Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

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

A Government representative (Vice-Minister of Labour Relations) stated that year after year Colombia had been before this Committee providing information and explanations necessary so that each time a more objective picture of the situation in the country became apparent. She reiterated the permanent willingness for dialogue with the aim of a constructive debate from which conclusions could be derived to strengthen freedom of association. She noted that Convention No. 87 generated the most observations in the Committee, which reflected the complexities of the process of adjusting national legislation to the provisions of the Convention. In the case of Colombia the process of adjustment had continued throughout the years. The Committee of Experts had listed her country as a case of progress in its General Survey on freedom of association of 1994, in relation to law No. 50 of 1990, one of the laws most attacked by Colombian workers as a violation of freedom of association.

She recalled that in 2000 the Committee of Experts still pointed to 13 discrepancies between national legislation and Convention No. 87 and its principles. In its report of 2001, the Committee noted with satisfaction the adoption of law No. 584 of 13 June 2000 which derogated or modified 10 of the discrepancies, leaving only the three discrepancies the Committee currently noted. Despite the changes which had been incorporated in the legislation over time, a clear indication of a sustained state policy respecting the trade union movement and freedom of association, Colombia had been called year after year before this Committee. The first discrepancy which still existed was the prohibition for federations and confederations to declare a strike. The Government considered that negotiation should take place between the employer and the trade union and not people outside of the enterprise, which only complicated the negotiations. These reasons of convenience which aimed at strengthening dialogue between employers and workers explained this discrepancy in respect to which the Government continued to have an open dialogue with the ILO.

The second discrepancy referred to the prohibition to strike in a range of services, which for the Committee were too wide, in relation to the concept of essential services which had been accepted, as well as the possibility to dismiss trade union leaders who had participated in an "illegal strike". This observation touched on two aspects: the concept of essential services and the power to dismiss workers who participated in an illegal cessation of work. In Colombia the notion of public service came from a long tradition of French law which gave great importance to this concept in regard to the functions of the State. Over time Colombian legislation had come to refer to public services as "all organized activity which satisfied needs of a general interest in a regular and continuous manner in accordance with a special legal framework, provided by the State, directly or indirectly, or by private persons". For this school of thought public service was in its very nature essential and this quality was due to the fact that the State directly or through decentralized functions was in charge of providing such services, given the importance they represented for the development of society. The concept of "essential services" developed by the ILO was not the product of the same legal tradition which animated the Colombian system, which was the result of the need to balance the particular interests of workers and their right to strike - which the ILO had derived from Conventions Nos. 87 and 98 - and the general interests of society which was affected by the strike.

Each one of these concepts came from different legal conceptions which explained the discrepancies. These were not due to a Government policy of non-respect of international labour conventions, as affirmed by the workers. The Government was open to dialogue with the ILO to identify alternatives to meet or surpass obligations. With respect to the second aspect regarding "the possibility of dismissing trade union officers who had intervened or participated in an unlawful strike (section 450(2) of the Labour Code)", she underlined that there were no "unlawful strikes" in Colombia. Strikes were consecrated and guaranteed in legislation in both their substantive and procedural aspects, and none of the laws relating to the same had figured in the observation of the Committee of Experts, leading to the conclusion that the law was in conformity with the provisions of Convention No. 87. From this perspective there was not even the possibility to fire workers for having participated in a strike.

Another matter was the collective cessation of activities which was illegal when occurring in cases foreseen in article 450 of the substantive Labour Code, supplemented by article 56 of the Political Constitution and the decisions of the Supreme Court, both in the Labour Cassation and Constitutional chambers, in relation to essential public services. Such was the case of decision C-450 of October 1995 of the Supreme Court according to which essential public services were the exploitation, refining and transport of petroleum and its derivatives. This pronouncement was in conformity with the provisions of article 56 of the Political Constitution which guaranteed the right to strike, except in essential public services. Of the seven reasons foreseen in legislation to declare a cessation of activities illegal, only the one relating to stoppage in the public services had been the subject of observations by the Committee of Experts. As a result, elementary logic would lead one to conclude that if the point on the illegal cessation of activities was not questioned by the Committee of Experts as being contrary to Convention No. 87, except in respect to public services, there was no reason to question the legal power which permitted employers to fire those who had participated in one of these illegal cessations of activity. Concerning the third discrepancy regarding "the authority of the Minister of Labour to refer a dispute to arbitration when a strike exceeded a certain period (section 448(4) of the Labour Code)", the attribution foreseen in the aforementioned law was voluntary and not obligatory for the Government. This authority was used on few occasions, and she could affirm that the current Government had never used this possibility. This indicated that the discrepancies in the legislation were due to different interpretations by the Government and the Committee of Experts of the same standards. Therefore, an open dialogue with the Office to allow for an exchange of ideas and arguments with the aim of finding alternatives was needed. In relation to the comment that the Government's report had not contained observations on the comments made by the ICFTU, she noted that these comments had been received by the Government after the meeting of the Committee.

With regard to the decrease in the number of trade unionists and trade union leaders assassinated, the Government was aware that one death was reason enough to reaffirm its support for a policy of democratic security, and even if the decrease in the number was not, and could not be, a motive for satisfaction, it did encourage the Government to move forward after proving that it had produced advances in the right direction and in a sustained manner. With regard to the "grave climate" of persistent violence which the Committee mentioned, there had existed for the past five years the Protection Programme under the Ministry of the Interior and Justice, which was unique in the world and which offered protection to the populations most affected by narco-terrorist violence. Four thousand five hundred and seventy-six trade unionists benefited from approximately 2,218 means of protection. The programme offered escorts, small weapons, cars or armoured cars, protection for headquarters of trade unions, transportation support, communications, temporary relocation and national and international "tickets". To this effect it was necessary to increase the budget of the programme to the point where 70 per cent of resources went to the protection of trade unionists. Thanks to this programme an important decrease in assassinations and acts of violence against trade unionists had been registered, although this was still insufficient. There had been 120 homicides in 2002, committed presumably for the exercise of trade union activities; 54 occurred in 2003; and this year 17 violent deaths had been registered in comparison to 22 registered in the same period last year. Finally, the speaker stated that she had not noticed in the report of the Committee of Experts any encouragement to the Government in its struggle to improve conditions of freedom of association. Nevertheless, her country would redouble efforts in its policy of democratic security and in the fight for bigger and better protection to trade unionists and trade union leaders who were at risk. She reiterated the willingness of her Government to continue the fight for freedom of association and fundamental rights of workers.

