Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

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

A Government representative stated that some elements of the statements made by the Minister of Labour to this Committee last year were still valid. In fact, the presence of the authorities, in accordance with the law, at some trade union meetings, as well as their interventions with regard to their by-laws and in other cases (for example, internal conflicts) was requested by the unions themselves. The prohibition in the law of members representing the employer before his workers, or members of the top management of an enterprise from becoming members of the executive of a trade union was intended to ensure the autonomy and independence of trade unions from the employers. He recalled that in 1991 a new constitution was adopted and the task of harmonizing legislation with the constitutional standards would involve much work and require a lot of time going beyond the mandate of the current Government. The Government, however, was committed to consulting the social partners in the elaboration of the necessary labour standards. In this respect, the Government wished to hold consultations with regard to the tripartite committee provided for in the Constitution (formation, duties, etc.) and with regard to the definition of essential public services (entrusted to the Legislature by the Constitution). However, not all the information requested from the social partners had yet been received. The Government hoped the Congress would set aside time for the harmonization of the legislation with the Constitution and ILO Conventions which were part of national legislation. With regard to the concern expressed by the Committee of Experts at the serious climate of violence prevailing in the country, he reiterated the position stated by the Minister of Labour last year which excluded the public interest from the scope of the Convention and added his Government would be among the first to share this concern about the prevailing climate of violence while, at the same time, rejecting the existence of a policy that violated freedom of association and other human rights. This climate of violence was the result of innumerable conflicts between guerrilla groups and other groups linked to drug trafficking. After describing in detail some of his Government's major successes against these two plagues, he stated that the victims of assassinations were not only trade unionists but also included ministers, prosecutors, presidential candidates, directors of papers and journalists, state officials, judges and citizens. This was a general phenomenon and did not only affect trade unionists. Many trade unionists had been assassinated in the Utab region by their former comrades in arms when some guerrilla groups decided to join the peace process. Finally, he stressed the total adherence to human rights and democratic principles of his country's Constitution.

The Workers' members recalled that this Committee had discussed this case at length last year. The Committee of Experts also had noted some progress in 1992 while noting a series of discrepancies between the national legislation and the principles of freedom of association. In 1993 the Committee of Experts, basing itself on the conclusions of this Committee in 1992, had noted again that such discrepancies continued to exist. The Workers' members also indicated that the Committee on Freedom of Association had examined seven complaints against Colombia containing very serious allegations that threatened the life and security of trade unionists and the right to collective bargaining. The Committee of Experts had expressed its concern about this serious climate of violence which made the exercise of freedom of association very difficult. In view of the lack of progress, the Workers' members supported the request made by the Committee of Experts that the Government amend the provisions of the law which impeded the exercise of freedom of association and put an end to arbitrary administrative practices, and thus ensure, in practice, the enjoyment of the freedom of association. They considered that the appropriate framework to prepare the necessary changes existed, and referred to the tripartite national committee provided for in the Constitution and mentioned by the Government in 1992, and to the technical assistance of the ILO. Last year, the Government had stated that this tripartite committee would be set up and that its objectives were set out in broad terms. It appeared to the Workers' members that, since then, this tripartite Committee had not yet been set up and it was no longer a priority of the Government. This was why they asked, as had the Committee of Experts, that the law and practice be brought into conformity with the Convention and suggested in this respect that the national tripartite committee be involved in these changes. With regard to the various limitations on strikes and the right of the Minister of Labour and the President to interfere in labour conflicts, the Workers' members referred to the jurisprudence of the Committee on Freedom of Association which only permitted recourse to compulsory arbitration in the context of essential services in the strict sense of the term. This jurisprudence had been specifically confirmed by the Committee in cases concerning Colombia. They repeated their concern at the repressive measures taken in a climate of violence which, for example, labelled striking workers as terrorists, and urged the Government to take the necessary legislative and practical measures so as to ensure the full application of the Convention. They expressed the wish that the conclusions of this Committee should be drafted in the strictest of terms, in view of the doubts concerning the Government's real commitment to cooperating with the supervisory bodies of the ILO so as to ensure progress in this case and all the more so since this case had already been the subject of a special paragraph two years ago. They considered that mere declarations of intention by the Government did not suffice.

