Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

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

A Government representative highlighted the mechanisms of labour participation in the elaboration of national policies, referring in particular to the creation of the National Competitiveness Council, the Sectoral Competitiveness Committees, the Tripartite Advisory Committee for Productivity, the Tripartite Follow-Up and Evaluation Committee for the "More and Better Jobs" Project, as well as the National Council for Planning.

She referred to the progress achieved in her country in connection with the social consensus, which was related to the observations made by the Committee of Experts. Last December, in Colombia, the Tripartite Productivity, Prices and Wages Social Pact was signed with the participation of the Government, employers and organized workers. In this forum for consensus and agreement, there was a discussion about common topics. Among the many agreements reached within the Social Pact, one that could be highlighted was the agreement to establish the Tripartite Committee for Trade Union Development, as an advisory body to the Government, in which employers, workers and the Government were represented. This Tripartite Committee temporarily replaced the Standing Tripartite Committee for Consensus on Labour and Wage Policies whose draft legislation is currently before the Congress of the Republic.

The Committee for trade union development analysed the articles of the national Constitution related to trade union rights and guarantees; provided recommendations concerning plans and programmes for education and training of workers and management in aspects related to trade union rights and the incorporation of new technologies; prepared the study and proposal for actions necessary to strengthen the trade union-management relationship with a view to improving the quality of work and to increasing employment; and proposed the adoption of an institutional campaign to promote a new culture for labour management relations.

In the Tripartite Committee for Trade Union Development, the national Government agreed to develop certain topics of a constitutional nature, such as the regulation of the guarantee of trade union rights for public employees. In addition, there was an agreement to set up committees to study collective bargaining in the public sector, and the regulations under article 56 of the Political Constitution related to strikes and essential public services.

As part of this fundamental agreement, the Government further agreed to implement the Dissemination and Training Programme for the Establishment of a New Culture of Cooperation in Labour Relations, which could count on the support and cooperation of the ILO at the request of the signatories.

The speaker then specifically referred to the observations made by the Committee of Experts. In connection with the suspension, for up to three years, with loss of trade union rights, of trade union leaders who have been responsible for the dissolution of their unions, she clarified that the legislation in force sets forth that only judges of the Republic are empowered to impose such sanctions. Section 380(3) of the Labour Code contains this provision. In this regard she mentioned paragraph No. 122 of the 1994 General Survey of the Committee of Experts on Freedom of Association and Collective Bargaining which provides that any removal or suspension of trade union leaders which is not the result of an internal decision of the trade union, a vote by members or normal judicial proceedings, seriously interferes in the exercise of their functions as trade union leaders.

She indicated that in connection with the issues related to the prohibition on more than one trade union in an enterprise, the supervision of the internal management and meetings of unions, the requirement that, in order to form a union, two-thirds of its members must be Colombian, and the requirements for eligibility for election as a trade union leader, the Government proposed to study these questions on a tripartite basis within the Standing Committee on Labour and Social Policy.

As to the right to strike, she indicated that the issue concerning the prohibition of the right to strike in public services, would be discussed by a tripartite committee set up as a result of the agreements reached in the Committee for Trade Union Development. There would be an analysis, in particular, of regulations concerning essential public services, before the Government submitted a draft law to the Congress of the Republic.

With regard to the possibility of dismissing trade union leaders who had participated in an illegal strike; the presence of the authorities at general assemblies gathered to vote on the calling of a strike, or the convening of an arbitration tribunal; the prohibition on federations and confederations from calling a strike; and the power of the Minister of Labour to refer a dispute to arbitration when a strike lasts for 60 calendar days, she indicated that the right to strike was a legal institution which had made considerable progress in terms of labour standards and jurisprudence in Colombia. The possible limitation or regulation of this right was based upon the collective interest of a country which was insufficiently developed and which had to protect its economic and social infrastructure for the benefit of the workers themselves, as a way of protecting their source of income, and any breakdown in the social structure which can affect the essential services of the community should be avoided. In this regard, she noted paragraph No. 151 of the previously mentioned General Survey to underscore that the right to strike could not be considered as an absolute right. The establishment of regulations and the setting of parameters and limits to the right to strike permitted a balance of opposing interests, preserving the general interest.

The Workers' members observed that the case of Colombia concerning Convention No. 87 was discussed in 1990, 1991, 1992 and 1993 and it was important to recall previous discussions with regard to this case as the situation in Colombia was still extremely serious. The disappearance, murder and imprisonment of trade unionists in Colombia continued unabated. They noted that, according to the Amnesty International report on Colombia, the Government had taken an important step in acknowledging the extent of the human rights violations and the responsibility of members of the security forces. The new Government had stated that human rights would be a priority issue. Nevertheless, throughout 1994 and the first half of 1995, extrajudicial executions, disappearances, torture and death threats carried out by members of the security forces and the paramilitary forces have continued. They referred to the annual survey by the ICFTU of violations of trade unions' rights worldwide. In the opening paragraphs of the report dealing with Colombia, it was noted that, during the first two months of the new presidency, 27 trade unionists were murdered; it was reported that at least 187 trade unionists were killed during 1994.