The Worker members stressed that, over the past number of years, the extremely serious violations of the freedom of association in Colombia had consistently appeared as an agenda item in the Committee's work. The ILO, as a whole, had been very much concerned with these violations. On several occasions, the Governing Body had considered actions to be undertaken, particularly when the Special Rapporteur of the Director-General presented his reports following a request made by the Worker members to find means of action that would address the situation accordingly. Subsequently, the Worker members requested a Commission of Inquiry to be dispatched to Colombia to break the inertia that prevailed year after year on the issues of concern. This impasse was confirmed by the Committee of Experts' report which stated: "... The Committee nonetheless observes with deep concern the persistent climate of violence in the country and the conclusions of May 2003 of the Committee on Freedom of Association in Case No. 1787 and those of the Conference Committee on the Application of Standards citing new murders and other acts of violence. The Committee echoes the two abovementioned bodies in requesting the Government to strengthen the relevant institutions still further in order to put an end to the intolerable situation of impunity, which constitutes a serious obstacle to the free exercise of the trade union rights protected by the Convention, so as to punish all those responsible effectively." In the past, numerous violations were the subject of discussions, in particular the violence exercised against trade unionists who were killed by the thousands more than a decade ago; the characterization of trade union activities as criminal offences; and the impunity which prevented all types of measures of having any effect whatsoever. The impunity was seen as the heart of the problem. As long as the life of a person had no value and was allowed to be taken with no punishment, the assassins would continue their practice. The Government had reported a lower rate of assassinations. Was that a reason for applauding? Once again, hundreds of people have lost their lives since the last meeting of this Committee. The latter had no information whatsoever concerning any investigations to find the perpetrators of atrocities and to punish them accordingly. A state of law and courage should prevail over a state of cowardice and impunity.

The Experts, once again, had pointed to problems regarding the implementation of Convention No. 87 relating to the right of trade unionists to freely organize their activities. In this regard, the Committee of Experts recalled, the prohibition on the calling of strikes by federations and confederations as provided for in the Labour Code; the prohibition on strikes not only in essential services in the strict sense of the term but also in a wide range of services which are not necessarily essential; and the authority of the Labour Minister to submit disputes to arbitration within a certain timeframe. The response of the Government was difficult to accept since, instead of taking the necessary measures to harmonize national law with the Convention, the Government limited itself to stating that the review of the labour legislative proposal, of which the Consultative Commission on Labour and Social Policies had been seized in 2002, had not yet taken place. The Government should have provided a report on the reform proposals, or more generally, on the observations of the Committee of Experts. Instead, the Colombian Government presented a press communiqué which related to political issues of no concern to the items listed on the agenda of the meeting, namely the impunity issue and the questions on the restrictions of trade union activities. The debate should have been focused on the implementation of standards and not on political questions, nor should it have been addressed through the press.

The Colombian situation required a common political will to resolve the serious problems facing male and female Colombian workers and the public at large. This political will was to target accurately the responsibilities concerned. In the press communiqué, the Minister of Labour presented a difficult reading of his report which reflected his perception of the situation. According to the press release, the true problem was the trade unions themselves: "union movements must help us resolve several problems which the country is facing instead of being part of the problem itself". Hence, the fault laid upon those who refused to submit passively to the Government's demands. On several occasions, the ILO's inability to act in an independent manner and with the necessary courage was observed. Last year the Committee was not able to arrive at a decision with regard to placing its conclusions in a special paragraph, even in the face of a situation where dozens of trade unionists had lost their lives due to the Government's inaction in taking adequate measures to halt the carnage which had persisted for several decades. Moreover, the Governing Body did not reach a decision to dispatch a Commission of Inquiry to Colombia. The ILO had adopted several Conventions on freedom of association and free collective bargaining and considered them as fundamental standards for the very reason of preventing any avoidance of responsibilities, and to enable workers, on their own account and in the interest of their families, to carry out freely their activities and express their grievances. The Worker members would have liked to have seen progress made on the punishment of assassins as well as on the issue of freedom of association in law and in practice. They expressed the hope that the Government would change the laws and the practice vis-à-vis the observations that had previously been made and that a true spirit of dialogue and openness would lead to the review by the Colombian Government, together with trade unions, of the problems faced, instead of creating more in their place.

The Employer members stated that this case took place within the context of conditions similar to a civil war. Violence touched on politicians, economic leaders, lawyers as well as union leaders, and was perpetrated by groups such as the FARC and other paramilitary groups who often committed crimes in the name of different ideologies. There was no unique recipe for establishing peace in Colombia and they noted that it was not the mandate of this Committee to evaluate different measures to this effect. Freedom of association was not possible in a climate of violence, yet the full guarantee of freedom of association would not end violence either. They recalled that in 2001 the Committee of Experts had noted a number of changes in legislation in relation to the application of Conventions Nos. 87 and 98 and had classified this case as a case of progress. For the Committee of Experts there remained three legal obstacles to the exercise of freedom of association. The Employer members stressed that they disagreed with the views of the Committee of Experts with regard to the right to strike, recalling that the preparatory works to Convention No. 87 and the decision taken by the Conference in 1948 in relation to the right to strike pointed out that the right to strike was not covered by the Convention. Therefore, the Employer members did not call upon the Government to undertake changes in existing legislation in this regard.

