Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

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

The Government communicated the following information:

The political Constitution prohibits the suspension and cancellation of the legal personality of trade union organisations, and it is appropriate to note that such a provision is also found in Act No. 50 of 1990.

However, the requirement that two-thirds of the members be Colombian in order to form a trade union, the alleged intervention in the internal administration of trade unions owing to the presence of public servants of the ministry at some meetings (particularly when they declare a strike), the requirement of Colombian nationality to be elected a trade union leader, the additional penalty of denying trade union office for a period up to three years where a judge has found a person responsible for the dissolution of a trade union, and the requirement that persons be of the respective occupation or profession in order to be elected as a trade union officer, are matters which were fully referred to in the letter dated 25 October 1991 directed to the Director-General of the ILO (the Government has attached a copy of its letter).

The Government had requested in a letter dated 9 October 1991 sent to the Director-General of the ILO that - considering the importance of the matter - a Convention be adopted on the right to strike. The Government regrets that, the Director-General wrote on 22 November 1991 that, for procedural reasons, he would not be able to include this significant matter on the agenda of the International Labour Conference in 1992 or 1993. The Government takes this opportunity to reiterate its request concerning the urgency of the adoption by the ILO of a Convention expressly concerning the right to strike. It is equally insisting on the fact that this right should not be derived from interpretations which, even if they are valid, are but the opinions of respectable jurists. In this sense it mentions that there are restrictions on the right to strike taking into account that the Labour Minister and the President of the Republic can invoke the arbitration tribunal to resolve the conflicts after 60 days of strike or if the strike affects the whole of the national economy.

In this respect, it is very illustrative to mention the jurisprudence of the Supreme Court of Justice which has considered Law No. 50 of 1990 to be in conformity with the Constitution and has expressed itself on the above-mentioned question in the following manner:

The trade union movement, particularly in moments of its apogee, had always wanted the right to strike to be absolute and unlimited so that collective disputes could only be resolved by its unconditional will; nevertheless, it was recognised that strikes prejudice not only the interests of workers who rely on them to fulfil their aims, but also the aims of the enterprise and, in general, those of the economic order which also deserve the same protection; it was necessary, consequently, to seek a balance between the opposed interests and this was what was understood by those who wrote the Constitution of 1936 which did not permit strikes in the public service and left it to the law to regulate the recourse to strikes in these services as was very judiciously done in the case examined here; the well-known image of the industrial institutions abandoned, useless, left indefinitely to deterioration and unproductivity, as permanent witnesses to the conflict which nobody wanted to resolve to recuperate lost goods and employment itself, led the law to preclude the general impoverishment and social damage made by the obstinate attitude of the parties, by means of alternative methods which do not touch the protection due to all and which now is specifically supported by article 55 of the Constitution according to which "the State has responsibility to promote ... other means for the peaceful solution of collective industrial disputes" as the arbitration court precisely does. (Supreme Court of Justice, Plenary, Decision of 26 September 1991.)

As regards the right to strike, article 56 of the Constitution provides:

The right to strike is guaranteed except in essential services as defined by legislation.

The law shall regulate the right to strike.

A standing committee composed of Government and employers' and workers' representatives shall promote good industrial relations, contribute to the resolution of collective labour disputes and coordinate wages policies and labour policies. Its composition and functioning shall be determined by law.

In performance of this constitutional requirement, the Government has, through the Ministry of Labour and Social Security, called a meeting of employers' and workers' representatives to conclude an agreement on the composition and functions of this standing committee and presented a Bill to the National Assembly on the subject in December 1991. When the law is enacted, the standing committee will, in conformity with the constitutional requirements and its purpose of coordinating labour policy, report on how legislation should be adapted to Conventions Nos. 87 and 98.

