Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Labour Inspection Convention, 1947 (No. 81) - Colombia (Ratification: 1967)

The Committee notes the Government’s report, the comments of 31 August 2007 by the Single Confederation of Workers of Colombia (CUT), which largely address the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Government’s replies sent to the Office under cover of a letter of 21 February 2008 in so far as they concern the application of the present Convention. The Committee also notes that on 28 January 2008 the CUT sent an evaluation report and proposals for implementation of a tripartite agreement “Labour rights and freedom of association in Colombia”, also signed by the General Confederation of Democratic Workers (CGTD), the Confederation of Workers of Colombia (CTC) and the Confederation of Pensioners of Colombia (CPC). It also notes the information supplied by the Government on 9 June 2008 responding thereto. Lastly, the Committee notes the comments of 19 August 2008 by the General Confederation of Labour (CGT) making the same points as those raised in the above evaluation report and sent by the ILO to the Government on 19 September 2008.

According to the unions that signed the above report, workers’ rights are violated not only by many employers in the private sector but also by a lot of state enterprises, particularly as regards the obligation to provide social security coverage for their workers. The unions consider that measures such as the merger of the Ministry of Labour with another ministry that also deals with health, and the heavy workload imposed on labour inspectors, already too few in number, have weakened the labour administration and prevented inspectors from carrying out their main duties including the inspection of workplaces, providing employers and workers with technical information and advice or the indication to the competent authorities of shortcomings in the legislation respecting conditions of work and the protection of workers. This situation also makes complaint procedures slow and favours continual and repeated violations by employers of the relevant laws and regulations. The unions assert that breaches of the legislation are particularly numerous in commercial establishments and would like to see such workplaces covered by the inspectorate’s mandate pertaining to the application of the Convention.

The unions also object to the widespread practice of concluding employment contracts with associated work cooperatives (CTAs), which they see as a fraudulent strategy devised by enterprises to circumvent the obligations arising from a salaried employment relationship. The advantage – including for the State – of such cooperatives is that, like certain service contracts, in the form of civil or commercial contracts, is that they afford a source of cheap labour and entail none of the costs or obligations for the employer related to a salaried employment contract. In particular, they involve none of the obligations related to exercise of the right to organize, such as the requirement of collective bargaining or the exercise of the right to strike. Presented by the legislation as a free and voluntary form of association, such cooperatives are in fact a solution imposed by former employees who have been dismissed as a means of enabling them to continue receiving an income. The report cites specific instances of CTAs and outsourcing in various sectors, including the textile and garment industry, which account for a substantial proportion of the country’s exports and where the workforce consists largely of women, mainly in Bogotá and the metropolitan sector of the Department of Antioquia. Women set up small family businesses, which subcontract to large maquilas and produce items for export in micro-workshops or their own homes in extremely precarious conditions (no minimum wage, social security or statutory hours of work, and therefore no paid overtime).

The unions’ claims are: (i) that the Ministry of Labour be re-established and the labour inspectorate reinforced; (ii) that the mechanisms to monitor circumvention of social security contributions be reinforced and workers’ health insurance coverage be promoted; (iii) that the exclusion from ratification of Part II of the Convention (commercial establishments) be lifted; (iv) that the new model of labour inspection developed with support from USAID–Colombia be adopted in consultation with the union confederations; (v) that the Government ensure that the necessary legislative measures be taken to ensure that no state enterprise may have recourse to CTAs for labour relations; (vi) that a bill establishing a legal framework for the operation of cooperatives based on the guidelines in the Promotion of Cooperatives Recommendation, 2002 (No. 193), be discussed with the social partners; (vii) that labour legislation safeguarding rights and consistent with the Conventions of the ILO be drawn up in consultation with the social partners; and (viii) that the work contract be reinstated as the basis of the employment relationship to put an end to the intermediary role played by associated work cooperatives and other labour practices which exclude any employment relationship.