They stressed that in order to achieve the exercise of freedom of association, all measures would have to be taken to end the climate of violence in this country. The current Government appeared to follow a different path in this regard. While violence had not disappeared in Colombia, the statistical data indicated that violence had slightly decreased over the past two years. Nevertheless, the persisting level of violence remained unacceptable, as it endangered not only freedom of association but other rights as well. The Government had to adopt sterner measures with regard to the prosecution of crimes. The Employer members noted programmes for the protection of trade unionists, and the fact that police stations had been established in nearly all villages and that trade union leaders now occupied important public posts. The Government also appeared to be actively fighting right-wing paramilitary groups. The Employer members noted the slight improvement in the Colombian national economy and the agreement between the ILO and Colombia on technical cooperation projects. They also noted the offer made by the Government of Mexico to carry out difficult negotiations to end the violence. In this respect the Employer members concluded that the Government should not be weakened as this might jeopardize such projects and give the criminal groups operating in Colombia an upper hand. They therefore urged the Committee to request the Government to be even more determined in its efforts to put an end to the violence in the country.

The Government member of the United States stated that her Government remained deeply concerned about the environment in Colombia that bred such devastating violence against trade unionists. Her Government continued to support efforts aimed at finding solutions to the core problems that had created this situation, improving the skills and effectiveness of Colombian trade unionists, and protecting the lives of trade unionists at risk. She noted that although the number of murders and other acts of violence had dropped, this number was still appallingly high, and threats of violence continued to occur with distressing frequency. At the same time, the number of convictions against the perpetrators of violence was still unacceptably low.

Freedom of association was critical if Colombia was to move successfully along the path to peace, social justice, reconciliation and democracy. Yet freedom of association could only thrive in conditions where fundamental human rights - in particular those relating to human life and personal safety - were fully respected and guaranteed. Therefore her Government called on the Government of Colombia - in the context of ILO technical cooperation and assistance - to reinforce protection measures and security schemes for Colombian trade unionists, to ensure that all acts of violence were investigated and prosecuted and that those responsible were convicted and punished, and to move forward in the process of labour law reform so that law and practice fully conformed to ratified ILO Conventions on freedom of association.

A Worker member of Colombia stated that unfortunately he had to say in all honesty that the trade unions and workers' organizations of Colombia were deeply disappointed by the results obtained in two areas: the protection of the right to life and the exercise of trade union activities, which was becoming day after day even more difficult in the country. This Committee had been occupied with the topic of Colombia for the last 18 years, especially with respect to violations of Conventions Nos. 87, 98 and 151, which had become a kind of ritual repeated year after year: the workers denounced, the ILO queried the Government, the Government responded, the workers persisted, the ILO requested new information, the Committee of Experts noted its concerns in its reports, this Committee dealt with the case, time passed and the situation, instead of improving, deteriorated. It was necessary to recognize that there was a big difference between 108 trade unionists killed last year and 182 trade unionists killed the year before. Nevertheless, it would be perverse to interpret this number as a case of progress, above all because no-one anywhere should be assassinated for having exercised a trade union activity. It was a deep problem because, when talking about the survival of trade unionism in Colombia, one talked about freedom of association in a country where during the last 14 years anti-union behaviour and a systematic campaign on the part of different governments and certain business sectors intensified, with the goal of exterminating trade unionism.

Last year, while this Committee was debating about freedom of association in Colombia the installations of TELECOM and 14 other telecommunications companies were staffed by public forces since all the workers had been dismissed without legal reason affecting more than 7,000 families. At the same time unacceptable violations were being committed against collective agreements, the Labour Code, the Political Constitution, and ILO Conventions. In the largest beer company in Colombia there existed three years ago a union of 4,000 members. Today, after having deprived these workers of their right to strike, the organization had been dismantled and the collective agreement converted into a pacto colectivo, and so far there had been no sign of any government action to investigate the facts or to apply relevant sanctions.

Concerns regarding freedom of association became clear when the Ministry of Labour and Ministry of Health fused to create the Ministry of Social Protection, with grave consequences for workers with respect to freedom of association, which could be evidenced by the current situations of those affiliated with the social security union, the chaotic situation of workers and their organizations in the health sector, and by the total lack of protection which assured that in the Labour Ministry there would be no attention paid to claims, and the situation in the public sector as well as the private sector. This was happening to the extent that courts had become accustomed to make decisions more in the area of politics than in the domain of law as had occurred with the workers of the Red Cross (Cundinamarca and Bogota sections) on whom an arbitration tribunal was imposed illegally. One of the courts had not only validated the decision in an absolutely unacceptable manner, but had stripped the workers of all their rights.

The speaker said that he did not want to open a political debate, he just wanted the trade union movement to remain alive and that the rights of organizations, of collective bargaining and of strike be maintained. The best example of this was the signing on 17 May of a collective agreement between the Mayor of Bogota and 53,000 public servants. He stressed the importance of the freedom of expression and of the right to strike without fear of losing one's life, which would prevent the re-occurrence of situations such as that of the Ecopetrol Company where 248 workers were dismissed for having exercised this constitutional right. In this sense the speaker trusted that the ILO would conclude - as it had done in the case concerning the petroleum strike in Venezuela - that such actions were lawful since that they did not relate to an essential public service. Finally, he indicated his desire to establish a Fact-Finding and Conciliation Commission in the country, for the purpose of clarifying what had occurred in a search for the truth in a drama that had touched everyone. This was not a sanction but a precautionary measure of general utility. Furthermore, it was necessary to guarantee the continuation of the ILO technical cooperation programme. It was hoped that on this occasion there would be no double standards - as was the case last year - when it was decided not to apply precautionary measures to Colombia but nonetheless to adopt a special paragraph for Venezuela, in an unjust manner and without satisfactory explanation, for a much less serious situation.

