Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

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

A Government representative of Colombia, Minister of Labour and Social Security, stressed the improvements with regard to Convention No. 87 brought about by Act No. 50 as a result of which steps had been able to be taken to improve the situation regarding the legal personality of trade unions. It was now a matter for the labour courts to resolve any disputes or cases in this connection. The constituent Assembly had approved the registration of a number of unions. They now had the right to engage in collective bargaining and conclude collective agreements; these unions represented about a third of the workers. It was also possible to form mixed trade unions.

He raised certain expressions which were not exactly taken up in the Act, due to the short time that had been available to examine in depth the Committee of Experts' comments. The Experts stated that the election of trade union officers had to be submitted for approval by the administrative authorities and it deemed this to be a breach of Article 3 of the Convention using references to Resolutions dating from 1952, 1972 and 1979. He had the text of the 1958 Resolution with him and pointed out that it did not make any reference at all to the approval of the election of trade union officers. There was a reference to giving information about elected officials, but there was no wording as stated in the report of the Committee of Experts. Likewise, according to the Experts, new section 380(3) of the Labour Code provided for suspension for up to three years, with loss of trade union rights, of trade union officers who were responsible for the dissolution of their unions. However, he pointed out that this was not administrative suspension, but a faculty available to the Government when standards were violated. It was then possible to have recourse to the labour courts which would decide the question. He stated that the provision cited by the Experts as prohibiting trade unions from taking part in political matters had been repealed in 1990. He stressed that Colombia respected freedom of association and trade union officials had always been free to engage in politics; many were in fact members of Congress. As for the Experts' mention of new section 450 of the Labour Code, as amended in 1990, he noted that before suspension or dissolution of the legal personality of a trade union following a strike or unlawful work stoppage could take place, the matter required a decision by the labour courts. Thus new section 450(3) of the Code provides for the withdrawal or suspension of legal personality, but not by the administrative authority.

Referring to the right to strike, he was of the opinion that the constitutional procedures and the terms of the Standing Orders of the Conference permitted discussion of this question in some appropriate way within the ILO. The Committee of Experts stated that, in Colombia, strikes were prohibited not only in essential services in the strict sense of the term, but also in a wide range of public services which were not necessarily essential. It was true thet the Constitution prohibited strikes in public services, but this was because his Government believed that all public services were essential. His Government had proposed legislation in the Constituent Assembly which it considered to be in conformity with Convention No. 87. This was provided for in the national Constitution because when the authorities had to take action within their competence, they bore in mind the fact that strikes had to be related to economic matters of direct concern to workers. Mention had been made of the power vested in the Minister of Labour to permit the dismissal of all the workers in an undertaking in certain circumstances, one of which was if the strike had not been resolved by arbitration. He stated that the law of the majority should prevail in the case of a trade union. His Government also considered it important to maintain the 1968 legislation providing that there could be restrictions on a strike which affected the interests of the national economy; but even here the agreement of the Labour Chamber of the Supreme Court had to be obtained.

Referring to the Committee of Experts' comment on the prohibition of strikes, subject to administrative penalties, when a state of emergency had been declared, he stressed that it was only in such cases that such sanctions could be imposed; that is, in very special circumstances. In Colombia, there had been very serious difficulties and work stoppages - not actual strikes - which had restricted the right to work of those who did not want to take part in the stoppages designed, for example, to paralyse transport or interrupt communications. In these special cases the Government had taken action, as it was permitted under the Constitution, and the situation in Colombia necessitating such action was well known.

As regards action against trade union officers who had intervened or participated in an illegal strike, and the prohibition of work stoppages which can have subversive ends, the speaker pointed out that Article 8 of the Convention provided that in exercising the rights under the Convention, workers and employers and their respective organisations, like other persons or collectivities, had to respect the law of the land. For these reasons, and again repeating that there were imprecisions in the Experts' report, the Government representative expressed his concern about the need for a clearer definition of the right to strike and all its implications.

Referring to Convention No. 98, he stated that the Act No. 50 permitted the formation of mixed trade unions in which public service employees and private employees could both be members. There had been a great deal of legislative reform in connection with the Labour Code which had been in force for over 40 years and his Government was pressing on with reforms in order to bring the legislation into line with the Conventions in question. The Constituent Assembly, was currently meeting with a view to ensuring that new powers were vested in Congress in this connection; and new legislation was being drafted with a view to accomplishing all these reforms.

