Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

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

A Government representative of Colombia stated that his Government was open to review by the supervisory machinery concerning the application of international labour standards. He said that, although there were links between the Committee of Experts and the Committee on Freedom of Association, as regards Convention No. 87 there could be no confusion over their respective functions, as there were differences between the two as to their competence: the Committee of Experts was more concerned with the legal work of comparing general international and national labour standards and had rightly confined itself to mentioning the situation of violence created by minority groups of extremists, delinquents or drug traffickers; the Committee on Freedom of Association, on the other hand, was more concerned with examining actual cases of violations of the Convention. His Government, he declared, was the first to deplore such cases and was most interested in clarifying and punishing the crimes which had taken place, as well as in preventing them from recurring; to this end, it had taken very important measures. Considering that the Committee of Experts had referred to the conclusions of the Committee on Freedom of Association, to which his Government had sent a great deal of information, he went on to deal with the issues raised by the Committee of Experts.

As regards the establishment of trade unions and the approval of their rules, he denied the allegation made by the Workers' Central Organisation of Colombia (CUT) that the Government was placing obstacles in the way of the establishment of trade union organisations, by repeatedly denying recognition of their legal personality or approval of their rules. He stated that over the past three years two new confederations had been established, 359 trade unions recognised and duly registered and 294 amendments made to their rules. Over the same period, 2,185 collective agreements were approved. He expressed his Government's intention to study ways of hastening this process, in consultation with the workers' leaders.

The speaker referred to the suspension of legal personality and the incompatibility which the Committee of Experts considered existed between the Convention and section 450 of the Labour Code (which permits the suspension of legal personalities for a period of two to six months and even the dissolution of a trade union as a sanction for an illegal strike); he stated that his Government was ready to examine in detail, with the workers and the employers, ways of changing the law, in so far as, for its part, the trade union movement could guarantee the normal operation of enterprises in which strikes had just finished, since the State had to ensure that the availability of work continued. He said that in normal times, as well as those involving repeated non-compliance by labour unions with the labour legislation provided for in section 380, the Minister of Labour must petition a labour judge for authorisation to impose the penalty provided in the section, suspension of legal personality. He added that in cases of grave disturbance of the public order by virtue of the Constitutional provisions on powers under the state of emergency to safeguard rights for all the population; the Government conferred, by temporary decree, jurisdiction to the Ministry of Labour to exercise, on a case-by-case basis, the authority to suspend legal personality or to dissolve trade unions. Decrees which suspended the legal personality of trade unions as punishment for having taken part in the general strike of October 1988 had been adopted in order to safeguard the authority of the Constitution and had been declared by the Supreme Court to be in conformity with the Constitution. He also referred to Article 4 of Convention No. 111, which stipulates that any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State shall not be deemed to be discrimination. He stated that these decrees had been repealed because the crisis came to an end. He pointed out that, even in a state of emergency, a trade union whose legal personality had been suspended could appeal either through administrative channels, which had the effect of suspending measures taken by the ministry, or through the administrative disputes procedure which, though it does not have a suspensive effect, may be accompanied by a supplementary appeal asking for suspension. He added that Colombian law is in conformity with Convention No. 87 and, in some regards, is more favorable for trade unions, for example, with respect to representation on boards of directors of public establishments. He added also that it was possible that in some regards, the Convention itself was out of mode and modification might be needed to bring it up to date. He then referred to the provisions of the national legislation which the Committee of Experts had considered incompatible with Convention No. 87, namely ministerial approval of amendments to the constitutions of unions, federations and confederations; supervision of the internal management of unions; the suspension, with loss of trade union rights, of trade union leaders who had been responsible for the dissolution of their unions; and the actual obligation to belong to the trade or occupation in order to be considered eligible for election to trade union office. He said the Government was interested in expediting these questions, in examining the degree of compatibility between these provisions and the Convention and the possibility of taking measures to put provisions in conformity with the Convention, in so far as they are not in conformity with regard to the election of foreigners to trade union office, the Government will request information from the ILO on the various national legal systems dealing with this question. As regards the communication of the election of trade union officers to the administrative authorities, he explained that this was a question of informing the labour authorities for registration and not for their approval. He also referred to the prohibition on trade unions from taking part in political matters and, in this respect, he said that in practice the Colombian trade unions participated in politics and that, like every citizen, their members were entitled to take part in elections and be elected and in fact a number of important trade union leaders have taken advantage of this right to be elected in the political arena. He added that this principle tended to protect unionised workers against the political adventuring of a leader who might step out of his strict trade union role and take advantage of a "captive constituency."