In addition, a Government representative, the Minister of Labour and Social Security, stated that the Committee of Experts had confirmed a major improvement in the application of the Convention, although it pointed out that provisions which could be incompatible with the Convention still existed. As regards the legislative requirements concerning nationality criticised by the Committee of Experts (two-thirds of the members had to be Colombian to establish a trade union and persons had to be Colombian for election to trade union office), the new Constitution granted to foreigners the same rights and guarantees as nationals, but provided that the law could regulate these rights. The legislation therefore violates neither the Constitution nor the Convention. Foreigners could form unions, but could not control a union or be union leaders. This was based on national sovereignty, for example, to restrain foreign leaders from calling a strike in industries related to national security. Similar standards no doubt existed in most countries. The trade union central organisations of the country had not objected to the nationality requirements, any amendment to them could, however, be discussed when the tripartite labour commission, on which Congress was soon to pass regulations through a law, was set up. As for the supervision by public servants at meetings of unions of internal management (section 486 of the Labour Code), the presence of public servants was aimed at verifying fulfilment of the majority qualifications set out in trade union statutes, for example, for the calling of a strike. Trade unions frequently requested the presence of public servants when internal disputes occurred. In such cases, the role of the public servant was to collect evidence which would allow conflicts to be solved in the future. With regard to the suspension for up to three years of trade union officers who had been responsible for the dissolution of their unions (section 380(3) of the Code), Act No. 50 of 1990 removed the administrative power to suspend officers. It was now the judicial authority which verified whether a trade union leader was responsible for the dissolution or suspension of a union. Since such dissolution or suspension was ordered by the judicial authority, section 380(3) of the Code did not violate the Convention. With regard to the legislative requirements that persons belong to the trade or occupation in order to be a trade union leader, it was inherent in the nature of a trade union that its leaders belong to the same profession as its members. However, the Government did not insist on this point and was open to dialogue with the trade union confederations; it requested the ILO's technical assistance in this respect. As for the right to strike of federations and confederations, a draft law was before Congress on this subject and would be discussed. There had been developments in the country regarding the right to strike. The previous Constitution had recognised it, except in the public service. The new Constitution of 1991 only laid down restrictions on the right to strike in essential public services, to be defined by the legislature in a future law; there would be tripartite consultation on the subject. Moreover, the Government had requested the Governing Body of the ILO to study the possibility of a future Convention on the right to strike because at present it was the subject of conjured-up interpretations by the Committee of Experts or the Committee on Freedom of Association. The ILO should regulate the right to strike for the sake of judicial clarity. With regard to the power of the Minister of Labour and the President of the Republic to intervene in disputes (sections 448(3) and (4) and 450(1)(g) of the Code), this discretion resulted in the calling of a compulsory arbitration tribunal in conformity with the principles of the ILO supervisory bodies in cases where the right to strike was restricted. As for the possibility of dismissing trade union officers who had intervened or participated in an illegal strike (section 450(2) of the Code), the ILO supervisory bodies recognised the legitimacy of dismissal in cases of illegal strikes and the Convention provided that workers' organisations should respect the law of the land. Accordingly, this section did not violate the Convention.

The Workers' members referred to the report of the Committee of Experts which had drawn attention to the Government's report, the discussion of the Conference Committee in 1991, and the reports of the Committee on Freedom of Association, as well as the 1991 direct contacts mission. They further referred to the Government's written replies and the statement by the Minister of Labour and Social Security. In describing the context in which this case was being discussed, they recalled the large number of trade unionists that had been killed or had disappeared and that the situation had not yet improved.

The Government representative made a point of order to the effect that the question of public order and disappearances and deaths concerned not only trade unionists but also politicians, peasants, soldiers, teachers, children, etc., and asked the speaker to limit himself to matters related to the Convention.