The CUT observes that, although article 125 of the National Constitution and Act No. 909 of 2004 specify that labour inspectors are public servants whose posts must be filled by competition and are members of the civil service, most inspectors currently in service were appointed on a provisional basis because no competition was organized. Indeed, in a direct request addressed to the Government in 2001, the Committee noted that for financial reasons, the recruitment of public employees had been frozen and that to make up for the lack of labour inspectors the Government had had to use the services of contract staff to carry out inspectors’ duties. The Committee accordingly asked the Government to inform the Office of any developments in the situation, particularly regarding the status and number of serving inspectors, and the status and number of the contract staff performing inspectors’ duties. The Government saw no reason to do so despite repeated requests from the Committee.

In its comments of 2007, the CUT also objected to the difficult conditions of work of labour inspectors, and particularly the lack of office equipment, both in the capital and in the main cities, and the widespread lack of transport facilities for professional travel.

According to information supplied by the Government in its report and provided on the web site of the Ministry of Social Protection, a number of measures should contribute to strengthening the labour inspection system with the implementation of the USAID–Midas (More Investment for Alternative Sustainable Development) programme and with assistance from the Office.

Articles 6, 9 and 10 of the Convention. More and better qualified inspection staff and the status of inspectors. With regard to the number of labour inspectors, the Committee notes that according to the Government, 2,000 members of the inspectorate are to be recruited between 2008 and 2010, including lawyers, economists and engineers, to supplement the existing staff of 746 serving inspectors. Furthermore, labour inspectors’ skills are to be improved through specific training. The Committee takes due note of this information and asks the Government to provide details in its next report of the arrangements for recruiting new inspection staff, and their status and conditions of service, in the light of the requirements of Article 6 of the Convention. It would be grateful if the Government would indicate, in particular, whether competitions have been held for the new posts to be filled throughout the country and to provide any relevant documentation or legal texts.

Articles 11 and 12, paragraph 1(c)(iv). Material working conditions and transport facilities for labour inspectors. The Committee notes the Government’s acknowledgement that the transport facilities available to inspectors for duty travel are inadequate and need to be improved. It requests the Government to provide information on developments in the working conditions of labour inspectors (number, geographical distribution, occupation and state of offices; office equipment, communication media; equipment for technical investigations; transport facilities, arrangements for reimbursing travel expenses and other incidental expenses).

Article 3, paragraph 2. Further duties entrusted to labour inspectors. With regard to the many duties entrusted to labour inspectors and their impact on the performance of their primary duties, the Committee notes that a study on the workload of the territorial directorates was undertaken as part of a project to improve the labour inspection system. The Committee notes with interest that the Government is envisaging the possibility, in the context of future legislative reforms, of reassigning some of the duties of labour inspectors to other public employees and of setting up a special conciliation mechanism. The Committee hopes that the Government will not fail to inform the ILO of the measures taken to ensure that labour inspectors in future devote most of their working time to discharging their primary duties, with priority being given to inspections, and that their results will be reflected in relevant statistical information.

Article 5(b). New arrangements for inspecting conditions of work with the collaboration of the social partners. The Committee notes that 18 so-called “improvement” or “management” agreements were concluded in 2007 between employers and workers under the supervision and monitoring of inspectors in certain sectors, including construction, transport and security enterprises. As the Government indicates that such agreements aim to improve compliance with their respective obligations of employers and workers, the Committee requests it to provide information on their content and on the practical arrangements for implementing them, and to send copies of them to the ILO.

Article 18. Adequate and effectively enforced penalties. With regard to measures to curb the evasion of social security contributions, the Government states that the labour inspectorate is to have information tools such as the single form for the integrated recovery of all contributions due from enterprises, employers or self-independent workers to social security administrators and parafiscal bodies (PILA). The Committee would be grateful if the Government would provide information on the impact of the introduction of this procedure in terms of fulfilment of social security-related obligations. It also asks the Government to provide figures showing contraventions reported and penalties imposed for failure to comply with social security obligations.