Another Worker member of Colombia stated that for many years, the Committee had been discussing practices violating certain Conventions in the field of freedom of association and human rights, like in the case of Convention No. 87, and that the Committee of Experts repeatedly requested the Government of Colombia to ensure compliance with the Conventions. However, nothing had been done, and on the contrary, the violations of labour rights, trade union rights and civil rights became more frequent. The speaker urged that, facing such a situation, the Committee on the Application of Standards should on the basis of ILO principles and the Declaration of Philadelphia examine objectively the evolution of the situation in Colombia and act accordingly beyond political interests.

The speaker pointed out that the human rights situation in Colombia was critical. Violations of the right to life, of personal freedom and integrity was common practice. It was a tragedy which required outstanding commitments on the part of the Government, the judiciary and the public forces, in order to ensure and respect the right to life, in conformity with the Political Constitution. The debate should not concentrate on whether the number of victims had been reduced or not, since a murder was a human tragedy, especially when committed out of intolerance or differences in opinions. There were also other forms of human rights violations in Colombia, like arbitrary detention on a massive scale, threats and harassment. Impunity was the most shocking phenomenon, since it fed the constant threat of crimes against trade union leaders and activists. It was also extremely worrying because of certain doubts raised on several occasions as regards the functioning of the Office of the Attorney-General.

The speaker indicated that, besides the above, the State was pursuing an anti-union policy, in collaboration with employers, aiming at the destruction of trade unions, which was a flagrant violation of Conventions and which involved the suspension of the Ministry of Labour and Social Security, as well as the elimination of individual contracts between workers and employers, thus impeding the exercise of the right to organize. Similarly, the collective bargaining procedures were violated and denied contrary to the provisions of Convention No. 151. According to official statistics, in 2003, out of 4 million workers employed in the formal sector, only 49,200 could benefit from collective bargaining. Restrictions on the right to strike were clearly reflected in the fact that, out of 30 industrial disputes, 26 had been declared unlawful. Under the circumstances, the speaker requested the ILO to reaffirm, in connection with the strike organized by USO at the Ecopetrol Company, the principles referred to in the cases of Costa Rica and Venezuela, and remind the Government of Colombia of the legality of strikes in the oil sector. As regards the technical cooperation programme, the speaker recognized its contribution to the protection of life of threatened trade unionists. He regretted that no social dialogue was developed, which could help the creation of a culture of trade union tolerance among the Government and employers, but also the perception of technical cooperation as a cooperation mechanism, and not as a sanction. For the above reasons, the speaker requested the establishment of a Fact-Finding and Conciliation Commission in Colombia.

Another Worker member of Colombia stated that the Government and the Colombian enterprises had developed an anti-trade union policy, as had been confirmed by the supervisory bodies of the ILO, which had made observations and recommendations with a view to ensuring the realization of freedom of association. The Government had also not pursued a policy of consultation with the trade union movement. To the contrary, it had ignored workers' rights and had imposed economic and social policies against these rights, and it promoted draft legislation without first submitting it to the National Consultation Commission, as required by the Colombian Constitution and the principles of social dialogue.

He stated that the Government had previously announced the adoption of a working plan of the Inter-Institutional Committee for the Promotion and Protection of Human Rights of Workers, which was applied only minimally due to the lack of will and sufficient resources. Even though the ILO had noted acts of violence against Colombian trade unionists since 1987, it was important to point out that, between 1 May 2003 and 30 April 2004, 108 trade unionists had been assassinated, of which 55 were educators. Between January and May 2004, 22 trade unionists had been assassinated. If the impunity which protected the perpetrators and instigators of crimes against trade unionists continued, as the Committee on Freedom of Association and the Committee of Experts recently reiterated, one could not speak of human rights of workers nor of conditions necessary for the exercise of freedom of association. The non-respect for Convention No. 87 was once again shown by declaring unlawful the strike at the Colombian Petroleum Enterprise, the firing of 248 workers, including trade union leaders, and the replacement of striking workers by managerial staff of the enterprise. All this went on in spite of the discrepancies that the ILO had been signalling since 1987 and also contrary to the jurisprudence of the Constitutional Court of Colombia.

The speaker stated that, according to the Court, when the State acted as an employer, it was contrary to the principle of good faith for a government body to declare a strike unlawful, since this decision would be manifestly partial. The other arbitrary decision taken by the Government was to consider oil-related activities an essential public service. The ILO had stated on numerous occasions that the extraction, distribution, production, transport and refining of oil could not be considered, in itself, an essential public service. The report of the Committee of Experts this year recalled in the case of Costa Rica that oil refineries were not essential services in the strict sense of the term and that the exercise of the right to strike should be guaranteed in such services, without it being possible, for example, to replace striking workers by other workers.

He indicated that currently a strike was coming to a head in the banana sector, led by SINTRAINAGRO, which had as its objective to prevent enterprises for eliminating the system of contracting labour and that of social security. In compliance with ILO standards, the exercise of the right to strike and the conclusion of collective agreements should be respected. He called upon the Committee to reiterate its recommendations so that Colombia could bring its legislation into line with the Conventions of the ILO. For this reason, he requested: the abolition of the authority of the Minister of Social Protection to declare strikes unlawful; the determination of essential services in conformity with ILO criteria; the repeal of the authority of the Minister to name arbitrators in the context of obligatory arbitration for labour disputes in state enterprises; the repeal of the authority of the Minister to refer a dispute to arbitration when a strike exceeded a certain period; the removal of the authority to fire workers as a consequence of having declared a strike unlawful; the derogation of the prohibition on the calling of strikes by federations and confederations; and the full application of Convention No. 151, through which state workers could exercise their trade union rights, as noted in this year's report of the Committee of Experts. At the same time, enterprises should not be allowed to conclude or give preference to pactos colectivos with non-unionized workers, a practice which was supported by the judiciary and the Government. Finally, he noted that the satisfaction and the interest which had been expressed by the Committee of Experts as regards the application of Conventions Nos. 29, 111, 129 and 169 left one to wonder, since this clearly did not reflect reality. To the contrary, what was apparent was a plan to eliminate trade unionism. For this reason he requested the setting-up of a Fact-Finding and Conciliation Commission.