The Employers' members pointed out that it was necessary to weigh the climate of extreme violence prevailing in the country in drawing any conclusions in this case. They pointed out that last year the Committee of Experts had noted that some progress had been made but has, this year, raised ten points of varying importance that required improvement. With regard to the discrepancies involving the internal management of trade unions, the Employers' members shared the comments of the Committee of Experts which considered them to limit clearly freedom of association. With regard to the limitations on the right to strike, they reiterated their position stated in 1992. The Government had often stated its readiness to take measures regarding strikes as shown by the draft law submitted to Parliament and by the new Constitution of 1991. Nevertheless, with regard to essential services which according to the Constitution were to be defined by law, the Employers' members stated that this was, in principle, acceptable but that one would have to wait for the adoption of the said law and its application in practice before being able to assess the situation. With regard to intervention by the authorities in collective disputes by convening a compulsory arbitration tribunal, the Employers' members fully shared the Committee of Experts' position. The Committee of Experts stated, however, that when a strike was declared unlawful on the basis of a national standard which contravened the principles of freedom of association, the dismissal of trade union leaders, even if it was lawful, would be contrary to the Convention. The Employers' members stated that it was difficult to understand this position of the Committee of Experts, given that it was derived from a hypothesis based on something outside the scope of the Convention. With regard to the other points concerning the necessary amendments mentioned by the Committee of Experts, the Employers' members noted the progress already made, but pointed out that additional measures needed to be taken. Taking into account the difficulties faced by Colombia today, they were of the view that the choice was between being more patient or, on the contrary, applying more pressure. Many of the practical violations of the Convention were not attributable to the Government. That was why one had to maintain a critical dialogue with the Government taking into account the improvements already noted by the Committee of Experts and remembering that this was an extreme situation. The Employers' members hoped the Government would provide a very detailed report so as to enable them to examine the case in detail next year.

The Workers' member of New Zealand stated that he wished to associate specifically the New Zealand Workers with this case because of the seriousness of the allegations. He stated that the reference by the Committee of Experts to a "serious" situation of violence "preventing full exercise of the trade union activities", while acknowledging respect to the learned Committee and its concern to be neutral, was a serious understatement of the intimidation and horror of the reality of life for trade unionists in Colombia today. From the information in the Committee of Experts' Report, and the additional information made available by the Workers, it was clear that there was a sustained campaign of legal frustration and obstruction, as well as brutal killings and intimidation, directed at curtailing collective workers' organizations and bargaining in Colombia. He stated that he could only feel humble that workers and union officials in Colombia continued to attempt to exercise their rights in such a dangerous situation. This was a case where one felt very strongly the frustration of the Committee of Experts, reflected in its comments in paragraph 111 of its Report, regarding the inadequacy of sanctions to secure observance of Conventions - particularly where such gross violation of basic human rights were concerned.

A Workers' member of Colombia stated that in his country it was impossible to develop trade union life because social action was treated as a crime. His Government, under the pretext of combating drug trafficking, had adopted an anti-terrorist Decree and established laws on public order, but in 1992 only 6 per cent of the 618 persons detained under this law were drug traffickers and guerrillas, the rest being persons belonging to social organizations. He explained that the above-mentioned anti-terrorist statute established a procedural system which did not recognize the right to a defence and the principle of public trials, and established secret judges, public prosecutors, magistrates, witnesses, evidence and experts. Seventeen workers of the TELECOM enterprise had been jailed under this statute, and the president of the principal Colombian refinery was detained after having discussed a list of demands and having obtained a satisfactory agreement for the workers. The speaker himself had been threatened by the General Public Prosecutor with possible criminal proceedings for having obstructed justice, after a visit in order to discuss the application of the above-mentioned system to trade unionism. The anti-terrorist Decree increased penalties disproportionally, established special procedures for complicity, covered up much misconduct at the discretion of judges and converted the labour struggle into a political crime. Moreover, he indicated that different criminal provisions applied to trade union activities. Under section 290 of the Penal Code, which established the violation of the freedom to work as a crime, trade union leaders of the cement industry were ordered to pay the equivalent of $1 million and sentenced to seven months' imprisonment. The trade unionists of the banking sector were sentenced for "obstruction of work", and those of the National Archives for giving out posters that were supposedly slanderous on the basis of a request made by an employer, and for the supposed falsification of a trade union document. In addition, the arrest of the Secretary-General and President of the National Federation of Cocoa Workers was ordered, as well as the seizure of their property. He regretted that the Government continued to repeat that it would bring the legislation into conformity with the Conventions, at the same time as it accepted the tripartite committee which made unilateral decisions, as in the case of the increase of the minimum wage, and the dismissal of 40,000 public servants, among other examples. In the same manner, the Government decided to reject a draft labour statute endorsed by a million signatures that had been submitted, and justified this by stating that no rules had been established for the plebiscite initiative which was provided for under the Constitution. Finally, he referred to the high number of murdered trade unionists, and the impunity for these crimes which the Government had not acted against, and requested that the Committee record the case in a special paragraph.

