Supreme Court of Justice, Employment Appeals Chamber (Sala de Casación Laboral), Luz Marina Díaz v. the Municipality of Bello, 25 June 2009, Case No. 36108
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.
Direct resolution of a dispute on the basis of international law
Collective bargaining/ Public employee/ Official worker/ Direct resolution of a dispute on the basis of international law
The claimant was a public employee working for the Secretariat of the Government of the Municipality of Bello as of 1976. She requested the respondent entity to award and pay her retirement pension as set out in the collective labour agreement (period 1975-1977), which the trade union she was a member of was party to. The Municipal Government refused to award the pension, arguing that the collective agreement solely covered “official” workers,2 and not public employees.
In the first and second instance the claimant’s application was rejected. The claimant then lodged an appeal (casación) based on factors including a breach of the Constitution and the ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Labour Relations (Public Service) Convention, 1978 (No. 151) and Collective Bargaining Convention, 1981 (No. 154). The Court considered that the application had been rejected in compliance with the law, since article 467 of the Substantive Labour Code states that it is the collective agreement that establishes the conditions governing employment contracts, and that in this agreement the public administration solely contracted official workers. In order to reinforce its decision, the Court cited article 416 of that Code, which does not afford the trade unions of public employees the right to submit lists of demands or participate in collective agreements, rights reserved solely for official workers. Finally, the Court indicated that the aforementioned regulations respected the provisions of ILO Conventions Nos. 151 and 154:
“In this respect, it is clear that public employee trade unions do not have the legal possibility of embarking on a collective dispute to discuss wage increases or any other benefits related to the employment situation of its members by means of a collective bargaining process, while the establishment of wage and benefit schemes of these workers are expressly fixed at a national level by the Colombian Congress, as set out in the Constitution.
This does not contravene ILO Conventions Nos. 151 and 154 […] since those international instruments enshrine collective bargaining for public employees as one of the options that may be adopted by the competent national authority, as well as a desirable measure to be employed by organizations representing public employees to participate along with the competent public authorities on establishing working conditions and resolving labour disputes […] Moreover, Article 1.3 of ILO Convention No. 154 leaves the possibility open for public administrations, legislation or national practice to establish specific means of applying that Convention.”3
The Court concluded that, in the light of ILO Conventions Nos. 151 and 154, the restrictions imposed on the right to collective bargaining established in national legislation did not represent a repudiation of the claimant’s rights and, therefore, their claim was rejected.
2 In Colombia, civil servants are divided into three groups: publicly elected civil servants; public employees engaged in the administration of the state; and official workers engaged by means of a work contract.