The Worker member of the United States recalled that in 1999, the Committee on Freedom of Association, in its conclusion to case No. 1787, had deplored that no significant progress had taken place and that it had trusted the Governing Body to take this into account in its deliberations on the establishment of a Commission of Inquiry on Colombia. Since then this Committee had reviewed the case of Colombia in all of its sessions. A direct contacts mission had been despatched, a technical cooperation programme had been launched, and a Special Representative of the Director-General had been appointed, yet hundreds of Colombian trade unionists had been assassinated, kidnapped, assaulted or threatened with impunity. He noted that the Colombian Government had pointed to the relative decline in the number of assassinations. He wondered whether the 90 trade unionists murdered in 2003 or the 26 murdered already this year were really a reason for congratulations. He also stated that the coverage provided to the 1,424 unionists by the Interior Ministry's trade union protection programme was woefully insufficient given the thousands of unionists at risk. According to the Escuela Nacional Sindical (ENS), this figure was in any case inflated as it covered other sectors than trade unions, and according to the Colombian Commission of Jurists, the protection programme consisted of nothing more than furnishing a mobile phone to a potential victim in some cases. He further noted that the decline in assassinations had more to do with the temporary ceasefire in force between the paramilitaries and the Government than the protection programme. Indeed, the ENS had pointed to an increase in death threats against unionists since 2002.

He stressed that the key element in protecting Colombian trade unionists was the effective prosecution and conviction of those responsible for the violence. Unfortunately, Colombia's National Prosecutorial Unit on Human Rights had admitted that of 3,000 cases of assassinated trade unionists between 30 August 1986 and 30 April 2002, only five had led to a conviction. He noted that the Office of the United Nations High Commissioner for Human Rights had concluded, in 2003, that the Colombian Attorney-General had interfered in the investigations of murders.

He also stated that Colombian law continued to be in violation of Convention No. 87. In addition to the points raised by the Committee of Experts in this regard, he pointed to the continued existence of "pactos colectivos directos" between employers and groups of individual employees. Section 46 of Law No. 50 continued to restrict registration of new trade unions, and the same law continued to hamper the establishment of collective bargaining representatives for the public sector and industry. He concluded that this case was of particular concern to the United States and Colombian trade unions as both these countries were negotiating a free trade agreement in which there would be no requirement to harmonize labour legislation with ILO standards, but merely to enforce existing national law.

The Worker member of Sweden stated that an anti-unions mentality had taken hold in Colombia, both among the State and the employers. As mentioned in the previous reports, high officials of the State had a habit of making declarations in public making the trade union movement and collective bargaining responsible for the recurrent economic crises in the country. As pointed out in the study published in the economics magazine "Portafolio", the employers did not view trade unions favourably. In these circumstances, Colombian workers deserved a maximum support at the moment when the exercise of the freedom of association rights continued to have dramatic consequences. One hundred and eight trade unionists had been assassinated last year and already 22 since the beginning of this year, which showed very explicitly the seriousness of the situation.

Another serious problem was that of the destruction of collective bargaining, which in 2003 covered only 49,000 workers out of 4 million employed in the formal sector. These facts pointed to the need to reinforce the Special Technical Cooperation Programme for Colombia. The ILO Governing Body already had an opportunity to request the Government to urgently put an end to the impunity of persons who committed acts of violence against trade unionists. The cooperation programme should not be looked upon as a sanction, but rather as a valid instrument contributing to facilitating and improving the exercise of the freedom of association rights and also facilitating the promotion and application of the fundamental rights at work.

The speaker requested the ILO to reinforce the technical cooperation programme, which implied the guarantees for the necessary economic resources for reaching objectives identified by the Governing Body. There was great concern among workers all over the world and among the international community at the very serious situation faced by Colombian trade unionism. Everything possible should be done to put an end to assassinations and to promote respect for freedom of association. For all these reasons, the technical cooperation programme was an instrument which the ILO should reinforce.

The Worker member of Chile, upon affirming that for the workers respect for freedom of association was imperative as much in Chile as in Colombia, stated that it was clear that the violations of fundamental human rights of trade unionists were related to their trade union activities. War was an instrument used by different sectors in the country to weaken, neutralize and eliminate workers' organizations. Therefore, it was not surprising that the majority of violations of human rights of Colombian workers gained in intensity when negotiations to resolve labour conflicts were under way or terminated, meaning that these violations took place during the negotiation of documents and collective agreements or during national and local strikes. This situation was not the result of indiscriminate, irrational, uncalculated and casual violence; on the contrary, it was selective, discriminatory and calculated, and was aimed at trade union leaders and leaders of organizations which were involved at high levels of social intervention, and which had an important public presence and great capacity for political mobilization. This was the case, for example, of sectoral federations like Fecode, which played a predominant role in the elaboration of public policy, workers' federations with a great capacity for intervention and mobilization, and national unions such as Sinaltrainal, USO, Sintraelecol, amongst many others, which operated in strategic sectors of the national economy. The kidnappings, threats and assassinations of workers were strategies calculated to put an end to trade union organizations.

To illustrate the fact that the violence against trade unionists intensified in times of labour conflicts, the speaker mentioned the case of the "voluntary renouncement" of acquired rights in the collective agreement of workers in La Ceja Hospital in Eastern Antioquia affiliated with a National Association of Hospital and Clinic Workers (ANTHOC), after pressure had been exerted by paramilitary organizations. Another example was the threats directed at the union leaders of Sinaltrainal, which occurred during negotiations held with the Femsa Coca-Cola Company in May 2003, and the forced withdrawal, as a consequence of threats, of the negotiator chosen to represent this organization in its labour conflict with the transnational enterprise Nestlé-Cicolac in Valledupar in February 2003. He also pointed to the assassination of the president of the sub-directorate of Sintrainagro at the very moment when his organization had finished direct negotiations with the Palmas del Cesar company and was preparing to initiate a strike movement in this enterprise.