The Committee of Experts' report referred to a number of laws which were not in conformity with Convention No. 87, and many of these points had been outstanding for years. They observed that it was encouraging that the tripartite committee was now dealing with a number of issues contained in the Committee of Experts' report. They hoped that the tripartite committee would have before it the report of the Committee of Experts on Convention No. 87, that they would be addressing the issues contained in this year's and previous years' reports, and that they would be reporting promptly to the Government recommending legislative changes which could be made to bring Colombia into conformity with Convention No. 87.

They further observed that the ban on more than one trade union was regarded in the past by this Committee as a very important issue. From the Government's past point of view, it was thought that authorizing other trade unions would weaken the trade union representation. They observed that the Committee of Experts had stated that the Convention did not impose trade union diversity on a country. It stated that, if the members of trade unions, or individual workers, want to form trade unions, then the Government should not prevent them from so doing. They recalled that many years ago there were a number of States in the Communist bloc where single trade unions were imposed by law on the workers of a country, and something like that has persisted in Colombia. They noted that it was very difficult for a new trade union to be created due to the prior legal formalities required, and that this was a violation of the Convention.

The Workers' members then referred to the strange and threatening practice of public servants supervising management and the meetings of trade unions, as well as the presence of authorities at meetings called by trade unions to decide on arbitration or a strike. These "authorities" were in fact the security services. They observed that this sort of supervision was unhealthy, interfered with the work of trade unions and should cease. They observed that, if the Government were willing to put this to the tripartite committee, thus indicating a willingness to change these laws, no one would be more pleased than the members of this Committee.

They then referred to the obstacles for those who wished to hold trade union office: the Government preferred Colombian nationals with work experience, at least six months' experience in the work of the trade union or in the work covered by the trade union, and persons not in the process of being sued for ordinary offences at the time of their election. They considered the last point very dangerous since all that was required to disqualify someone was to sue him. Moreover, they observed that in many trade unions throughout the world people become trade union leaders who do not have a specific professional relationship with the trade union they are heading.

With regard to strikes, they noted that it was never argued that the right to strike was absolute, and there must be restrictions on the right to strike. Indeed, the Committee of Experts does not recognize an absolute right to strike: there must be restrictions, but the Experts have laid down the restrictions. The Workers' members noted that the right to strike has been defined over the years by the Committee of Experts which considers that it is a fundamental part of the right to organize and the right to collective bargaining. To the extent that there must be some restraint in some areas and under some circumstances, the right to strike is less than absolute. They observed that, in the case of Colombia, strikes are not banned generally, although they are in certain areas.

In concluding, they observed that this year the report of the Government was more helpful than it had been in the past, and that if the indications provided on the issues could mature on the basis of tripartite consultation, this would be positive.

They observed, however, that perhaps nothing would be solved in this stricken country of Colombia until it could deal with the internal strife and violence. Those problems, of course, were not going to be solved under Convention No. 87, but unless those problems were solved then Colombia would not have free trade unions or free employers' organizations.

The Employers' members emphasized that the Commission was already quite familiar with the details of the case since it had been examined on several occasions. They felt that finally the situation was no longer static and were pleased that a permanent tripartite committee had been set up which could look after problems raised by the Experts and recommend solutions.

Concerning the requirements that two-thirds of the members hold Colombian nationality in order to form a union and that they must belong to the profession in question or have exercised it for at least six months, they were led to believe that the tripartite committee had considered these requirements and that they would soon be abolished.

As for the presence of representatives of the authorities in general assemblies held to vote on arbitration or strike declarations, governed by Decree No. 2519 of 14 December 1994, they insisted that this constituted an excessive and flagrant intrusion in the internal affairs of a union, thus undermining its independence.

Concerning the ban on more than one union in the same company or establishment, the Employers' members saw no change forthcoming. They considered that for unions, as well, competition had its place. They firmly hoped that the restrictions imposed on the union movement would be withdrawn when the permanent tripartite committee resumed its work.

They recalled their position concerning the right to strike. They believed that detailed rules governing the right to strike were not part of the Convention. Among the many reasons for this, they recalled that no explicit proposal to introduce the right to strike in the Convention had been formulated during its elaboration. This question was to be addressed by another instrument yet to be prepared. Consequently, rules concerning the right to strike remained an internal affair on which the Employers' group could not commit itself, even if from their point of view an unlimited right to strike would be extreme. The permanent tripartite committee was entirely free to draw up strike legislation which corresponds to the wishes of the parties. However, the Government could not be criticized if this right was not recognized in Colombia.

