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Cablegate: Judicial Sector Workers Barred From Striking

VZCZCXYZ0000
RR RUEHWEB

DE RUEHBO #3537/01 3481745
ZNR UUUUU ZZH
R 141745Z DEC 09
FM AMEMBASSY BOGOTA
TO RUEHC/SECSTATE WASHDC 1576
INFO RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC
RHMFIUU/CDR USSOUTHCOM MIAMI FL
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC
RHMFIUU/FBI WASHINGTON DC
RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RUEAIIA/CIA WASHINGTON DC
RUEHBO/AMEMBASSY BOGOTA
RUEHBR/AMEMBASSY BRASILIA
RUEHC/DEPT OF LABOR WASHINGTON DC
RUEHCV/AMEMBASSY CARACAS
RUEHGL/AMCONSUL GUAYAQUIL
RUEHPE/AMEMBASSY LIMA
RUEHQT/AMEMBASSY QUITO
RUEKJCS/SECDEF WASHINGTON DC

UNCLAS BOGOTA 003537

SENSITIVE
SIPDIS
USTR FOR EISSENSTAT AND HARMAN
DOL FOR ZOLLNER AND QUINTANA

E.O. 12958: N/A
TAGS: ELAB EAID ETRD PGOV PHUM PREL USTR LAB CO
SUBJECT: JUDICIAL SECTOR WORKERS BARRED FROM STRIKING

REF: BOGOTA 1751

SUMMARY

-------

1. (SBU) On November 11 the Colombian Supreme Court ruled that a
2008 strike by 38,000 members of the National Association of
Judicial Branch Employees (ASONAL JUDICIAL) over remuneration and
judicial independence was illegal. The ruling has renewed debate
over restrictions on the right of public sector workers to
associate, negotiate, and strike (reftel). It also gave the GOC a
clear edge in ongoing discussions with ASONAL and other public
sector labor groups. ASONAL plans to present the matter before the
International Labor Organization (ILO), and possibly the
Inter-American Commission of Human Rights (IACHR). End Summary.


GOC INVOKES SPECIAL POWERS TO SQUELCH THE STRIKE

--------------------------------------------- ---

2. (SBU) Some 38,000 strikers (90% of the sector) paralyzed the
judicial branch for 44 days in September and October 2008.
Consequently, according to the Ministry of Interior and Justice
(MOIJ), 2,700 suspects had to be released; 121,000 legal
proceedings halted; and 25,000 court hearings postponed. On
October 7, 2008, the GOC unilaterally decreed $56.6 million in pay
increases over two years (Decrees 3899-3902), claiming that was the
most it could afford without endangering state finances. This
failed to induce ASONAL to lift the strike, however, and on October
9 President Uribe declared a 90-day national state of emergency,
giving the GOC special powers to fire and replace striking workers.
The move broke the strike, though ASONAL continued to press its
demands and threaten subsequent strikes.

3. (SBU) The MOIJ has met with ASONAL on eight occasions in 2009,
with little headway according to ASONAL President Fabio Hernandez.
The GOC's response has been firm and consistent: "We are in a
financial crisis; there is no money." In a September letter to
ASONAL, Minister of Interior and Justice Fabio Valencia Cossio said
that while the GOC remained open to dialogue, it had already
fulfilled its promises to ASONAL. Hernandez said the "financial
crisis" has in part resulted from disproportionate GOC spending on
defense and its ongoing war against the FARC.

MOTIVES BEHIND THE 2008 STRIKE

------------------------------

4. (SBU) Hernandez said ASONAL's top priorities since 2006 have
been better remuneration and greater judicial independence. The
judicial sector budget, he argued, has lagged behind public demand
for justice in pending cases, leaving workers (judges, prosecutors,
and court staff) underpaid and overworked and creating bottlenecks
in the system. ASONAL has called for full implementation of a new
salary scheme pursuant to a 1992 law that has only been partially
enforced due to budgetary shortfalls. Full implementation would
require an outlay of $260 million, though ASONAL said it would
accept an initial $99 million in worker bonuses "to kick-start the
process."