The Workers' members pointed out that the Committee of Experts had referred to this Committee's discussions in 1991 which had made mention of these matters. They pointed out the reason they made reference in their introductory remarks to the disappearances and deaths of trade unionists was in order to set the difficult context of freedom of association in Colombia. They noted the written information given by the Government as well as the legislative measures noted with satisfaction by the Committee of Experts in its report. They referred, however, to the points raised by the Committee of Experts that were incompatible with this Convention. With reference to the requirement that persons be Colombian for election to trade union office, they considered it was still a violation of the Convention even if membership of unions was not prohibited by such law as was pointed out by the Government representative. They welcomed, however, the statement made by the Minister that the Government would be discussing this matter with workers and further hoped that this contradiction with the Convention would be removed soon. With respect to the suspension for up to three years, with loss of trade union rights, of trade union officers who have been responsible for the dissolution of their unions, they rejected the argument that this was not done by the Government but by the labour court because in any event it was the laws of the country that permitted such suspension and those laws are not in conformity with the Convention. They pointed out, as the Employers' members had done in the context of another case, that trade unionists were not asking for immunity from ordinary laws of the country but that this Convention protected them when they acted legally as trade unionists and the law of the country was in conformity with this Convention. Regarding the requirement that persons belong to the trade or occupation in order to be considered eligible for election to trade union office, they were not sure the Government representative had said the relevant laws had been repealed, despite the fact that most trade union officials were from the trade or occupation in question, they considered the law should not prohibit unions from appointing a full-time professional officer. Referring to the Minister's statement that the prohibition of strikes in the public service being repealed except in essential public services, they pointed out possible differences between the Committee of Experts and the Government in their understanding of what constituted essential services. Even though the Convention, as had been stated, did not specifically refer to strikes, they said the Committee of Experts had made it quite clear that strikes should be allowed when workers were acting in defence of their economic and social interests, and any attempts to restrict such rights would be in contravention of the Convention. Without getting into a general debate on the right to strike, they wished to be on record as being in favour of the Committee of Experts' long-standing interpretation of this Convention in this regard. They requested the Government representative to provide the Committee of Experts with a clear definition of what constituted essential public services to enable it to assess the extent of this exception. They stressed the views of the Committee of Experts that if strikes were restricted or prohibited, as in essential services, appropriate guarantee should be afforded such as impartial and speedy conciliation, mediation and arbitration procedures. With regard to the question of illegal strikes, they considered that the problem was not so much the strikes considered illegal under laws that were strictly in conformity with the Convention, but the laws that gave illegal strikes a very wide definition as did the Colombian laws and Constitution. They welcomed the information that was noted with interest by the Committee of Experts of the desire expressed by the Minister of Labour and Social Security to the direct contacts mission which took place in September 1991 to formally request the technical assistance of the ILO in the future process of reform of the labour legislation. They requested this Committee's conclusion to reflect their wish that as a result of this assistance the laws would soon be put in full conformity with the Convention.

The Employers' members felt that the report of the Committee of Experts on this question could be treated in three parts. The first part dealt with the points where national legislation was in conformity with the Convention. Two years ago the Conference Committee had considered devoting a special paragraph to Colombia. Today, however, a number of cases of progress could be observed. The second part pointed out the provision of the legislation that raised certain questions or where the Experts clearly considered these provisions to be contrary to the Convention. They acknowledged that the Government representative had provided some information relating to these points. As regards the requirement that two-thirds of the members be Colombian in order to establish a trade union, and the requirement that persons be Colombian for election to trade union office, while it was often the Labour Code that contained these requirements based on considerations of sovereignty, they noted that the Constitution of the country left the question open, as was often the case in other countries. They pointed out that, following the adoption of laws and directives of the European communities in this area, discrimination based on nationality did not exist in Europe. Given the Government's statement that it was ready to establish a dialogue with workers and employers on this subject, they considered its position to be flexible and that changes could be expected. As regards the suspension of trade union officers who were responsible for the dissolution of their unions, the Employers' members expressed doubts that these provisions would truly protect the trade union officers, and it seemed to them that it was up to the Government to examine this question and prepare amendments to the law in this respect. As regards the requirement that persons belong to the trade or occupation in order to be considered eligible for election to trade union office, they considered that this question was a subject for the union to determine internally and not a subject requiring legislative treatment. Given the statement by the Government representative that his Government was ready to engage in consultations on this subject as well, they felt that the tripartite committee he referred to earlier could be the appropriate body to take up these questions. With regard to the massive dismissals of workers in the public sector and the extended use of short-term contracts in the private sector, they felt there could be reasons other than that mentioned by the Committee of Experts, namely aimed at weakening the trade union movement, to justify such measures. However, they did not feel they should continue the discussion of this aspect at this stage. The third part of the report of the Committee of Experts related to the right to strike. The Government representative had stated that the Convention does not contain precise provisions in this respect and that the ILO should prepare an instrument on the rights and obligations relating to strikes and their restriction. The Employers' members noted that this year a draft resolution had suggested similar points but it had not been given a high priority. Therefore, in their view, it was necessary to limit the discussion to Convention No. 87 at this stage, as that instrument was the basis for the views of the Committee of Experts on this subject. Referring to earlier statements, they requested the Committee of Experts to re-examine their reasoning on the right to strike, as the results of such reasoning do not follow from the text of the Convention. They considered that the Convention should, as the Committee of Experts itself had indicated on other occasions, be strictly interpreted according to the Vienna Convention on the Law of Treaties, in particular articles 31 and 32 which, besides the context, require the taking into account of (a) all prior agreement regarding the interpretation of the treaty or the application of its provisions made between the parties and (b) all prior practice followed in the application of the treaty, using which the agreement between the parties for the interpretation of the treaty was established. The report of the Committee of Experts contained a large number of points on the application of the Convention throughout the world. It was clear from this report that the situation in various countries was so different that there were no common elements to be identified in the application or prohibition of the right to strike. Using the interpretation rules of the Vienna Convention it was clear that the rules supplied by the Committee of Experts for the interpretation of this Convention were clearly incorrect. Indeed, strikes not only adversely affected employers, but third parties as well. The definition of the scope and the prohibition of strikes should not, as a result, be left to the decision of one party; only the State that had fully accepted the democratic rights and liberties of its citizens, should be responsible for the definition of the right to strike and its limitations. The Employers' members considered that this question, along with the others previously mentioned, justified that a request be made to the Committee of Experts for it to once again re-examine its conclusions. The fact that the same conclusions had been reached concerning the Committee on Freedom of Association for many years did not make either these conclusions nor the principles derived from Convention No. 87 correct. Finally, as regards the right to strike in Colombia, the Employers' members disagreed with the conclusions reached by the Committee of Experts.