Another Workers' member of Colombia regretted having to relate once again the serious circumstances which were oppressing workers with regard to freedom of association and human rights. In his country there was no guarantee for the development of trade union activity, given that many trade unions were destroyed in their formative stages and were established in secrecy. He considered it uncertain that the new law would envisage automatic legal registration of a trade union, since in practice the same legal obstacles continued as before, so that one could not speak of legislative progress. He stated that in his country this Convention was not respected and that a disturbing process was developing of penalization and criminalization of the trade union and labour struggle, with serious repercussions for workers. He gave as examples the situation in respect of air-traffic controllers, and the ECOPETROL and TELECOM firms whose workers had been repressed violently solely for the crime of having defended national sovereignty by opposing the privatization of these firms. Presently, 13 workers were detained for having exercised their rights, having been judged by "faceless judges" under accusations of terrorism, with secret witnesses and evidence and serious restrictions on the lawyers for the defence. Three other leaders of the TELECOM trade union, including its President, Eberto Lçpez, were being persecuted and obliged to live in secrecy. He indicated that the firms had been militarized and that in general the workers were experiencing a repressive and humiliating situation. He stated that the murder of trade unionists continued without the Government taking appropriate measures to combat the adversity resulting from such violence. In his opinion, the problem could not be resolved by declarations of civil war, but only through far-reaching social changes. He did not agree with and it seemed inacceptable to him that a link between the guerrillas and the trade unions was alluded to because, among other reasons, the fact that such a link had been made had resulted in numerous murders of workers. He referred to the restructuring and privatization decrees issued in December 1992 which resulted in the dismissal of more than 50,000 state workers and to the abusive use of the concept of essential public services which went so far as to include the hotel industry. He requested that the Committee take measures to prevent the destruction of the trade union movement and the sentencing of the TELECOM trade unionists to long prison terms, and requested that this case be recorded in a special paragraph because of the constant violations of rights of workers and of human rights. He gave the Office a file with information on different aspects raised in his intervention so that they would be made known to the Committee of Experts.

A Workers' member of Panama indicated his concern about the situation described by the Workers' members of Colombia and the explanations of the Government representative that, in his opinion, seemed to justify the murders of trade unionists on the basis of the fact that, in Colombia, not only trade unionists but also judges and presidential candidates were murdered. He considered that this was a serious case involving violations of human rights that should be recorded in a special paragraph of the Report of the Committee.

A Workers' member of France regretted that more and more countries were delaying bringing their legislation in conformity with the Conventions. He stated that, according to the report of the Committee of Experts, in order to form a trade union in Colombia, two-thirds of its members must be Colombians which would exclude foreign workers who would then not have the possibility to express themselves. In addition, he noted that strikes could only be declared at the level of the undertaking, in the presence of a representative of the authorities, which amounted to interference by the Government in trade union activities. He wondered what protection trade unionists had against dismissal in a country that was in the process of opening up its market within the framework of the Andean Pact.

A Workers' member of Spain stated that with regard to the case of Colombia each year the Government repeated the same arguments in this Committee, namely, that the interference by the authorities in trade union meetings was a result of requests made by the trade unions themselves and that in Colombia not only trade unionists but also journalists, government representatives and judges were murdered. He indicated his concern with regard to the so-called "faceless justice", which offended all the most basic legal principles, and to the confusion between trade unionism and terrorism which was an offence to the trade union movement.