It is the intent of the Government to study the possibility of tempering or suspending the current prohibition on strikes by federations and confederations, provided that adequate guarantees are given that the eventual declaration of strikes would concern real employment issues and the Government was conscious of the need for Constitutional guarantees of the right to strike in public services except in essential public services. He pointed out that amendments to the Constitution already proposed by the Government were under way. He added that the administration had no guarantees at all when faced with these strikes, which frequently occurred without the proper conciliation procedures being followed. The speaker declared that, for clear constitutional reasons, his Government had difficulty in accepting the idea of the suppression of compulsory arbitration ordered by the Government in order to terminate strikes affecting the national economy.

As regards prison sentences in cases of the suspension of the right to strike, under a state of emergency, he said that Decree 2004 was no longer in force and that a similar Decree adopted in October 1988 was repealed in December 1988.

The Government would also examine the question of the automatic dismissal of trade union leaders for participation in illegal strikes (which he said were not as automatic as all that), in order to establish which legal improvements might be proposed.

Finally, he said that the national legislation did not place any limit on the duration of strikes but that it guarantees the right of the majority of workers to request the ministry of labour to constitute an arbitral tribunal to resolve strikes of more than 40 days' duration.

In conclusion, he affirmed that, in Colombia, despite the difficult social and economic context, an atmosphere of harmony and collaboration did exist between Government and trade unions, this did not mean there were no differences of opinion, but these could always be resolved in an atmosphere of patience and constructive dialogue. The Government was examining ways of bringing the legislation more closely into line with the Convention. He reiterated its interests in continued co-operation with the Committee of Experts and the present Committee; he stated that some observations were unfounded because of a wrong interpretation of the standards or because the complainants had overlooked the Government's obligation to safeguard higher legal rights through emergency measures.

The Workers members considered that the Government representative's intervention was excessively long and had hindered the problem rather than helped it. They would have liked the Government representative to have supplied replies to the recommendations of the Committee on Freedom of Association and to have given details of the measures taken following the direct contacts mission. As it happened, the Government representative had merely repeated the same formula throughout his intervention, namely that things would be examined later.

The Employers' members believed that after the long statement of the Government representative, it was necessary to highlight certain main points. The point of departure is the great number of complaints and of different findings about the situation in Colombia which, taken altogether, is a cause for much concern. The Committee of Experts had spoken of an alarmingly violent situation and the Government representative had confirmed the situation. The Committee should examine the case against that background; it was not surprising that in such an unusual situation, problems had arisen in relation to freedom of association: authorities appeared to act arbitrarily, there was a lack of sufficiently precise legal provisions and many of them were not complied with. A number of different laws represented too great a form of intervention into the activities of associations, bureaucratic provisions prevented employers and workers from carrying out their work independently, and restrictions were placed upon the activities of organisations. The Committee of Experts considered that restrictions on the right to strike were too stringent; the Employers did not want to raise the point as they were not in agreement with criteria applied by the Committee of Experts. However, there were clear violations of the Convention and they were very concerned about the situation. The Government representative had recognised that the situation was complex but had given little indication of the possibilities for changing it. The situation did not justify regulations and practices which did not conform with the Convention. The Government had to supply a detailed report and indicate its intentions and the changes it would make. Committee should continue examining the case and express concern about the present situation.

The Worker' member of Colombia referred to the fact that some governments appeared to consider as an attack on the nation any complaint made by trade unions before the international authorities regarding non-compliance with obligations entered into with the Organisation. He considered that the important factors in this question were the truth of the complaints made and the opening of the dialogue needed to enable labour legislation to progress. He stated that, in giving the workers' representation at the International Labour Conference to the most representative union group, namely the CUT, the Government had merely complied with its duty, not granted any favours. The speaker stated that the Convention was of the greatest importance to the trade union movement and was the result of a century of workers' struggle; it had still not been ratified by some States and was not respected by others, as was the case in his country. He said that in his country trade unions were still being suspended by administrative authority and that this currently affected over 40,000 workers; Decree No. 939 of 1966, which empowered the Ministry of Labour to suspend strikes lasting over 40 days and to order compulsory arbitration, was still in force and was still being applied.