Associated work cooperatives (CTAs), subcontracting and increasing precarity of work. According to the Government, the CTA concept has produced a proliferation of entities in which employment relations are concluded in breach of the labour legislation, as abusive and flexible working conditions have undermined the very concept and purpose of cooperatives. It cites instances of employers dismissing workers and setting up cooperatives that the latter are invited to join, and other instances of enterprises circumventing their obligations as employers by creating CTAs, both in the private and public sectors. However, the Government states that measures have been taken to remedy the situation, particularly as regards social coverage, by establishing proper supervision. It cites in this connection Decree No. 4588 of 2006 which regulates the organization, operation and inspection of CTAs. In the last quarter of 2007 and the first half of 2008, a total of 875 cooperatives and 22 pre-cooperatives were brought into conformity with the above Decree. In 2007, 113 penalties, amounting to 268,453,400 pesos, were imposed on cooperatives acting as intermediaries or temporary service enterprises, for evasion of social security contributions, and six penalties amounting to 291,821,800 pesos were imposed on pre-cooperatives. In the Government’s view, the establishment of CTAs must be regarded as a legitimate and effective means of creating jobs and as being of particular benefit to the unemployed, displaced and marginal persons, and enterprises in difficulty or that are restructuring. It is planning to set up an information system on cooperatives, including data on all cooperatives and pre-cooperatives in the country, pursuant to the above Decree No. 4588, as amended and supplemented, so as to prevent the abuse of such associations.

The Committee draws the Government’s attention to paragraph 133 of its General Survey of 2006 on labour inspection concerning the meaning and scope of Article 3, paragraph 1(c), of the Convention, which provides that labour inspectors shall bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions. In the Committee’s view, the deterioration in the working conditions of a large number of workers, many of whom are women, would be ample reason for entrusting to inspectors the task of conducting an inquiry into the employment relationships that exist between those giving instructions or receiving goods and services produced by the CTAs and the workers of the CTAs. Any defects or abuse affecting these workers could thus be identified and improvements introduced in the legislation on conditions of work and the protection of workers in the performance of their work. The Committee hopes that labour inspectors will shortly be entrusted with such an investigation to enable the law to keep pace with new situations in the world of work such as the relationship in which CTAs are subordinate to the enterprises for which they produce goods and services outside any form of work contract. The Government is asked to provide information, together with copies of any texts giving effect to Article 3, paragraph 1(c), of the Convention.

The Committee also asks the Government to inform the ILO of its views on the unions’ proposals on this matter.

Article 14. Notification to labour inspectors of industrial accidents and cases of occupational disease. The Committee has on several occasions asked the Government to take steps to ensure that effect is given to this Article of the Convention. Since it has sent no relevant information on this matter, the Committee urges the Government to take steps to ensure that effect is given in law and practice to this important provision of the Convention as an essential requirement for the development of a policy for the prevention of occupational risks. It firmly hopes that relevant information on this matter will be sent with the Government’s next report.

Article 13. Preventive occupational safety and health measures in high-risk activities. Information available at the ILO shows that in recent years there have been serious accidents in the mining sector, including fatal accidents in February 2007 in the coal mines of San Roque and La Preciosa en Sardinata in the Department of Norte de Santander, and at Gámeza in the Department of Boyacá. As the Government announced that priority will be given to preventing occupational risks by targeting activities and establishments in which workers face serious risks to their health and safety, the Committee requests it to indicate the measures taken to this end. Please indicate in particular whether measures have been taken to identify the risk factors responsible for the above accidents and the means to eliminate them, and to provide any relevant information. If such measures have not been taken, the Committee urges the Government to take measures rapidly to protect the workers concerned against the risk of serious accidents, and to keep the ILO duly informed.

Article 15(c). Principle of the confidentiality of the source of complaints. The Committee notes once again that the Government has not sent the information requested on the existence of a legal basis ensuring that labour inspectors comply with the principle of the confidentiality of the source of complaints. It once again urges the Government to take steps rapidly to supplement the legislation to ensure the confidentiality of complaints so as to protect workers from reprisals, to keep the ILO informed and to provide any relevant laws or bills.

Articles 20 and 21. Annual inspection report. The Committee once again draws the Government’s attention to the obligation on the central inspection authority to publish and communicate to the ILO, in accordance with Article 20 of the Convention, an annual report on the work of the inspection services containing the information required by clauses (a) to (g) of Article 21. The Committee firmly hopes that, with the international cooperation currently under way to reinforce the labour inspectorate, the Government will not fail to take the necessary steps to ensure that full effect is given to these Articles of the Convention. It would be grateful if the Government would in any event provide information on all developments in this area, including any problems encountered.

The Committee is also addressing a request directly to the Government on other matters.