The Workers' member of Colombia indicated that, during the month of June 1992, nine trade unionists were assassinated and, contrary to the statement made by the Minister of Labour, the situation of unions in Colombia is very grave in law (as indicated by the Workers' members last year referring in particular to Law No. 50 of 1990) as well as in practice. The Government interfered in union activity because of the legal obligation imposed on unions to invite officials of the Ministry of Labour to attend their general assemblies. These officials went to the extent of asking all workers to present their identity papers when a vote was being taken to call a strike. In these circumstances the trade unionists felt obliged to meet secretly at night to avoid reprisals. Even if the new legislation gave automatically legal personality to unions the Ministry has continued to give its approval in a discretionary manner. The extended use of short-term contracts (between 15 days and three months) constituted a serious impediment to freedom of association because the workers involved recognised that their contract would not be renewed if they became members of a union. The great majority of strikes were declared illegal including those that took place in services that were clearly not essential. That was the case during the strike at the Hotel Teguendama following the dismissal of 24 workers when agreement could not be reached in the context of the proceedings signed to settle the labour dispute. Recently, trade union leaders were criminally tried for sabotage and their case given to "anonymous" judges having jurisdiction over cases of terrorism, for having called a strike in a telecommunications organisation. In addition, 27 workers were threatened with dismissal and the president of the organisation concerned as well as the Minister of Labour requested the withdrawal of the legal personality of the union and the suspension for up to three years of the trade union officers. In the oil sector a union was fined millions following a strike. In many instances strikes were called to ask for the right to life of union leaders. Finally, in view of the many grave violations of freedom of association in the country the speaker requested that this case be mentioned in a special paragraph of the report.