The President of the Republic could suspend a strike if he considered that it threatened the national economy. The speaker observed that, for years, the Committee of Experts had insisted that some amendments be made. He hoped that the consultations with the unions and the employers would be fruitful and that they would result in proposals to improve the application of the Convention by the next session of the national Congress. However, he found this difficult to imagine since agreement had not been possible even on a minimum wage. The speaker referred to the murders of 276 trade unionists and stated that when the president of CUT was murdered in February 1989, the executive of that organisation had started a hunger strike, which had led to discussions being held between the Ministry of Labour and CUT. On the basis of these discussions, the Government had committed itself to protect the trade unionists and to investigate the crimes. In spite of the good will of the President of the Republic, the facts were clear: the headquarters of CUT in el Meta had been blown up and two more trade union leaders had been murdered by paramilitary groups. The situation was very serious, with 276 murdered trade unionists, and 300 death threats. In short, it was very dangerous to be a trade unionist in Colombia. He appealed for the international solidarity of the world's democratic countries to ensure that the efforts made by the President of the Republic should culminate in the unmasking of the murderers.

On the question of the October 1988 strike, he denied that it had been politically motivated; the CUT and CGT had demanded improved living and working conditions for Colombian workers. Three days before the strike, the Government passed emergency decrees which allowed the arrest and dismissal of strikers and the suspension of the trade union centrals. The decrees had been repealed, but the punishment had been maintained. The suspension is still in force, in spite of the fact that all internal appeal channels have been attempted. Finally, he emphasised that the Colombian trade unionist movement was seeking to engage in dialogue with a view to ending the violence, since without peace there could be no progress; it was a peace movement fighting to defend the right to life, liberty and democracy. He concluded by expressing his faith in the assistance the ILO would bring to the Colombian workers, employers and government, in order to reach the necessary agreements.

The Worker member of the Federal Republic of Germany stated that the Government representative's intervention led him to make the following comments on the links between the Committee on Freedom of Association and the present Committee. The present Committee is accustomed to dealing with cases on non-application of standards, on which it drew its own conclusions. He emphasised that on many points Colombian labour legislation was diametrically opposed to the Convention, as had been stressed by the Committee of Experts in its report. There was an urgent need for the law to be modified so as to settle the question of the legal personality of trade unions and put law and practice into conformity with the Convention. The persistent refusal to make these amendments was most worrying. A direct contacts mission had taken place in 1988 and the case was examined within the Committee on Freedom of Association. Violations of Convention No. 87 were observed in several countries, but in Colombia not only were limitations placed on the activities of trade unions, but also trade unionists wishing to carry out their functions put their lives in danger. There are limits beyond which one cannot go: with drugdealers, the complicity of the police and the armed forces, and illegal activities of paramilitary groups - against even the most elevated dialogue is powerless. Nevertheless, the Government is obligated to guarantee the rights of trade unions, grant the right to strike legally and to protect trade unionists against assassination. In a country where violence prevails, the exercise of trade union rights is also in danger. There have been 276 murdered trade unionists; 1,660 people were murdered between May 1988 and April 1989 and 2,000 had "disappeared". Paramilitary groups terrorise most of the country. The Government, which has not been able to stop these terrorist acts and which uses inadequate means in their pursuit of the guilty should therefore not only review its legislation but also its practice. All criminal activities against trade unionists should be prosecuted and sufficient measures taken to conclude the inquiries into these activities. The Government representative's statements did not show much good will in this respect; he merely justified the maintenance of the existing legal situation, this being characterised by interference in the activities of trade unions, limitation on the right to strike, prohibition on strikes by public servants and invocation of Constitutional provisions. Dialogue between members of the present Committee should consist not merely of the expression of points of view and their repetition: progress should also be able to be registered. The speaker joined with the Worker member of Colombia to stress the right of trade unions to supply observations on the situation in their countries. The exercise of this right should not give rise to discrimination. The numerous murders of trade union leaders provoked the horror of civilised people and the solidarity of all trade unions.

A Worker member of Spain stated that the situation in Colombia was so serious that it went beyond the provisions of the Convention. A Government which does not guarantee to its citizens the most fundamental right, the right to life. With reference to the violation of freedom of association and particularly the suspension of trade unions, he emphasised that according to indications by the Committee of Experts, the Government, in October 1988, was to promulgate new decrees ordering suspensions; nothing has been done to improve this situation. He referred to the appendix of the Committee on Freedom of Association's Report, the first of which contained a list of 79 disappeared or murdered unionists, with regard to whom the Government has communicated no information; 18 of these have been murdered in 1989. In the second appendix, there was a list of 180 trade unionists concerning whom the Committee had requested information on the legal investigations which had been undertaken. The speaker asked the Government representative about a disappeared trade unionist and asserted that until the Government responded, the case of Colombia should be the object of a special paragraph as labour laws were merely a dead letter.

