Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Colombia (Ratification: 1976)

The Committee notes the Government’s report and the discussions in the Conference Committee on the Application of Standards in June 2000. The Committee also notes the report of the direct contacts mission which visited the country in February 2000 and the report of the Committee on Freedom of Association on the various cases pending concerning Colombia, which was  adopted by the Governing Body at its session in May-June 2000.

In the first place, the Committee notes with deep concern the climate of violence which exists in the country and, in particular, the conclusions of the Committee on Freedom of Association in Case No. 1787 in which it is stated that "the scale of murders, kidnappings, death threats and other violent acts against trade union officials and members is unprecedented in history" (see 322nd Report of the Committee on Freedom of Association, paragraph 24). Furthermore, the Committee notes from the report of the direct contacts mission that "in general the status of trade union leader is a fundamental factor in these assassinations" (see 322nd Report, Annex, paragraph 4 of the conclusions). In this respect, the Committee of Experts considers that the guarantees set out in international labour Conventions, in particular those relating to freedom of association, can only be effective if the civil and political rights enshrined in the Universal Declaration of Human Rights and other international instruments are genuinely recognized and protected (see 1994 General Survey on freedom of association and collective bargaining, paragraph 43).

The Committee notes the observations made by the Union of Maritime Transport Industry Workers (UNIMAR) indicating that the merchant marine, the Grandcolombiana Federation of coffee producers and maritime transport do not pay the trade union dues which have been checked off, dismiss trade union leaders and withhold their wages, dismiss workers who attend trade union meetings and block trade union funds, and the Committee requests the Government to make its comments in this respect. The Committee also notes the observations made to the direct contacts mission by the Single Confederation of Workers of Colombia (CUT), the General Confederation of Democratic Workers (CGTD) and the Confederation of Workers of Colombia (CTC) objecting to certain provisions in the Labour Code.

The Committee notes with satisfaction the adoption of Act No. 584 of 13 June 2000 which repeals or amends the following provisions upon which the Committee has been commenting for many years:

-  section 365(g) of the Labour Code on the requirement, for a trade union to be registered, that the labour inspector must certify that there is no other union (repealed);

-  section 380(3) of the Labour Code, which provides that "any member of a trade union executive who has been responsible for the dissolution of a union as a sanction may be denied the right of trade union association in any form for up to three years (...)" (repealed);

-  section 384 of the Labour Code on the requirement that, in order to form a union, two-thirds of its members must be Colombian (repealed);

-  section 388(1)(a) of the Labour Code on the need to be of Colombian nationality to hold executive office in a trade union (amended; the new wording provides that "in no case may the executive board be composed in its majority of non-nationals");

-  section 388(1)(c) of the Labour Code on the requirement to have normally exercised the activity, trade or position covered by the trade union in order to be a trade union official and section 388(1)(f) which provides that a person must not have been given a serious sentence, unless he or she has been rehabilitated, nor sued for ordinary offences at the time of election (amended to leave it to the trade union organization to determine in its rules the requirements, in addition to membership of the trade union, for membership of the executive of a trade union);

-  section 422(1)(c) of the Labour Code on the need to have exercised the activity, occupation or position covered by the trade union in order to hold office in a federation or confederation and section 422(1)(f) which provides that a person must not have been given a serious sentence, unless he or she has been rehabilitated, nor sued for ordinary offences at the time of election (amended to leave it to the trade union organization to determine in its rules the requirements, in addition to active membership of the trade union, federation or confederation, for holding executive office in a federation or confederation);

-  section 432(2) of the Labour Code on the need to be of Colombian nationality in order to be a member of a delegation submitting the list of claims made to an employer (amended to remove the requirement of being Colombian);

-  section 444, last subsection, of the Labour Code on the presence of the authorities at general assemblies convened to vote on referral to arbitration or the calling of a strike (amended to leave it to the trade union organization to determine whether or not the labour authorities should be present);

-  section 448(3) of the Labour Code, which provides that "when a strike is called, the Minister of Labour and Social Security, ex officio or at the request of the trade union or trade unions representing the majority of workers at the enterprise, or if not, of the workers gathered at a general meeting, may (once a strike is called) submit to a ballot by all workers in the enterprise whether they wish to submit the outstanding matters under dispute to arbitration" (amended to remove the possibility of the Minister of Labour and Social Security being able to submit automatically to a ballot by the workers of the enterprise the question of the submission of the dispute to an arbitration tribunal); and

-  section 486 on the control of the internal management of trade unions and union meetings by officials, which permitted officials of the Ministry of Labour to call before them trade union leaders or members to require them to provide relevant information on their work, and to present books, registers, plans and other documents and obtain copies of or extracts from the latter (amended; the authorities of the Ministry of Labour and Social Security may exercise these powers provided that they have received a request from the trade union and/or the second- and third-level organizations of which the trade union is a member).

However, the Committee notes that the new Act which has been adopted does not refer to other legislative provisions on which the Committee has also been commenting for many years, namely:

-  the prohibition of federations and confederations from calling strikes (section 417(1) of the Labour Code);

-  the prohibition of strikes, not only in essential services in the strict sense of the term, but also in a very wide range of services which are not necessarily essential (section 450(1)(a) of the Labour Code and Decrees Nos. 414 and 437 of 1952; 1543 of 1955; 1593 of 1959; 1167 of 1963; 57 and 534 of 1967) and the possibility of dismissing trade union officers who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), including when the strike is unlawful due to requirements which are contrary to the principles of freedom of association; and

-  the power of the Minister of Labour to refer a dispute to arbitration when a strike lasts more than a specific period (section 448(4) of the Labour Code).

In this regard, the Committee notes that during the direct contacts mission carried out in February 2000, draft legislative texts were prepared to amend the above provisions and that the Government undertook to submit the above draft texts to the social partners and subsequently to Congress. In these conditions, the Committee hopes that once these consultations have been held, the draft legislative texts will be submitted rapidly to Congress. The Committee requests the Government to provide information on developments in this process.

Finally, with regard to the observations made by the Colombian Textile Workers Union (SINTRATEXTIL) concerning the failure of the Textiles Rio Negro enterprise to comply with the obligation to deduct trade union dues, the Committee notes the Government’s statement that there are legal provisions requiring employers to deduct trade union dues and that, in the case in question, the Labour Inspectorate of Rionegro-Antioquía undertook an administrative investigation and penalized the enterprise in decisions Nos. 001, 007 and 800 dated 6 March, 30 March and 9 June 2000.