Another Workers' member of Colombia stated that the right to form unions did not exist in Colombia in law and in practice because of the elements he would enumerate which were direct and indirect threats to freedom of association. Employment contracts were given in the form of civil or commercial contracts; contracts of very short periods, which actually numbered 1,050,000, were permitted; the right to appeal decisions concerning requests for re-employment of workers with ten years of service but who were dismissed without reason; a grace period of ten years was given to enterprises during which they did not apply the same bargaining unit to all their subsidiaries, thus weakening the results of collective bargaining which would have been beneficial to trade unions; temporary work was facilitated and the establishment of organisations providing such services was promoted which hindered unionisation; collective agreements were concluded with non-unionised workers; Law No. 60 and its implementing decrees created systems of dismissal and mass retirements based on blackmail promoting retirements with negligible compensation for employees of the State (400,000 such retirements and dismissals are expected in the coming two years); all public services, including land irrigation, the production of cement, the financial and petroleum sectors, were declared essential services with a view to making all strikes illegal; recently employers were permitted to make complaints under criminal law in the case of strikes in order to hinder the enjoyment of the right to work; penalties equivalent to minimum wages of 80 months were imposed on the petroleum workers' union for having organised two to three hours of work stoppage; strikes were considered crimes of terrorism and were submitted to "anonymous" judges during which procedures access to files was not permitted. Given the fact that laws and the practice in the country were not in conformity with the Convention and no progress has been observed and 102 trade union members and leaders were assassinated in the past year, the speaker requested that this case be mentioned in a special paragraph and that the ILO should provide technical assistance in the drafting of future labour legislation.

A Workers' member from Spain stated that the improvements in the laws mentioned by the Committee of Experts should be assessed in the context of the low level of respect given to union rights in the country. The speaker felt that provisions in the law regarding the supervision of the internal management of unions including the presence of public servants in the general assemblies were unacceptable because they indicated the prevailing lack of confidence in unions and the fact they were objects of suspicion unlike other organisations. He stated that unions were not anomalies in society but were necessary elements for progress in the country as indicated by the past 40 years of tripartism in Europe. In addition, he found the prohibition of strikes by federations and confrontations was unacceptable because the Convention gave the same rights to these organisations as it did to trade unions in general and constituted an essential part of freedom of association. Referring to the statements of the Minister of Labour on the interpretation of the right to strike made by the Committee of Experts he rejected the view that these interpretations were conjured up by them and said on the contrary that the Experts were as indispensable as judges and lawyers were to giving meaning to constitutional rights. Finally, he stated that a government that did not guarantee the right to life was not worthy of the name. He pointed out that in Colombia, as previous speakers indicated, trade unionists were assassinated and tortured constituting grave violations of the Convention.

A Workers' member of Greece denied that trade union rights of foreigners were restricted in all countries for reasons of threats to the security of these countries and cited the cases of Belgium and Germany where immigrant workers were part of the trade union leadership. The question of internal security in the context of a strike arose only with respect to certain particular sectors. He urged that the legislation be put in conformity with the Convention and that the Government should indicate its intentions in this regard and request the technical assistance of the ILO.

A Workers' member of France stated that the interventions previously made by the Colombian trade unionists demonstrated, if it was still necessary to do so, the extent of the difficulties with which the trade union movement was presently confronted in Colombia. He noted the limitations on trade unionism in this country: the problem of foreign workers, raised by the Workers' member of Greece; that of part-time workers, the number of which was constantly increasing; and the interference of political power in the trade union movement, notably through the presence of authorities in general meetings held to take strike votes. In respect of the request of the Employers' spokesman that the ILO adopt a Convention concerning the right to strike, he stated that this was not the ideal time to discuss the report and the views of the Committee of Experts concerning the scope of freedom of association. The right to freely organise their activities and to formulate their programme of action, provided for in Article 3 of the Convention, was a prerogative of trade union organisations, and for this reason since 1919 one had refrained from curbing or limiting its application by means of a Convention. The strict framing of the right to strike must be avoided and the provisions of the Convention respected. The Workers' member of France emphasised that the best way to assist the Government to develop legislation was to formulate firm requirements in the conclusions of this debate.

A Government member of Germany referred to the comments of the Committee of Experts on this case, and the written statement made by the Government and said that there were no means to verify many of the events described and, although these matters were quite shocking, they did not constitute the matters upon which it was necessary for the Committee to pass judgement. He noted that considerable progress had been made, although there remained significant discrepancies between national legislation and the Convention. However, he emphasised that this view did not apply to everything that had been said, nor to all the findings of the Committee of Experts concerning restrictions placed on the right to strike in the public service.

