the social partners, expressed in a referendum. The Committee notes that, despite the request that it made to the Government and the complainant organizations in March 2006 to provide additional information on the above referendum, no communication has been received on this subject. In these circumstances, the Committee requests the Government, taking into account 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 pensions with the interested parties in order to find a negotiated solution acceptable to all the parties concerned, in accordance with the Conventions on freedom of association and collective bargaining ratified by Colombia.
15. 796. With regard to the allegations relating to the refusal of the National Office of the Attorney-General to engage in collective bargaining with the SINTRAPROAN, the Committee notes that, despite the petitions presented by the trade union, the Office of the Attorney-General has refused up to now to start negotiations, and that for that reason SINTRAPROAN instigated legal action under article 55 of the Constitution on collective bargaining, and Acts Nos. 411 and 524 approving Conventions Nos. 151 and 154, respectively, which was refused by the Quindío Administrative Court, a decision which was upheld by the Council of State in March 2005.
16. 797. The Committee also notes that, according to the Government, there is a difference in Colombian law between official workers and public employees. The former are bound by contract and can bargain collectively, while the latter are bound by statute, which means that their conditions of work are established by law and regulations and in consequence they cannot bargain collectively since that would affect the power of the authorities to determine terms and conditions of employment unilaterally. This category of workers only has the power to submit respectful petitions.
17. 798. In this respect, the Committee recalls that it has examined allegations relating to the refusal to bargain collectively in the public sector in Colombia on numerous occasions and that it has considered that, although certain categories of public servants should already enjoy the right to collective bargaining, in accordance with Convention No. 98, the promotion of that right was generally recognized for all public servants with the ratification of Convention No. 154 on 8 December 2000 and, in consequence, workers in the public sector and the central public administration should enjoy the right of collective bargaining. In these circumstances, recalling that special modalities of application may be fixed for collective bargaining in the public service, but at the same time maintaining that the mere possibility of submitting respectful petitions is not sufficient to consider that there is a true right of free and voluntary collective bargaining, the Committee requests the Government to take the necessary measures to ensure observance of the right of collective bargaining of public servants in accordance with the provisions of Conventions Nos. 98 and 154, ratified by Colombia.
18. 799. With regard to the allegations concerning the persecution through successive disciplinary procedures of Mr Franco Cuartas, founder member and leader of SINTRAPROAN, the Committee notes the Governments’ indication that Mr Franco Cuartas failed to discharge the obligations arising out of his official function, which gave rise to disciplinary proceedings. The Committee observes that these disciplinary proceedings occurred in parallel to the action instigated by Mr Franco Cuartas with a view to the establishment of the union and to obtaining the right to collective bargaining for officials in the Office of the Attorney-General. Under these circumstances, and so as to be able to reach its conclusions in full knowledge of the facts, the Committee requests the Government to take the necessary measures for an investigation to be carried out into the allegations and circumstances leading to Mr Franco Cuartas leaving his job, with the investigation being carried out by an independent person who enjoys the confidence of the parties. If these allegations are found to be true, the Committee requests the Government to take the necessary measures to reinstate Mr Franco Cuartas and to put an end to disciplinary proceedings against him. The Committee requests the Government to keep it informed in this respect.
19. 800. In relation to the alleged dismissal of Luis Carmelo Cataño Cataño, Carlos Romero Aguilar, Francisco Molina and Silvio Elías Murillo, despite enjoying trade union immunity, and in the case of Mr Murillo, despite the Chocó Administrative Court ordering his reinstatement, the Committee notes that the Government has not provided its observations on this subject and requests it to do so without delay.