5. (SBU) Hernandez told us that the executive branch interferes in
judicial processes by cajoling workers with fixed-term contracts
into supporting its interests. Most judicial workers have

fixed-term contracts renewable subject to periodic performance
reviews, while political appointees dominate the sector's upper
echelons. As such, workers who refuse to toe the political line
risk losing their jobs when their contracts expire, rendering them
susceptible to political pressure. ASONAL has sought indefinite
contracts under the formula that "greater job security equals
greater independence."

WIDER IMPLICATIONS FOR PUBLIC SECTOR WORKERS

--------------------------------------------

6. (SBU) The November 11 Supreme Court ruling upheld a lower court
decision that the 2008 strike by ASONAL was illegal because
judicial workers provide an "essential public service." The ruling
cited Article 56 of the Constitution and Article 125 of the
Statutory Judicial Administration Law, which "guarantees the right
to strike, except in essential public services as defined by law,"
and states that "the administration of justice is an essential
public service," respectively.

7. (SBU) The ruling represents a clear victory for the GOC with
implications for all public sector workers. ASONAL's threat to
shut down the judicial branch again was immediately deflated.
Colombian law permits employers to summarily fire participants in
illegal strikes (reftel), which impinges ASONAL's ability to
mobilize workers. Other public sector workers, prominent among
them educators and healthcare providers, are also likely to shy
away from strike brinkmanship. Minister Valencia Cossio summarized
the GOC point of view in a statement carried by leading daily El
Tiempo on November 11: "The Supreme Court has reiterated what we
have said for a year, that justice is an essential public service,
and that strikes and collective bargaining are prohibited by law in
the public sector."

LABOR CLAIMS THE RULING WAS POLITICAL

-------------------------------------

8. (SBU) Supreme Court magistrates refused to hear the case, citing
the inherent conflict of interest. Instead, five
specially-appointed "assistant judges" (private sector lawyers kept
on reserve for such occasions) took the case. Although the Supreme
Court appointed the assistant judges, labor groups have suggested
that they were Uribe loyalists.

9. (SBU) Rhett Doumitt and Carlos Guarnizo of the AFL-CIO
affiliated Solidarity Center in Colombia have criticized the
court's failure to consider the full body of constitutional law in
its ruling. The court only invoked articles upholding the GOC's
position, while ignoring others that contradicted it, Doumitt and
Guarnizo suggested. For example, Articles 53 and 93 of the
Constitution provide that "ratified international agreements
concerning employment form part of domestic legislation," and that
"ratified treaties and agreements recognizing human rights and
prohibiting their limitation in states of emergency shall prevail
over domestic law." As such, the Solidarity Center argues that a
responsible analysis demands mention of ILO Conventions 98, 151,
and 154 (all ratified by Colombia), which guarantee the rights of
all workers, including in the public sector, to bargain
collectively and strike.

10. (SBU) Reconciling domestic labor laws with ILO Conventions is a

hotly-debated topic centering on rival interpretations of the ILO's
definition of "essential public services." The ILO defines
essential public services as those whose interruption would
"endanger the life, personal safety or health of a whole or part of
the population," which provides a rationale for prohibiting
strikes. The GOC interprets this loosely to mean most, if not all,
public services, preserving what it calls Colombia's "sovereign
right" to consider the matter on a sector-by-sector basis. The
result is a near-complete prohibition on collective bargaining and
strikes among public sector workers, according to National Union
School Director Jose Luciano Sanin. As such, labor groups advocate
a more sophisticated interpretation on the premise that essential
public services can still be rendered during a strike. For
example, hospital administrators should be allowed to strike if
doctors continue to provide essential medical services. Vice
Minister of Labor Ricardo Andres Echeverri said the GOC is refining
its definition of essential public services, but that it was
complicated and would take time.

ASONAL WILL APPEAL TO INTERNATIONAL INSTITUTIONS

--------------------------------------------- ---

11. (SBU) Hernandez confirmed that ASONAL will appeal the court
ruling to the ILO, and consider taking the matter before the IACHR.
Still, he acknowledged that the process would take years. In the
interim, ASONAL will continue to press its demands through the
so-called "mesa de concertacion" (coordination roundtable) created
by Presidential Decree 535 in February, 2009. The decree
guarantees public sector workers an audience for their grievances
to appease public sector labor groups who complained that their
employers refused to even meet with them. Labor groups told us,
however, that the mechanism lacks teeth because it does not
obligate employers to actually negotiate.
NICHOLS

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