Another Workers' member of Colombia stated that in his country there was neither justice, democracy or free trade unionism, and that he was required to speak before the Committee, because to remain silent would be to betray the confidence of those who had sent him to the Committee to defend their rights. In his country, there existed a so-called anonymous justice, which permitted the judging of someone without his knowing who was judging, who was accusing or of what one was accused. A number of trade union leaders of the national telecommunications company who had engaged in a strike when it wanted to privatise the enterprise, were being judged today by anonymous judges. This year, at the time of the 500th anniversary of the discovery of America, indigenous persons had been murdered because they were looking for a bit of land where they could work, land which always had belonged to them. He considered that the Government of Colombia deserved to have the case of this country included in a special paragraph.

A Workers' member of Uruguay referred to the consequences of the policy of indiscriminate rationalisation and privatisation of public enterprises. He stated that the right to strike was an inalienable right, the tool which workers had in order to defend themselves, and for this reason restrictions on this right meant that there would be a reduction of its most important means of defence. With reference to that which had been stated by the Government representative to the effect that it would be appropriate to adopt an international labour standard on the right to strike, he asked whether what the Government representative wanted was to impose restrictions, and indicated that the Committee on Freedom of Association has stated that limitations on the right to strike could only be justified in cases in which strikes ceased to be peaceful. He recalled that in Colombia trade union leaders had been murdered, strikes were prohibited, there was no freedom of association, and Convention No. 87 was being contravened; he therefore asked the Committee to include the case of Colombia in a special paragraph.

The Government representative stated that his country guaranteed freedom of association to foreigners. but it was another matter to permit a group of foreigners to be able to dominate a trade union and to declare a strike. Regarding the clear constitutional definition in respect of the right to strike, he indicated that the Constitution guaranteed this right except when essential services were involved, but that such services still had not been determined: this was a task for Congress. He considered that the situation regarding the right to strike was different according to the country in question, and according to its development. The reference which he had made to the possibility of adopting an instrument of this nature did not mean that his Government wished to limit the right to strike. This right had been found to be limited, even by the Committee of Experts; for the Committee, the freedom of association which had been established did not allow strikes in essential public services or in the public administration. The purpose of his proposal that an international instrument be adopted on the right to strike was to set out the limits for this right. In reference to the intervention of the Workers' member of Spain to the effect that his Government did not respect the right to life, he emphasised that his Government did respect the right to life, not only as required in international instruments on human rights, but also under the national Constitution, and on behalf of his Government he fervently rejected this allegation. He referred to the difficult situation in his country, an excellent place for drug traffickers, but rejected the insinuation to the effect that the murder of a number of indigenous persons was owing to inaction on the part of the Government. His Government was struggling against such circumstances, and it seemed that other governments, for example Spain and the United Kingdom, were experiencing similar circumstances in respect of terrorist activities, without one being able to suggest that they did not respect the right to life.

The Workers' member of Colombia stated that the Government had not responded to the question which had been raised in respect of the situation of the trade union movement, and reiterated his question as to what were the essential public services in Colombia, as the absence of definition in the legislation left the determination of such services to the free will of the Government.

A Workers' member of Ecuador stated that he shared the different opinions expressed in the Committee on the report of the Committee of Experts, which had recognised that Colombia had made some progress in implementing legislation. Nevertheless, he observed that in their interventions the Workers' members had stressed the discrepancy between such provisions and practice. He referred to the intervention of public servants at trade union meetings, which according to the Government representative was intended to guarantee the democracy of the decisions which trade unions were adopting. In his opinion, this involved a clear violation of the Convention. He considered that the Government had an interest in eliminating such participation in trade union meetings, and that such participation might lead to suspicion in the cases of murders of trade union leaders, in that there could be established a cause and effect relationship between these matters. The speaker observed that presently the rights of workers guaranteed under ILO Conventions appeared to be becoming fewer. In this context, he clarified that trade union freedom which was not accompanied by the right to strike as an indispensable complement was a non-existent freedom of association.

A Workers' member of Chile stated that Chilean trade unionists had extensive experience in respect of restrictive laws on the trade union movement. After having heard Colombian trade unionists and those exercising public power in that country, he considered that he was confronted with a reality that was characteristic of Latin America. The restrictive laws which existed in Colombia existed in Chile and were characteristic of a dictatorship. He believed that Colombia was a country that wished to improve the institution of democracy, but which could not do so without the workers. Free workers not only exercised the right to strike but also constructed peace together with employers and politicians. He wished that the Government representative would say whether the authorities really had the will to respect the Convention. He hoped that in 1993 they would not speak more about murders, and that Government representatives would not need to give explanations. He also hoped that in the coming year the Government would show more respect for the rights of workers and human rights, so that workers could play an appropriate role in the development of their country.