The Worker member of Venezuela expressed his deep concern for the situation of Colombian workers. He considered that the threat to the right to life merited special attention on the part of the present Committee because, without this fundamental right, no other right can be guaranteed. He emphasised the fact that in the seven months since the meeting of the Committee on Freedom of Association in November 1988, when the assassination of 200 trade unionists was noted, 76 more assassinations had taken place. He felt that this violent process of a dirty war sought to resolve the problem of social justice by repression. He thought it necessary to oppose such a process being adopted as a state policy. He made reference to a declaration made by the President of the Republic of Colombia, as a consequence of the strike of October 1988, in which he referred to the decrees that had been adopted and confirmed that these decrees had fulfilled their objective and had defeated the country's enemies. Such a declaration showed that the President's policy was one of repression and assassination of those who fight to defend their rights. Finally, the speaker expressed his wish that this case be the object of a special paragraph.

The Worker member of the United Kingdom declared that this was a difficult, confusing and horrifying case, filled with savagery and death. In his view, the Government representative of Colombia was confused, as he appeared to be indicating that horror was dealt with by the Committee of Experts and that the present Committee dealt merely with its legalistic aspects. On the contrary, observations by the Committee on Freedom of Association had considerable relevance to the work of the present Committee and many of the points made by the Committee on Freedom of Association had been referred to by the Committee of Experts, notably the one concerning the alarming, violent situation in Colombia which generally made it impossible for normal living conditions to be maintained and prevented the full exercise of trade union activity. This was relevant to the work of the present Committee, as was the litany of martyrs to the trade union cause. If a trade unionist was murdered because of his trade union views, then the murder was relevant to the work of this Committee; indeed, being mentioned in this Committee might amount to the only memorial erected to such a victim. The political situation in Colombia was confused, with drug-traffickers and paramilitary organisations operating freely. The contrast was inescapable between a government unable to protect the lives of trade unionists or to control paramilitary organisations, but with sufficient strength, control and law to deal with local strikes, general strikes and other trade union activities. The contrast was also relevant to the work of this Committee. There was no doubt whatsoever that Colombia was not in conformity with the Convention. This had been said by the Committee on Freedom of Association, the Committee of Experts and by this Committee. Furthermore, this Committee would continue saying so, because it was not satisfied with the presentation of the situation by the Government representative. At the end of his statement, the Worker member of Colombia had expressed his faith in the ILO; the Speaker hoped this faith would remain intact after the decisions taken by this Committee.

The Worker member of Uruguay stated that this case should be distressing to all democratic members of the Committee now that this country had become a world leader in the number of workers murdered. He expressed his agreement with the statement of the Employers' members as concerns the need to put an end to this situation. The speaker expressed his disagreement with the explanations given by the Government representative and regretted the fact that the Government tried to justify itself and its violation of the Convention as well as the attacks against the trade union movement by paramilitary groups and drug-traffickers. He felt that the present Committee should include a special paragraph which, in a clear and precise manner, would explain the situation of violation of trade union rights on the Government so that it might recognise and apply, in practice, these rights so that it would give priority to guaranteeing the right to life.

The Workers' members indicated that registration of a case in a special paragraph does not constitute a formal condemnation but does emphasise the grave nature of a case. Their first concern was for an end to the violence which was annihilating civil liberties and freedom of association and was preventing the operation of justice. Reports of supervisory bodies dealing with the situation in the country could help the Government find solutions. On their side, the industrialised countries should make their contribution by more effectively fighting drug-trafficking, one of the scourges of the country; this had already been noted by the spokesman for the workers before the Governing Body. The conscience and solidarity of the world should be awakened. As far as freedom of association was concerned, workers who engaged in trade union activity found themselves face to face with violence, accused of terrorism, and their activities were described as "perverse"; this had to stop. In spite of the direct contacts mission and the recommendation of the Committee on Freedom of Association, it was clear that, at present, freedom of association was not respected either in the law or in practice, notably as regards the legal personality of trade unions and strikes, as the Committee of Experts had pointed out. Changes had to be made and measures had to be taken which should result in tripartite consultation and the assistance of the ILO.