The Workers' members of the United Kingdom, while thanking the Government representative for his very detailed report, believed that he Workers, disagreed with much of what he had said. The Committee of Experts had quite rightly set out the legal formulations necessary to bring the Colombian legislation into conformity with Conventions Nos. 87 and 98. While they had to record some progress at the legislative level as a result of the adoption of Act No. 50, the present Committee and the Committee of Experts were also concerned with practice. As was noted last year, behind this case were possibly the most horrifying facts that would emerge in discussions in the present Committee: they could read out a list of prominent trade union leaders who had been killed, tortured, raped or who had disappeared, and since last year the situation had worsened. To read out the names provided by the International Confederation of Free Trade Unions and Amnesty International as well as other human rights groups, would do disservice to the many hundreds of victims whose names were unknown. The Government would say, as it did last year, that this violence against trade unionists was the work of drug dealers and criminals. This was, to some extent, true. But considerable evidence existed showing that members of the security forces had acquiesced, and had even been directly involved in some of these criminal acts. The attitude of the Government towards trade unions, with its restriction of trade union rights and detention without trial for long periods, created an atmosphere in which criminals and drug dealers had to feel that they were almost acting as government agents. Trade unionists themselves, in trying to establish recognition of basic trade union rights, were being treated as criminals in Colombia. Unionists throughout the world tried desperately to promote their causes peacefully; if the Government of Colombia was to harness the peaceful cooperation of unions, instead of repressing them, it might have better success in dealing with the criminal elements which pervaded the whole of Colombian society. Trade unionists discovered that, although massive military forces were available to break up local strikes, the same forces were mysteriously absent when union headquarters were being attacked and unionists being killed.

The Employers' members recalled that the Committee of Experts was of the view that the new legislation had led to some progress for both Conventions Nos. 87 and 98. Since the various points had been raised and discussed for a number of years, any change in a positive direction was to be welcomed. But there was still a lengthy list of continuing deficiencies which required discussion. Of the four points raised under Convention No. 87, the first two concerned the setting up and internal functioning of the trade unions. The provisions mentioned were quite clearly contrary to the Convention and were quite unnecessary and should be changed. The Government representative, referring to a large number of points, had repeatedly stated that the situation had changed, but the Employers were not clear whether all the points criticised by the Experts had been rectified. Considerable clarification was required here and they requested an exact report on where changes had taken place and what further changes were envisaged. They considered that points 3 and 4 raised under Convention No. 87 were less clear. It was a question of the often difficult distinction between trade unions and political organisations. There was no doubt that there could be no ban on political activity or political meetings, but one could distinguish between political and other organisations and it was also clear that truly political bodies were not covered by the Convention. As regarded the possibility of restricting strikes, the Employers indicated as they had in 1989 that they did not share the view of the Committee of Experts, namely that strikes could be restricted or prohibited only in public services in the strict sense of the term. Nevertheless they stated that there had to be a limit set as regarded the prohibition of strikes, which should not be too restrictive, and the situation in Colombia had to be changed on this point as well.

As for Convention No. 98, the Committee of Experts is satisfied because fines had been further increased. However, the Employers repeated that it was not necessary to specify amounts because Article 1 and 2 of the Convention referred to "adequate" protection and Article 4 recognised that measures had to be appropriate to national conditions. One further point remained outstanding, that of civil servants not being able to bargain collectively. This restriction was so extensive that it also applied to workers in commercial and industrial enterprises just because they were State-owned. The Employers believed that such workers should not be deprived of the right to bargain collectively. Since it appeared that the Government representative had stated that certain restrictions no longer existed, the Employers' members felt that his statement should be included in a detailed report so that the facts could be verified.

As there were still considerable differences, particularly concerning Convention No. 87, there was a need for rapid change and they considered that the present Committee should insist on a change in the near future in both the legislation and practice.