The speaker referred to other examples, such as the judgement against the leader of USO based on induced testimony and false evidence, the declaration of a USO strike as unlawful, and the dismissal of 248 workers and the militarization of labour conflicts. He also mentioned threats against trade unions affiliated with the CUT, the Teachers' Union of Risaralda, the Union of Drivers and the Street Vendors' Union. These cases were only a sample of the situation in question, which cast doubt on the position of the Government and employers, according to which the Government bore no direct responsibility for violations of workers' human rights because the armed conflict had stripped it of its capacity to control and regulate social life. These facts demonstrated that the war had been instrumentalized by sectors of the state and business to regulate strictly labour-related conflicts without resolving them. The Government had an obligation to put an end to this unbearable situation of impunity which constituted a major obstacle to the free exercise of trade union rights.

The Government member of Ireland spoke on behalf of the European Union. He indicated that the EFTA countries Iceland, Norway and Switzerland had aligned themselves with his statement. The EU wished to reaffirm its full support to the Colombian people and the Colombian Government in their efforts to bring about justice, social advancement and national reconciliation and tackle impunity and human rights violations. This year they were pleased to note the efforts of the Colombian Government to improve the human rights situation and the position of trade unionists in Colombia. They welcomed recent positive developments, including the adoption of a workplan to promote and encourage workers' rights, and the reported decrease in the number of deaths of trade unionists. While noting these recent positive developments, the EU wished, however, to reiterate its grave concern regarding the general climate of the constant violence that was present at all levels of Colombian society and the threat that such a situation represented for social dialogue and reconciliation. The EU strongly condemned the murders and kidnappings of trade union officials and members of the population. The EU expressed concern that the Colombian Government had not taken the necessary measures to amend legislation inconsistent with Convention No. 87. The EU stressed the importance of social dialogue and called on the Government to redouble its efforts in this area, and indeed its efforts to meet all its commitments under the Convention.

The Government member of Brazil stated that his Government was closely following developments in Colombia regarding freedom of association and, in this context, he welcomed the response made by the Colombian Vice-Minister which summarized the efforts deployed by her Government in order to stop the climate of violence that was prevailing in the country. He called upon the Committee to support the measures already taken by the Colombian Government to reinforce and stimulate social dialogue and, in this regard, account should be taken of the information provided by the Colombian Vice-Minister. It was equally important to consider the good results obtained in the framework of the technical cooperation programme undertaken by the ILO and Colombia which was meant to promote social dialogue and freedom of association and to harmonize the Colombian national legislation with international labour standards. The speaker was convinced that, with the constructive support of the ILO, the Colombian Government would continue to improve labour conditions in its territory in a manner that would enhance democratic institutions.

The Government member of Costa Rica pointed out that the acts of violence performed by the narco-terrorists did not discriminate either between rich landlords and trade unionists or between diplomats and politicians, young and old, children and women. No doubt, Colombia would be able to find a way out with the assistance of friendly States and international organizations, as well as through dialogue and reinforcement of democratic institutions.

The Worker member of the United Kingdom stated that in February he had visited the small town of Saravena which had been under total military control since November 2002. The armoured cars circling the union building where he met with local trade unionists and their families and the armed troops outside were, according to the army, for their own protection. When the army took over the town, half the adult population was rounded up and processed by the army in the football stadium. Families told him how their loved ones had been taken from their beds. At the stadium, circling the pitch, paid informers in cars with dark windows apparently pointed out the so-called dissidents (or those against whom they had a grudge). Of the hundreds arrested, some 40 were eventually sent to prisons far away. Arbitrary arrests in Saravena and throughout Arauca department were a daily occurrence. In the same area, the army and the paramilitaries patrolled together and had committed a further massacre of 13 campesinos just three weeks ago in Flor Amarillo and in Pinalto. All the opposition candidates in Saravena had been arrested before the October elections. A meeting with the local CUT leader was not possible because a warrant was out for his arrest.

He had also visited Bogota's two main prisons, including a closed wing of the women's prison, where 84 women were held in a space designed for 31. The overwhelming majority of the detainees were members of trade unions or community-based organizations. Of the 84 prisoners, more than 50 had either not been tried or in many cases even charged. Among them were women trade unionists arrested in Saravena in November 2002, imprisoned for 15 months without charge. Some arrest warrants had been "mislaid"; the women concerned had become non-persons with no record of their detention. He was pleased to hear that, soon after his visit, 11 members of the health workers' union had been released from the two prisons but only on bail.

Among the many victims of arbitrary detention was Luz Perly Cordoba, General-Secretary of the agricultural workers' union, FENSUAGRO, arrested on 18 February, after his meeting with her in Saravena. There was still no explanation for her detention. These were just some of the 7,000 political prisoner cases in Colombia. It was remarkable that a state apparently incapable of arresting and convicting the murderers of trade unionists over the past decade seemed adept at arresting and imprisoning so many of the potential victims. There was impunity for the murderers, and arbitrary detention for those who dared to oppose the neo-liberal, anti-union crusade of the regime and those wealthy and shadowy forces which supported it. The speaker recalled that at Ecopetrol, 43 workers had been confined to overcrowded, dirty offices, in separate cubicles facing the wall for six months of "behaviour and skills improvement", which was degrading, psychological torture and brainwashing. The programme was used to threaten other trade unionists at Ecopetrol.