In conclusion, the Employers' members considered that the situation in law and in practice seemed to be moving in the right direction, but the Government's efforts must be encouraged and strengthened so that genuine progress could be recorded in the application of the Convention, particularly due to the work of the tripartite committee.

The Workers' member of Colombia acknowledged that the Government had adopted a different approach to the question of human rights and the rights of workers. However, this attitude was insufficient and on certain occasions state agents carried out contradictory activities. In his country there were de facto and de jure violations of Convention No. 87 making the exercise of the right to organize a highly dangerous activity. Last year, more than 170 workers and union leaders were murdered with total impunity. The life and the physical integrity of trade unionists were threatened by various forces: sometimes by state agents and the paramilitary which, in many regions, acted with the complicity and help of the authorities. Special circumstances prevailed in the banana plantation of Uraba where guerrillas had assassinated, in recent years, more than a hundred workers and trade union leaders. This is not a situation unknown to the ILO. During the last ten years, the Committee on Freedom of Association has noted the numerous cases of trade unionists who have been murdered, who have disappeared and been tortured, and has requested the Colombian Government to take action to punish those who have perpetrated these crimes. The Committee on Freedom of Association, in its 265th Report expressed its disappointment on the absence of punishment of these criminals. The speaker noted an official document of the National Department of Planning of Colombia indicating that the possibility for an offence to be punished is 3 per cent, this meant that officially, impunity is 97 per cent. As to crimes against trade unionists, this impunity comes close to 100 per cent.

He also noted that the national legislation does not recognize Convention No. 87, as repeatedly pointed out by the Committee of Experts. In its latest report, the Committee set forth a long list of inconsistencies between the Colombian legislation and the Convention. For example, the authorities still have to be present at assemblies convened to vote on a strike; there was the continued prohibition of strikes in all public services, even if they were not essential, and a prohibition on federations and confederations from calling a strike. In its observations, the Committee drew attention to the fact that the national legislation - in contravention of Convention No. 87 - granted the Minister of Labour the power to end a strike when it had continued for 60 or more days. The legislation also empowered the President of the Republic to end a strike when, in his view, and in consultation with the Court of Justice, it affected the economy, also in contravention of Convention No. 87. Furthermore, strikes against the economic and social policy of the Government, as well as solidarity strikes, were forbidden.

He noted that, as in previous years, workers have complained that the Government systematically denied consultations. But today, he welcomed the measures taken pursuant to the Social Pact signed by the Government, employers and workers. In this framework, these parties worked on draft legislation, in line with the provisions of the Political Constitution which addressed the provisions of the Convention guaranteeing freedom of association and the right to strike.

The speaker then referred to the Tripartite Committee for Trade Union Development which met recently as an extension of the agreements reached in the Social Pact. There were agreements on several points relating to the Convention, such as: the Government agreed to submit a draft Law to Congress to recognize the so-called minority trade unionists and their right to strike and effectively to guarantee trade union rights to public employees. There was also an agreement to create committees to study the trade union rights of public employees, such as the right to strike, as recognized in Convention No. 87.

Lastly, he expressed the trust that progress would continue in his country to avoid situations such as the one in which a teachers' strike was declared illegal or when workers were denied social security benefits and the authorization to form assemblies. He also hoped that the policy of consensus would continue in order to encourage a true culture of tolerance, of respect for the opinion of others, for tripartism and to overcome the anti-union culture and violence so as to bring about internal peace.

Another Workers' member from Colombia was satisfied with the changes that had occurred in his country with regard to human rights and reaching agreement with the social partners. Nevertheless, it was necessary to note specific events which had taken place in the course of the last year which had not been brought to the knowledge of the supervisory bodies of the ILO, and which to some extent violated Convention No. 87. These events concerned the dismissals of workers who formed trade unions. In three important cases - in the undertakings "Tejidos El Cóndor" in Medellín, and "Alfa" and "Protelas" in Bogotá - workers who formed trade unions were dismissed from their jobs. This conduct was a violation of the Convention. In addition, strikes in the banking sector, such as in the case of the Bank of Bogotá, were declared illegal on the grounds that the strike involved workers in the public sector who were denied the right to strike. Furthermore, in the last month state university professors had been victims of police repression for staging a protest against the wage policy of the Government.

In addition, there was a concern over judgements from certain tribunals which legitimized certain violations of the Convention within the constitutional framework. He referred specifically to the judgement of the Constitutional Court which held that the authority to end a strike when it affected the economy, was constitutional. Another judgement from the Supreme Court which held that the decision concerning the right to strike which was questioned by the Committee of Experts, was justified. The speaker also was concerned that the Supreme Court of Justice had found that despite the mandate to incorporate the provisions of the Convention into the Colombian legislation, various provisions of the Labour Code which should have been repealed were still in force.

