Ratified treaties;¹ Instruments not subject to ratification;² Work of international supervisory bodies³ 

Right to strike/ Protection against anti-union discrimination/ Anti-union dismissals as the result of the declaration of illegality of a strike by the administrative authority/ Direct resolution of a dispute on the basis of international law/ Direct application of international law to waive a national provision less protective towards workers

Workers made application for jurisdiction for having been dismissed for participating in a strike that was declared illegal by the administrative authority, demanding reintegration into their jobs.

This case had already been studied by the ILO Committee on Freedom of Association, which made a recommendation urging the Government to reintegrate the workers into their jobs, workers who were dismissed for having participated in the strike mentioned earlier.⁴ In order to justify their claim, the applicants submitted the recommendation of the Committee on Freedom of Association.

However, the request was refused and deemed unfair, arguing that the trade union had already exhausted all the ordinary instances. Furthermore, the Court denied it, based on the non-obligatory nature of the application of the ILO Recommendations. Faced with this situation, the workers insisted on their claim and made this application for protection.

In order to determine whether dismissal for participating in a strike that had been declared illegal by the administrative authority would constitute anti-union dismissals in violation of the National Constitution,⁵ the Constitutional Court applied ILO Conventions Nos. 87 and 98.⁶ The Court considered that when the administrative authority declared the strike illegal, the workers were deprived of the guarantee of impartiality and protection against anti-union discrimination.

At the same time, the Court statted that “(…) [The Committee on Freedom of Association] is the body that can make recommendations of binding character according to the norms that govern the Organization.”

Likewise, it added that “Colombia is obligated, in virtue of the position as State Party to the ILO Constitution, to respect the recommendations of the Governing Body.”

The Court, in order to base its decision concerning the anti-union dismissal, stated the following:

“(…) the trade union was excluded from the verification of the strike that was carried out by the Ministry for Labour and Social Security with the participation of the employer, but not the workers. (…) that action violates the right of participation of the workers affiliated with the trade union (of both those that participated in the strike as well as those that did not) and of the applicant trade union, as well as ILO Conventions Nos. 87 and 98, which form part of the block of constitutionality.

(…) the ILO Constitution and Conventions Nos. 87 and 98 concerning freedom of association (treaty and conventions duly ratified by Congress, which describe rights that cannot be suspended, even under states of emergency), shall also be included, in addition to the articles of the Universal Declaration of Human Rights, the International Covenant of Rights Economic, Social and Cultural and the American Convention on Human Rights. They were faced with Articles 430 and 450 of the Labour Code on which the dismissal was based and, of course, the recommendation of the International Labour Organization’s Committee on Freedom of Association.”

As a result, the Constitutional Court of Colombia applied ILO Conventions Nos. 87 and 98, as well as the recommendation of the Committee on Freedom of Association in order to determine violation of the National Constitution. On this basis, the Court declared the dismissals null and ordered reintegration of the dismissed workers as well as the recognition of the salaries and benefits that they did not receive.

¹ ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ILO Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98); International Covenant on Economic, Social and Cultural Rights, 1966; American Convention on Human Rights (“Pact of San José, Costa Rica”), 1969.

² ILO Constitution, 1919; Universal Declaration of Human Rights, 1948.

³ ILO Committee on Freedom of Association.

⁴ Complaint against the Government of Colombia submitted by the Trade Union of Workers of Medellín Municipal Enterprises (EEVVMM) (See ILO: Report of the Committee on Freedom of Association, Case No. 1916, Report No. 309, Official Bulletin, Vol. LXXXI, 1998, Series B, No. 1, para. 105).

⁵ Articles 39 and 56 of the Constitution of Colombia expressly establish the right of association, formation of trade unions and striking, while Articles 53 and 93 of the Constitution expressly state that international labour Conventions form part of domestic legislation granting precedence in the domestic order to the international treaties concerning human rights.

⁶ According to the Constitution of Colombia, duly ratified international labour Conventions form part of domestic legislation (Article 53) and the international treaties and conventions ratified by Congress, that recognize human rights and prohibit their limitation in states of emergency, shall prevail in domestic order (Article 93). As can be seen, the treaties on human rights are integrated into domestic regulation with higher hierarchy.