Supreme Court of Justice, Employment Appeals Chamber (Sala de Casación Laboral), CBI Colombiana S.A v. Petroleum Industry Workers’ Trade Union (USO), 10 April 2013, Case No. 59420
Political Constitution of the Republic of Colombia
(...) The international labour Conventions, duly ratified, form part of domestic legislation (…).
Article 93, paragraph 1
The international treaties and conventions ratified by Congress that recognize human rights and prohibit their restriction in states of emergency prevail in domestic order. The rights and duties consecrated in this Charter shall be interpreted in accordance with the international treaties on human rights ratified by Colombia.
Right to strike
Reference to international law to strengthen a decision based on domestic law
Right to strike/Principle of the legality of strike action/Exercise of the right to peaceful strike/Collective bargaining/Reference to international law to strengthen a decision based on domestic law
This dispute originated from the request for a strike held by employees of the enterprise CBI Colombiana S.A. at its refinery in Cartagena to be declared illegal. According to the claimant, the strike was initiated by the members of the Petroleum Industry Workers’ Trade Union (USO) with the aim of obtaining an extralegal bonus. The enterprise claimed that violence was used during the work stoppage and that the strike took place without previously exhausting the negotiation procedure stipulated by law. The USO claimed that it had not initiated the strike, stating that the action was initiated by employees and that the trade union had acted solely as a mediator.
Based on witness, documental and recorded evidence, the Court ruled that the trade union had been involved in the work stoppage and that it was therefore pertinent to determine whether the strike had been legal or illegal. The Court began its analysis by drawing a distinction between strike action called within a collective bargaining process following the exhaustion of the direct negotiations phase and strike action called due to the non-compliance of an employer with their employment obligations, the strike in question in this dispute being of the latter type, since there was no negotiation process seeking an agreement in progress in this case. The Court then indicated that the legitimacy of strike action is determined by its observance of the legal requirements in force, and its peaceful exercise in accordance with the provisions of the Substantive Labour Code and ILO Convention No. 87:
“Work stoppages are considered legitimate when they respect the law and are carried out in a peaceful manner. With respect to the first of these points, Article 8.1 of ILO Convention No. 87 establishes that: ‘In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.’”
Having pointed out that both international legislation and ILO Convention No. 87 require respect for the law when initiating a work stoppage, the Court examined the requirements to be fulfilled before strike action could be initiated in accordance with the Substantive Labour Code. The Court concluded that the correct procedure had not been followed, and that, furthermore, violence had been used. Given the above, the Court declared the strike illegal.