Lastly, he noted that the tripartite committee had still not been established and that the draft legislation which had been submitted to Congress contained many difficulties preventing its adoption. A transitional committee existed which had taken positive action and which functioned outside the scheme of the future committee. The transitional committee would attempt to overcome the deficiencies resulting from the Congress's failure to adopt the standard that would create the standing tripartite committee.

The Government representative from Colombia again referred to the system of reaching agreement, particularly the Tripartite Committee. In this regard, she added that the draft legislation, establishing the Standing Committee, had been submitted to Congress and had been already approved by one of the Chambers and was awaiting approval by the other Chamber.

She also reiterated that the Tripartite Committee for Trade Union Development had been created on a temporary basis and progress had been achieved on the legislation concerning the dissemination of information, the training and development of the trade union movement. Within that same Committee, subcommittees had been established to deal with, among other things, a study on the problems concerning the right to strike, and in particular, collective bargaining in the public sector. The Tripartite Committee for Trade Union Development has been operational for four months and has given rise to these previously mentioned subcommittees. She hoped that the Tripartite Standing Committee would shortly be created to reach agreements which would take into account the interests of the different parties involved in the production process and the general interest of the country. With respect to the Bank of Bogota, she stressed that no strike had been declared illegal. There also was no prohibition on declaring strikes in certain regions in the country.

She then referred to the topic of human rights violations, which had to be analysed in the context of widespread violence prevailing in her country for many years. There were many causes of that violence with victims from all sectors, among those, the trade union movement, whose members had often been a target for this violence.

She noted that the Government had achieved progress in upholding human rights and in implementing a practical policy on humanitarian law. The Government has given priority to this policy, as recognized by the Human Rights Commission. She also indicated that Protocol No. 2 was adopted by Congress and legally reviewed by the Constitutional Court. In this regard, it was important to also note that United Nations Rapporteurs and the United Nations High Commissioner for Human Rights had visited Colombia at the invitation of the Government. One of the Commissioner's representatives, in collaboration with the interested sectors, proposed measures to protect human rights. In addition, the Constitution of 1991 included the right to legal recourse on an expedited basis to redress human rights violations, which has been used by thousands of citizens including trade unionists and educators.

The speaker further highlighted the official acknowledgement of the responsibility of state agents in massacres such as the Trujillo massacre, adopting measures to compensate victims. The Human Rights Section of the Attorney General's office has been strengthened and measures have been implemented to continue the struggle against the problem of impunity.

She gave assurance that the Government was not complacent to nor an accomplice with paramilitary activity. A Committee was already working on draft proposals to reform the military penal system, and strict and far-reaching measures have been adopted to purge the national police and to improve internal control of excesses carried out in that institution.

Lastly, she stated that if the previously mentioned measures were successful, general violence would be reduced for everyone's benefit including trade unionists. The Government was working continuously to achieve peace which had been eroded by guerrillas, drug trafficking, paramilitary activities and some state agents. To achieve this, the Government counted upon the cooperation of workers and employers.

The Workers' members were pleased with the confirmation from the Colombian workers indicating that the new Government was trying to bring about change, although there was still a long way to go. They noted that the President had acknowledged that there was a very serious problem, that things have been very bad in the past, and that government elements, including the police, were responsible for this situation. The Workers' members considered this a very important first step in dealing with the difficulties of the past. They looked forward to the prospect of tripartite discussions, resulting in changes in the legislation where it was not in conformity with Convention No. 87, and noted that they would return to this case in the future, but with the belief that the number of issues involved might be far less than at present.

The Employers' members stated that they shared in condemning the generalized state of violence in Colombia which concerned those involved in union activities. They had no advice or recommendations to give to the Government, but they launched an appeal that it do everything possible and take all necessary measures in its power to combat this violence, particularly in terms of affording legal recourse. In this respect, in cases of unfair dismissal, the injured party must have recourse to the courts and be able to receive compensation. Likewise, misdemeanours must be punished and eliminating violence must figure among the main concerns of the Government.

The Committee noted with interest the presentation made by the Government representative in regard to the new cultural dialogue introduced in terms of a social pact and a series of national tripartite committees on productivity, trade union development, the enterprise labour relations, etc., and felt it to be a hopefully good sign.

It hoped that these tripartite bodies would go into the various issues mentioned by the Committee of Experts. The Committee, however, felt that the various factors mentioned by the Committee of Experts, including legislative stipulation of a single union, supervision of trade unions by public authorities and practices pre-empting free election to trade union offices, constituted a plain contravention of freedom of association and they should be removed from statutes and discontinued in practice.

In these circumstances, and in the light of the detailed discussions, the Committee urged the Government to furnish a detailed report on further measures taken to address all the issues raised by the Committee of Experts and to bring the national law and practice in line with Convention No. 87.