Yet too many members of this Committee still insisted that this was a democracy fighting a war against terrorism rather than a government, backed by paramilitary terrorists, which was waging a war on democracy. The Government refused to implement two key UN recommendations on the ending of judicial power for the army and of maintenance of military intelligence files on trade union and NGO activists. Senior public officials continued to vilify trade union leaders, making them targets for the paramilitaries. The Committee could invite the Fiscalia General to explain the remarkable relationship this department, according to Human Rights Watch, now had with the paramilitary right.

He concluded that it was delusional to pretend that freedom of association in Colombia was improving. The opposite was true and this Committee had failed to recommend appropriate measures. All ratifying member States should be subject to impartial judgement regardless of their economic system or attitude to globalization. The fact that Colombia's Government was pursuing a neo-liberal economic model was no excuse to ignore its flagrant and persistent violations of freedom of association.

The Worker member of Swaziland, speaking on behalf of the workers of Africa, expressed his solidarity with Colombian workers and supported the requests made to this Committee, by the Worker members' spokespersons and by the Colombian Worker members.

The Government member of Canada reiterated Canada's support for the ILO special technical cooperation programme for Colombia. Her country believed in the power of social dialogue and supported the full implementation of appropriate legislative measures in line with the ILO recommendations related to the application of Conventions Nos. 87 and 98. She was pleased that some components of this programme were being implemented in Colombia.

She noted the Government's report indicating that the number of violent acts against trade unionists had been somewhat reduced and that additional funds had been earmarked for the protection of trade unionists. She welcomed this indication that some progress was being made, and recognized that some measures had been taken by the Government against impunity. At the same time, the international community was anxious to see concrete results from these measures so that perpetrators of human rights violations were punished according to the seriousness of their crimes.

The situation of violence in Colombia was very complex; however, addressing the problem of impunity was crucial. The human rights situation for trade unionists in Colombia continued to be extremely difficult and called for urgent, transparent and decisive measures to address the problem.

The Worker member of Pakistan expressed the solidarity of workers from his country and called upon the Government of Colombia to improve the protection of rights of all workers, make the improvements in legislation called for by the Committee of Experts, and prosecute those responsible for violence against trade union members. He supported the request for the establishment of a Fact-Finding and Conciliation Commission to deal with this matter.

The Government member of Mexico stated that the information provided by the Government representative of Colombia had not only provided a detailed reply to the comments of the Committee of Experts, but had also revealed a constructive attitude of the Government of Colombia which, every four months and every year, reported on the measures adopted and efforts made to guarantee the exercise of trade union rights provided for in Convention No. 87. Although the reported results might not have been fully satisfactory, the speaker acknowledged positive trends, despite the fact that there were discrepancies between Convention No. 87 and the national legislation. The Committee members were familiar with the difficult situation of violence in the country, which made the application of measures allowing the full exercise of trade union rights more difficult. The speaker pointed out that she shared the Worker members' concern that trade unionists continued to be victims of violence, though the violence did not concern exclusively trade unions, but affected all sectors of Colombian society. This situation required a political solution, which could not be found in this Committee.

The speaker considered, like in all the previous discussions of the case of Colombia, that the Special Technical Cooperation Programme for Colombia represented an ideal instrument for the ILO, within the limits of its mandate, the Government of Colombia, and the employers' and workers' organizations to reach in close collaboration a solution to the problems affecting Colombian workers.

The Government member of China noted the efforts undertaken by the Government of Colombia to improve social and economic policies and promote social dialogue in the country. She hoped the ILO would strengthen its technical cooperation with Colombia, and stressed that her country supported social dialogue as an alternative to violence. She stated that this case should not appear in a special paragraph in the report of this Committee.

The Government member of Denmark spoke on behalf of Denmark, Finland, Iceland, Norway, and Sweden. She expressed her support for the statement made by the Government member of Ireland on behalf of the European Union. The Governments for whom she spoke remain concerned and deeply disappointed that the Colombian Government had still not taken the necessary measures to amend in full the legislation which was inconsistent with Convention No. 87. She urged the Government to address this problem without delay. At the same time she recognized that legal reform was not in itself enough. It was crucial to press ahead with urgently needed socio-economic reforms, including an employment policy aimed at providing jobs in dignified and fair conditions.

She reiterated the request to the Colombian Government to cooperate constructively with the social partners to secure freedom of association. The Government needed to support social dialogue through effective labour market administration. She further noted with concern the persistent climate of violence in the country, and although the number of trade unionists killed had declined, the Colombian Government had to urgently strengthen the relevant institutions further in order to end the intolerable impunity which protected perpetrators. In this context she underlined the importance of the Colombian Government's pledge to protect civil society leaders, including trade unionists, that had been made at the international meeting on Colombia which was held in London last year.

After having taken into account the information given by the representative of the Government of Colombia, she could find no credible evidence that the situation had improved substantially. She underlined the support of the governments she represented for the work of the ILO and Colombia which could be strengthened, especially in regard to the ILO's cooperation with the Office of the United Nations High Commissioner for Human Rights and other institutions of the United Nations system. She urged all parties to enhance dialogue to find the necessary solutions.

The Government representative emphasized the importance for her country of the reinforcement of the technical cooperation programme which should receive adequate financial support and be operational as long as necessary, and of the guarantees of the freedom of association rights and of the tripartism. The Government undertook concrete actions aiming at combating impunity, including the organization of workshops with the participation of the Attorney-General and judges.

The speaker revealed the existing problems as regards the refusal of the victims' relatives to make declarations for fear of becoming victims of reprisals. Thus, a programme of victim protection had been launched, which helped certain people to leave the country. Besides, the regional round tables of social dialogue had been created with a view to reactivating social dialogue in the cities where the problem was particularly serious and where there was the biggest number of murders of trade unionists; agreements were signed for fighting against the evil of violence. Regarding the "behaviour and skills improvement" programme at Ecopetrol, the speaker recognized that certain workers had been mistreated, but due to the Government's intervention, the programme had been discontinued.

