Supreme Court of Justice, R y R. asociados S.A. v. national trade union of workers in the cork, plastics, polyethylene, polyurethane, synthetics, components and derivatives processing industry, 27 August 2014, Case No. 59413
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
Direct resolution of a dispute on the basis of international law
Work of international supervisory bodies1
Work stoppage/ Strike action/ Reference to international law to strengthen a decision based on domestic law
The enterprise lodged an appeal requesting that the strike held by the trade union be declared illegal since it did not comply with the legal requirements for embarking on strike action. The enterprise alleged that it had gone into liquidation but that it was still paying wages on time; however it had been unable to comply with its social security payment obligations.
In its defence, the trade union argued that their action had not taken the form of a strike in the context of a collective labour dispute but a work stoppage which was the fault of the employer, which had not met its social security contributions.
The Supreme Court indicated that the legislation recognized four types of work stoppages, including stoppages undertaken due to the failure of an employer to comply with their labour and social security obligations. The Court also underlined that all work stoppages must comply with the general requirements of being carried out in an orderly and peaceful manner. In this respect, the Court pointed out that:
“The ILO Committee on Freedom of Association has repeatedly maintained that the legitimate exercise of freedom of association does not encompass abuses of the right to strike in its exercise, such as criminal acts.”2
The Court considered that the prior requirements for embarking on a work stoppage did not signify support for a failure to comply with obligations on the part of employers; rather, they were a guarantee of the employer’s right to defence, since otherwise the employer would not have the right to contest or find ways of resolving the failure to meet their obligations. The Court highlighted that on this issue the Committee on Freedom of Association had stated as follows:
“The obligation to give prior notice to the employer before calling a strike may be considered acceptable.”3
Given that the trade union had not proved that they had complied with the legal requirements for embarking on the stoppage, the Court, making use of the work of the Committee on Freedom of Association to strengthen its decision, declared the work stoppage to be illegal.