Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Colombia (Ratification: 1976)

The Committee notes the Government's report and recalls that its previous comments referred to:

- lack of protection against acts of anti-union discrimination for workers who belong to mixed organizations (of public employees "empleados públicos" and official workers "trabajadores oficiales"), (sections 57 and 58 of Act No. 50 of 1990);

- the ban on the negotiation of collective agreements by organizations of public employees (sections 414(4) and 416 of the Labour Code).

It must be stressed that in Colombia, public servants are either "public employees" or "official workers". The former are nominated and terminated unilaterally, their relations with the public administration are regulated by statute, they have no right to negotiate collectively their terms and conditions of employment, even though they are not public servants in the administration of the State in the sense of Article 6 of the Convention. The latter generally are employed in the commercial and industrial state enterprises, have contractual relations with the administration and can bargain collectively.

With regard to the issue of anti-union discrimination, the Government states that although public employees may join mixed organizations and hold trade union office, pursuant to section 409 of the Labour Code, they do not enjoy trade union immunity. Official workers belonging to mixed unions, on the other hand, do benefit from trade union immunity.

The Committee recalls that all public employees who are not engaged in the administration of the State should be covered by the protection against acts of anti-union discrimination. It asks the Government to take measures to ensure that its legislation is amended along the lines mentioned above.

With regard to the right of collective bargaining of public employees, the Government again states that Presidential Directive No. 38 of 26 December 1990 maintains the prohibition placed on public employees from concluding collective agreements (section 416 of the Labour Code).

In this connection, the Committee recalls once again that under section 414(4) of the Code, one of the functions of unions of public employees is to submit to the appropriate heads of the administration humble petitions containing requests concerning all its members, but not draft collective agreements. The Committee is bound to stress that when it ratified the Convention, the Government accepted that it had to take steps to encourage and develop voluntary negotiation between the social partners, which means that it must refrain from intervening in such a way as to restrict the exercise of this right. The Committee therefore asks the Government to take measures, in consultation with the social partners, to amend the legislation so that "public employees" with the possible exception of those engaged in the administration of the State enjoy the guarantees laid down in the Convention regarding the right of workers to negotiate collectively their terms and conditions of employment.

The Committee asks the Government in its next report to provide information on any changes in the legislation in this respect.