A Workers' member of Colombia thanked the ILO and all those who had expressed their concern and distress at the terrible situation faced by workers in Colombia. Referring to the statement made by the Government representative, he maintained that there was improper interference by the State in every aspect of the functioning of trade unions and not only in the Confederation to which he belonged. A virtual war was being waged against the trade union movement in Colombia and this arose in connection with the most recent legislation mentioned by the Committee of Experts in its report. He stated that the trade union movement had, for a long time, been making requests and calling for democratic reform of the labour legislation, but had constantly met resistance from the Government and employers. With reference to the Government representative's statement that reforms were being carried out in collaboration with the workers and employers, he observed that although the workers had hoped for proper proposals, the Government had produced reactionary provisions that were now embodied in Act No. 50 of 1990. In his opinion, the Government was trying to convince world public opinion that the amendments favoured workers whereas the legislation had really been brought into line with the requirements of the World Bank and International Monetary Fund. There had been some progress compared to 1989 and 1990 but he noted that Conventions Nos. 87 and 98 had been law in Colombia since 1976 and, despite all the legislation passed over the last fifteen years, they were still not properly applied. The Government representative had stated that strikes were not prohibited, but rather work stoppages. However, the four trade union confederations had organised a strike on 14 November 1990 aimed exclusively at defending workers' interests and this peaceful action had resulted in government measures including imprisonment for three years of those who called the strike, confiscation of trade union funds and the censorship of union radio and television. The military forces had been deployed as an intimidation measure and the Government had orchestrated a disinformation campaign alleging that the stoppage had been a failure. In concluding, he considered that the work of the Committee of Experts in this case had to be continued and suggested that a direct contacts mission be sent once again to the country with a view to establishing clearly how Act no. 50 of 1990 was going to be applied in practice.

Another Workers' member of Colombia, having listened to the Government representative's statement, informed the Committee that the situation of Colombian workers could not be worse. The new labour legislation not only breached the fundamental principles of the ILO, but was aimed at destroying the Colombian trade union movement. He based this remark on the following: rather than providing for the "elimination" of obstacles to the formation of unions, the Act allowed precarious employment contracts so that it was impossible for workers to join a union because of their temporary employment situation. Workers knew that if they joined a union, they ran the risk that their contracts would not be renewed. With this institutionalisation of temporary employment (the law had previously prohibited contracts of less than one year) it was impossible in practice for workers to belong to unions and to conclude collective agreements. The new Act also introduced changes concerning strike formalities and he pointed out that it was now very difficult for workers to vote in favour of a strike because the decision had to be taken at an enterprise-level meeting which could be attended by workers who were not members of the union. He added that the Government was propagating the fallacious idea that it did not prohibit strikes, only stoppages. but the stoppage of 14 November 1990, already referred, to was precisely a strike to protest against the introduction of this new Act on which the workers had not at all been consulted. They had been allowed to attend meetings of the committees discussing the draft provisions but had not been able to express their views, even though other parties had been heard. The stoppage itself had not been subversive and the confederations involved had publicly appealed to guerilla groups not to intervene in any way; nevertheless, it was declared illegal before it started and disciplinary action was taken throughout Colombia. Another deterioration introduced by the new Act was the lowering of the minimum age for admission to employment from 14 to 12 years, which could not be called progress. He called for an ILO mission to visit Colombia to assess the real situation. Lastly, he referred to a report of the Committee on Freedom of Association which called on the authorities to take steps to ensure the reinstatement of a group of workers who had been unjustifiably dismissed in the textiles sector. To date there had been no information from the Government about any reinstatements and this showed that, while the Government said one thing in order to impress public opinion, what was actually occurring in the country was quite different.

Another Workers' member of Colombia pointed out that this decade had been one of the most difficult in the history of Colombian workers. The Government representative had not referred correctly to the facts or to the policies of structural adjustment which were, in reality, not decided in Colombia, but by the World Bank and the International Monetary Fund in Washington. He believed that this neo-liberalism imposed by a cruel developmental policy would not hesitate in destroying the democratic basis of the union movement in the interests of implementing a new economic order in Latin America. It was no accident that today's leaders in Latin America had received instructions on this new economic order which was detrimental to social justice. In Colombia, these structural and economic policies were affecting the poorest and most marginalised sectors of the population. The new Act merely complied with these measures; the future was therefore bleak. He stressed that efforts had to be continued to combat the repression of the interests of Colombian workers, which were the interests of Latin American, Third World and all workers in general.

The Government representative of Colombia, referring to the statements made by members of the Colombian trade union confederations, supported their proposal that an ILO mission go to Colombia very shortly to study on the spot the various issues raised here. In that way his Government could help the ILO learn more about the situation in the country. Referring to the Workers' members statement, he firstly rejected most strongly the remark that the agents of terrorism and drug traffickers were acting virtually as government agents. Their acts had to be condemned, and none of them were in any way attributable to or associated with the Government. In carrying out its mandate as elected representatives of the people, his Government had done everything possible to combat these subversive acts. Secondly, he rejected the insinuation that a foreign power should interfere in the internal affairs of a country. There had been interventions which were already forgotten in Latin America. Relations with the United States were excellent. He added that he had not broached the problem of the long list of trade unionists who had been subject to attack in the country because that was not covered by the report of the Committee of Experts. He acknowledged, to his distress, that it was not only trade unionists who were the victims but also presidential candidates, judges, magistrates, police officers, soldiers, entrepreneurs and innocent citizens. All Colombians were concerned over the painful situation in the country and unionists knew, better than anyone else, that it was necessary to put a stop to these subversive attacks. Referring to the comments of the Employers' members, the Government representative stated that he had taken careful note and that the Government would be taking the necessary steps to remedy the situation. He repeated for clarity that the new Act had abolished suspension by administrative authority of the legal personality of trade unions; everything connected with withdrawal or suspension of legal personality was now a matter for the courts. In addition, he repeated that section 450 of the new Act had been misquoted. Lastly, he recalled his wish that the ILO carefully study all aspects of the right to strike and he repeated that a mission should visit the country to note the progress achieved, progress which had been recognised to some extent by the trade union leaders who had spoken earlier.