The Government representative declared that he had not referred to the comments of the Committee on Freedom of Association due to lack of time and in view of the numerous questions asked by the Committee of Experts; however, his Government was ready to explain both orally and in written form, as it had always done, these crimes which his Government was the first to deplore. His Government was trying to avoid responding with repression to the attacks against democracy that were being made by violent and delinquent opponents; it preferred dialogue and the participation of all interested parties. As regards the situation described in his country, he referred to the multiple causes of the violence, the drug traffic linked with subversive groups both of the extreme right and of the extreme left. He also referred to the need for the control of arms trafficking, although it should be pointed out that the arms were not manufactured in Colombia. He stated that, in certain cases, his Government had recognised the grounds for the complaints which had been presented to the ILO and other international authorities. These were cases of abuse of power but they did not permit one to affirm that violence was organised systematically by the Government; this had been recognised by the Workers' representative before the Governing Body. The speaker also referred to the report of the direct contacts mission which visited Colombia and which had been submitted to the Governing Body; this referred to a state of generalised violence and to the fact that the victims of this violence were also employers, school-teachers, priests, journalists, people from all levels of society, various civil servants, magistrates, judges, the Minister of Justice and the Attorney General. The Workers' members before the Governing Body had asked the Director-General to use his influence to mobilise the United Nations and the specialised agencies in support of the fight against drug-trafficking, which was principally responsible for the current situation in Colombia and he reiterated his Government's interest in supporting all efforts made in this direction.

The Government representative turned to the generale strike of October 1988 which had been called by CUT, CGT and other trade union movements. He stated that it was a political strike and not a strike on labour questions; this he could prove by reading from a text published by the "Coordinadora Guerrilera Simon Bolivar", in which this movement had called for military confrontation and for sabotage activity as ways of participating in the political general strike. He also referred to the fact that the same president of CUT had admitted publicly after the strike that terrorists and other violent elements had defeated the strike and he wondered that would have happened if the Government had not taken emergency measures in the face of this particularly abnormal strike.

The speaker also stated that three decrees had been adopted dealing respectively with: the establishment of a committee to fight against the death squads, bands of gunmen and private self-defence groups (Decree No. 813), the establishment of a special armed corps to fight against these groups (Decree No. 814); and Decree No. 815, which suspended the legal provision allowing the Ministry of Defence to issue weapons which are reserved for the exclusive use of the armed forces to civilians and to use the collaboration of private citizens in national defence activities. He also referred to Decree No. 1,194 of 1988 which deals with the dismantling of training camps for hired gunmen and raised the penalties for training gunmen and other related activities. He insisted that the present Committee take into consideration the external factors which were aggravating the situation in his country, in order to undertake an international action against such activities, for example against arms trafficking. Finally, he expressed the hope that the present Committee's conclusions would take into account the efforts made by his Government, which wished a democratic and progressive situation to exist in the country.

The Government representative stated that his Government respected the conclusions of the Committee, to the point of abstaining from any intervention in their adoption, as he respected the legal belief that you could not be the judge in your own case. However, he wished it to be noted that his Government considered that in the conclusions, greater consideration should have been taken of the efforts made by his Government to fight violence by all the extremist groups and its determination to apply the international labour Conventions as best as possible. Finally, he referred to the difficult economic context which hindered the application of these standards in developing countries.

The Committee had taken note of the information supplied by the Government representative and the detailed discussions which had taken place within the Committee. The Committee noted with profound concern the comments made by the Committee of Experts, which spoke of the persistence of a number of grave divergences between, on the one hand, law and practice and, on the other hand, the provisions of the Convention. It recalled on this score the questions that had been raised by the Committee of Experts over many years. The Committee took note with interest of the report of the direct contacts mission that had travelled to Colombia in September 1988 and of the grave concern of the Committee on Freedom of Association. The Committee requested the Government to take all necessary measures to bring the law and practice fully into line with the requirements of the Convention, inter alia, in attempting to reintroduce a situation propitious to the full exercise of civil liberties and accordingly the freedom of association and to guarantee the physical safety of trade unionists. The Committee wished to request the Government to hold tripartite consultations and recalled to it the possibility of having resort to the ILO's assistance. The Committee expressed the most sincere hope that the Government would be able to report next year on substantial progress achieved in this field in view of the importance and the gravity of the situation. The Committee decided to mention this case in a special paragraph in its report.

The Government representative stated that his Government respected the conclusions of the Committee, to the point of abstaining from any intervention in their adoption, as he respected the legal belief that you could not be the judge in your own case. However, he wished it to be noted that his Government considered that in the conclusions, greater consideration should have been taken of the efforts made by his Government to fight violence by all the extremist groups and its determination to apply the international labour Conventions as best as possible. Finally, he referred to the difficult economic context which hindered the application of these standards in developing countries.