Ratified treaties;¹ Work of international supervisory bodies²

Freedom of association/ Recommendations of the Committee on Freedom of Association/ Trade union protection/ Direct resolution of a dispute on the basis of international law

The complainants lodged an action filing for legal protection (tutela) as they considered that the “Instituto Nacional Penitenciario y Carcelario (INPEC)” (National Penitentiary and Prison Institute)  had breached their fundamental rights to work, to organize, and to freedom of association. They claimed that the aforementioned breach occurred when, following the registration of the “Asociación Sindical de Empleados del Instituto Nacional Penitenciario y Carcelario (ASEINPEC)” (Trade Union Association of Employees of the National Penitentiary and Prison Institute), the defendant proceeded to dismiss its leaders without just cause and the prior authorization required when dismissing employees that enjoy trade union protection. The institution then proceeded to terminate the employment contracts of another 81 union members. Having embarked on several legal proceedings with negative results, the case was brought before the Committee on Freedom of Association of the ILO’s Governing Body. In its interim recommendations and based on the ILO ConventionNo. 87, the Committee called on the State to take the necessary measures to reinstate the trade union leaders of the Medellín branch and ensure the payment of unpaid wages.³ As this was a recommendation and not a legal decision, the INPEC refused to comply.

The Court held that it was pertinent to examine this case since although the process involved some judgements with the force of res judicata, the fact that there was a new factual situation (the recommendation of the ILO Committee on Freedom of Association that was being ignored) made it possible to carry out a new examination of the case. In its analysis the Court indicated that: 

“The Committee on Freedom of Association is an ILO governing body committee. It compares actual situations arising or internal rules of States with applicable international standards according to the treaties ratified by the States concerned (in this case, the ILO Constitution and Conventions on freedom of association). It then makes recommendations and submits them to the Governing Body, as the body with the power to make binding recommendations in accordance with the rules governing the Organization. (...) this recommendation therefore constitutes an express order that is binding for the Colombian government. 

[...] This obligation arises from the commitments undertaken by the Colombian State on an international level [...] ILO Conventions Nos. 87 and 98 on freedom of association and the right to organize must be observed and fulfilled by Colombia, which must evidently comply with the provisions of the supervisory bodies of the International Labour Organization, whose decisions must also be complied with as they form part of the Constitution of that organization.”⁴ 

In light of ILO Conventions Nos. 87 and 98 and the recommendations of the ILO Committee on Freedom of Association, the Court proceeded to grant protection to the rights of the complainants forming part of the trade union’s leadership, ordering their reinstatement and the payment of lost wages and benefits.

¹ ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

² ILO Committee on Freedom of Association.

³ ILO Committee on Freedom of Association. Report of June 2002 (No. 328), Case No. 2068.  Available at http://www.ilo.org/public/english/standards/relm/gb/docs/gb284/pdf/gb-8.pdf

⁴ P. 17 of the decision.