The speaker pointed out that, contrary to the views expressed by certain members of the Committee, terrorism was not a selective, but rather a generalized phenomenon. The Government was combating the guerilleros, as well as drug traffickers, and firmly refused any collaboration with the paramilitaries. The Attorney General was conducting all the relevant investigations.

The Worker members regretted that the Officers of the Committee could not agree on giving the floor to the World Organization against Torture (OMCT). It was also regrettable that the information provided by Colombia was not included in the report required under article 22 of the Constitution.

After having listened to all of the interventions, the Worker members wanted to stress certain points by way of conclusion. Firstly, the climate of the systematic anti-union violence and impunity continued to reign, resulting in an unacceptable state of affairs. Secondly, the violations to Convention No. 87 went beyond this violent climate. There was an anti-union climate which was demonstrated by certain practices and measures seriously affecting the exercise of freedom of association and, as the Committee of Experts had noted, the Colombian legislation continued to infringe upon the Convention even if the Government stated that it was a question of simple divergence of interpretation. In practice, the violations revolved around the following: the criminalization of union activities, particularly the right to strike, massive and abusive dismissal of workers who exercised their right to organize, restrictions to the right to strike, ignorance of the conventions on the part of those who were responsible for its implementation and other anti-union behaviour.

Last year, the Worker members had considered the situation to be sufficiently worrying for the conclusions to be taken up in a special paragraph. This year, the number of murders and the anti-union climate did not show the least tangible improvement in the situation as a whole. There was more than adequate reason to reproduce conclusions in a special paragraph and therefore it was regrettable that the Employer members had once again objected to it. Apart from practices and realities brought to the attention of all, it was important to recall that, in legal terms, no effect was given to the Convention. To ignore the illegal violations and to reject the proposal for a special paragraph in such a grave and serious situation as that of Colombia opened the door to the politicization of the Committee. The politicization of the work of this Committee was to be avoided at all costs since it provided a good justification for those who did not believe in the objectivity of the Commission's conclusions or considered that the Commission was only critical of those countries hostile to the established world neo-liberal order.

The Worker members stressed the need for reflecting on the aforementioned situation which risked to undermine the mission of the Committee which is to establish a dialogue with governments on violations observed. Having been confronted with the existing deadlock, it was indispensable to find other means and ways that would put an end to the confrontation and aggression towards the union movement so that the ILO could retrieve its credibility as an interlocutor in such serious situations as that of Colombia. The Office and the Governing Body had to pay particular attention to the situation in Colombia and the repeated failure to find a consensus to resolve outstanding issues. Consequently, the Worker members requested the Governing Body to send a Fact-Finding and Conciliation Commission to Colombia.

The Employer members said that the Government had shown its readiness to collaborate closely with the ILO. It was essential for the Government to determine what measures were needed. For the Employer members the institutional framework for the persecution of crimes under the Penal Code had to be improved. While the Penal Code covered the crimes in question, the Government representative had indicated that problems in the investigation of crimes persisted. This was not surprising given the climate of violence which made it difficult for persons to testify in a credible manner. In its conclusions, the Committee should ask the Government to report in detail on matters raised during the discussion. They did not believe that placing this case in a special paragraph would be productive. They reiterated their objection to matters raised by the Worker members with regard to the right to strike.

The Worker members noted with regret that the idea of a Fact-Finding and Conciliation Commission was not retained.

The Committee took note of the oral information provided by the Government representative, Vice-Minister of Labour Relations, and of the discussion which ensued. The Committee noted with great concern that the problems pending were extremely serious and related, in particular, to murders of trade union leaders and members, other acts of violence against trade unionists and the situation of impunity from which benefited the perpetrators. The Committee noted that the Committee on Freedom of Association had examined serious complaints concerning assassinations and acts of violence against trade unionists. The Committee observed that acts of violence also touched other sectors including employers, in particular through kidnapping. The Committee condemned once again all these acts of violence in the context of the dramatic situation of violence which was experienced by the country.

The Committee took note of the Government's declarations according to which the number of murders of trade unionists and other acts of violence had dropped and the authorities had adopted measures to protect trade unionists. The Committee also took note of the Work Plan of the Inter-Institutional Committee for the Prevention and Protection of the Human Rights of Workers and the functioning of the Special Committee to Promote Investigation into human rights violations. Nonetheless, the Committee expressed its deep concern with the still high number of victims.

The Committee recalled that workers' and employers' organizations could only exercise their activities freely and effectively in a climate devoid of violence and again requested the Government to guarantee the right to life and security and to reinforce urgently the necessary institutions in order to put an end to the situation of impunity, which was a serious obstacle to the exercise of the trade union rights protected by the Convention. The Committee pointed out, more generally, that the climate prevailing in the country was not favourable to the development of trade union activities.

As regards legal amendments requested by the Committee of Experts, the Committee noted that the Government was open for the dialogue with the ILO on the legal issues pending and was convinced that the exchange of points of view on the comments made by the Committee of Experts would allow to find alternatives and to overcome discrepancies mentioned by the said Committee. The Committee once again urged the Government to immediately take the necessary measures in order to guarantee the full implementation of the Convention. The Committee requested the Government to send a detailed report for the examination by the Committee of Experts at its next session, so as to enable it to assess the development of the situation, including a reply to comments submitted by the trade union organizations. The Committee expressed the firm hope that, in the nearest future, a tangible progress could be noted, with the help of the Technical Cooperation Programme whose financial resources should be reinforced, particularly in overcoming all the obstacles to the full exercise of the freedom of association, so that the trade union organizations could exercise the rights guaranteed by the Convention in the climate of full security free from threats and fear. The Committee emphasized the importance of reaching these objectives through social dialogue and cooperation.

The Worker members noted with regret that the idea of a Fact-Finding and Conciliation Commission was not retained.