A Workers' member of Greece stated that there must have been a misunderstanding, because no one had confused political power and judicial power. The latter, in all democratic countries, involved only the interpretation and the application of laws. The Government was requested to change national legislation in order to bring it into conformity with the Convention. In addition, he asked the Government whether it intended to request technical assistance from the ILO for this purpose.

The Workers' member of Spain referred to the intervention of the Government representative. He indicated that the essential difference between what was occurring in Spain and Colombia was that in Spain it was known who was committing the murders and acts of terrorism. The State was taking responsibility for the elimination of such murders and had succeeded in reducing their number. He requested the Government representative to respond to two questions: when was the control which the administration exercised over the trade union movement by the presence of a public servant at trade union meeting going to disappear, and when was it going to recognise the confederations and the right to hold strikes?

The Workers' members stated that the Colombian Workers members' had provided useful information in describing the types of strikes that were banned as "essential services", such as those in the hotel and oil industries. They noted that such an interpretation of "essential services" was not a correct application of the principles of the Convention. They agreed that there was a generally accepted distinction between government and judiciary in such countries: the Government established laws while the judiciary applied them, but he emphasised that if the law was wrong the Government could not use the judiciary and its independence as an excuse for lack of action. In their view, the law was wrong and needed to be changed. The Government referred to acts of terrorism which had taken place in Spain, the United Kingdom and the United States which infringed upon the right to life. The Workers' members stated that if hundreds of trade unionists disappeared and even worse were killed every year in those countries, there could be no doubt that these facts would be of concern to this Committee and the subject of considerable discussion. There were death squads operating in Colombia that were killing trade unionists, and this fact could not be ignored. They declared that they did not believe that it would be helpful to reopen the debate on Convention No. 87 and the right to strike. They noted that a resolution in respect of this issue had been placed on the agenda of the Resolutions Committee, and had been given low priority. In their view this was an indication that both Workers' members and many governments at this Conference felt that the more detailed examination of these issues would not be helpful and certainly the work of the present Committee might become chaotic during the course of an examination which could take many years. Governments who had been strictly following interpretations of the Committee of Experts on the right to strike would begin to doubt the correctness of their application of the Convention if the principle became the subject of lengthy examination. The Committee of Experts' stated view on the issue had been clear for decades and had not been challenged except in the last year or two by the Employers' group and now the Government of Colombia. The Workers' members suggested that the Government be asked whether it would be prepared to accept technical assistance from the ILO. Although they had seen the first signs of movement towards conformity with the Convention, they stated that they wished the conclusions of the Committee to be strong enough to establish that the Government still has a considerable way to go before they were fully in conformity with the Convention.

The Employers' members stated that, despite the many problems faced by its country, the Government had managed to take positive steps in respect of the Convention, which had caused the Committee of Experts to note this case as where progress had been made. In reference to the distinction made between law and interpretation of the law, they noted that where the law was unclear or contained loopholes, the interpretation of the law became independent as it stepped in to clarify and apply the law. This was also true of Convention No. 87, in respect of which a body of case law had developed which was extremely favourable to the Workers' case in the present situation, although in their view the content of this case-law could not be derived from the Convention. However, as the Committee of Experts had made lengthy statements about the right to strike and restrictions on this right, they must be addressed by this Committee.

The Committee took due note of the written and oral information provided by the Government. It also took note of the progress being made in conformity with the Convention, and it felt bound to recall that there still were different points raised by the Committee of Experts where the law was in conflict with the Convention. The Committee noted, however, that the Government was settting up a tripartite commission to prepare a draft Bill which the Government intended to bring before Parliament. It also took note of the Government's willingness to ask for technical assistance from the ILO. The Committee remained concerned about the situation - not only the legal one - existing in the country. It therefore urged the Government to take all necessary steps to bring the legislation into complete conformity with the Convention at its earliest convenience in order that the Committee could make a full assessment of the same at its next session.