The Workers' members stated that to arrive at a better situation, two factors were needed: firstly legislation in full conformity with the principles and obligations of the Conventions, and secondly the practical application of their principles and obligations. On the first point the report of the Committee of Experts was clear. Although it noted certain progress with satisfaction, it recalled a series of major questions which had not been resolved. As for the practical application the Committee had heard the interventions of the Workers' members. It was also known that the Committee on Freedom of Association was seized of several complaints and had called on the Government to take measures to end the violence affecting a great number of trade unionists and to strengthen the protection of workers and trade union leaders against acts of anti-union discrimination. On all these points, the statement of the Government representative was regrettable and worrying. Regrettable in form, because although there had been special paragraphs on this case for two consecutive years, there was no written reply to the comments made and only an oral statement which could not be examined in depth. Worrying in content, because the Government was well aware of the views of the Committee of Experts and the present Committee, but only gave assurances of one day arriving at a better situation. They believed that the present Committee should insist on the Government taking measures not only to reply to the questions raised, but to change the legislation to bring it into full conformity with the Conventions. The Workers' members wanted to continue dialogue but the maximum pressure had to be brought to bear for this. They had initially considered proposing that this case be mentioned in the present Committee's report as one of continued failure to implement, but the Experts had noted some progress. They stressed that they would have proposed for the third time a special paragraph for Colombia, but in view of the fact that the Government had asked for a direct contacts mission and in the hope that this mission would take place shortly they would not do so.

The Employers' members noted from the discussion that the situation in Colombia was worrying and had gone beyond the scope of the Conventions. Nevertheless, as concerned the questions to be dealt with here, some things were very clear and had to be changed. They repeated that every necessary step should be taken towards this. As for the suggestion of a direct contacts mission, they recalled that such a mission had taken place in 1988. This was not always the way to settle everything, but they assumed that goodwill was present. Last year, the present Committee's conclusions reflected the Government's request for technical assistance from the ILO. This could be done once again, but they expressed the wish that the mission take place as soon as possible and that corresponding results be achieved.

The Employers' member of Algeria added his deep concern over the situation which was seriously deteriorating in Colombia as regarded respect for the most fundamental standards of the ILO, namely Conventions Nos. 87, 98 and those linked to non-discrimination. The case being discussed here was not new to the present Committee's members and he wished to stress that both workers' and employers' organisations would be able to enjoy the democratic rights flowing from Conventions Nos. 87 and 98. He had seen in his own country the ease with which the struggle for democratic rights could be transformed by the powers that be into a "pseudo-subversive" struggle. He agreed with the Workers' members that, morally, the Committee had to maintain maximum pressure despite the progress noted in Colombia. The direct contacts mission should take place, but he did not wish to see the case being discussed over the years to come. The situation was serious and there had to be respect for the responsibilities and principles accepted by virtue of the Constitution of the ILO.

The Committee noted the information supplied by the Government as well as the discussion that had taken place and submitted them to the Committee of Experts. It took note of the request addressed to the ILO regarding the sending of a direct contacts mission and hoped that it would take place very shortly. The Committee noted with interest certain legislative improvements which had taken place in the application of Conventions Nos. 87 and 98 since last year. However, in view of the deep concern which it had expressed for a number of years in connection with the numerous and serious deficiencies that continued to exist in the law and in practice as regarded the application of the Conventions, the Committee expressed the firm hope that the Government would be in a position to communicate to the supervisory bodies of the ILO as rapidly as possible specific information on the measures taken or envisaged so as to bring the legislation and practice into full conformity with the requirements of these Conventions. In view of the seriousness of the trade union situation which was confirmed by the Committee on Freedom of Association when it examined pending cases, the Committee insisted that the Government indicate that real and substantial progress had been made in its next report.