A Workers' member of Botswana stressed that the extensive legal repression of the Colombian trade union movement was of utmost concern to African trade unionists. He noted that in Colombia during 1992 more trade unionists were killed than in any other country, and that 800 had been killed since 1987. They were subject to constant intimidation as a direct consequence of activities, whether trade union political or linked to industrial disputes, and as a consequence of their demands for economic, social and human rights for their members. He considered that it was particularly disturbing that those who had committed violations of the right of freedom of association had been able to do so with impunity. For this reason he firmly supported the proposal of the Workers' members and hoped that very severe conclusions would be adopted in this case.

A Workers' member of Germany stated that he was very concerned by the situation in Colombia, where trade unionists were the victims of a large number of arbitrary arrests, summary justice and persecution organized by paramilitary groups. He was surprised that the Employers questioned the findings of the Committee of Experts concerning the exercise of the right to strike and the dismissal of trade unionists in this country. Considering the principles proclaimed under Article 8, paragraph 2, of this Convention, he observed that if an internal law contradicted the Convention, such as the case of a dismissal that was contrary to the Convention, employers were expected to take a clear position on the basis of these principles. Finally, he invited the Committee to formulate very firm conclusions and to mention this case in a special paragraph of its report.

The Government representative mentioned the clear obligations contained in the new Constitution, the labour statute which should be promulgated by Congress, the integration of ratified Conventions into the internal legal system, the definition of essential public services and the regulation of the tripartite committee which had been established by the Constitution but which required the adoption of laws to regulate its composition and functions. In referring to that which had been stated by one of the Workers' members of Colombia in respect of the presentation to Congress of a draft labour statute, he indicated that rules governing popular initiatives provided for under the Constitution had still not been made, and that in any event the decision was to be made by Congress and not by the Government. With regard to the Terrorist Statute and its application to the TELECOM workers, he indicated that the strike concerned was a political strike and that for this reason it had been declared illegal. He explained that the Government had requested the courts to, on the one hand, cancel the legal personality of the TELECOM trade union and, on the other hand, to investigate the criminal acts which could have taken place during the strike. The first was rejected and the second, by a decision of the Public Prosecutor was divided into two separate trials, one before ordinary courts and the second before the anti-terrorist jurisdiction. He referred to the dismissals in the public sector which, he explained, were due to changes in the structure of the State and the national economy. By way of example, he stated that the sector for prior control of public spending had been eliminated, leaving 7,000 workers without employment, and the customs sector where, because of the opening up of imports, officials who had been previously responsible for issuing import permits had lost their employment. He pointed out that compensation and retirement plans had been drawn up which had covered many workers. He contested the assertion that he wished to excuse the death of trade unionists on the basis that there were other murders as well, that he had referred to the need to take into account the overall context in the country, and that he had wanted to establish a link between the guerillas and trade unionism. He indicated that the Government was interested in demilitarizing the country; evidence of this was that for the first time since 1948 the Minister of Defence and the Director of the Administrative Department for Security were not members of the military. With regard to the Andean Pact, he indicated that the promise of a free trade zone would involve problems of adjustment and that the Government would endeavour to give all necessary support to national industry and agriculture so that they could face the competition. He emphasized that his Government took its human rights obligations seriously, proof of which lay in the fact of its voluntary submission to the Inter-American Court of Human Rights.

The Committee took note of the written and oral information provided by the Government representative. The Committee noted its understanding of the serious violent situation confronting the country. The Committee observed that there were still numerous and serious differences between legislation and practice and the principles confirmed by the Convention in the different points raised by the Committee of Experts for several years. The Committee took note with interest that the Government had expressed the will to come to terms with the social partners in labour matters. Nevertheless, the Committee could not fail to note that no progress had been made since this case had been examined in June 1992. The Committee expressed the firm hope that the tripartite committee responsible for drawing up draft legislation would complete its task within a short time period. The Committee continued to be deeply concerned by the situation, both in fact and in law, regarding trade union matters, and urged the Government to adopt urgently the necessary measures, with the technical assistance of the ILO if it wished, in order to reconcile its legislation with the Convention so that the Committee could take note, in the very near future, of concrete and significant progress in this matter.