Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 30 August 2016, the observations of Public Services International (PSI), received on 1 September 2016, the joint observations of the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers of Colombia (CUT), received on 5 September 2016, and the joint observations of the CTC, the General Confederation of Labour (CGT) and the CUT, received on 7 September 2016. The Committee notes that these observations, which include denunciations of acts of violence against trade union leaders and members, refer to matters examined by the Committee in the present observation and the corresponding direct request.

The Committee notes the Government’s replies to the observations of the ITUC of 2014, of the Union of Cali Municipal Enterprises Workers (SINTRAEMCALI) of 2014 and of the Union of Workers of the Electricity Company of Colombia (SINTRAELECOL), of the same year.

The Committee notes the joint observations of the National Employers Association of Colombia (ANDI) and the International Organisation of Employers (IOE), received on 23 August 2016, which refer to matters examined in the present observation and, particularly, the rules applicable to the exercise of the right to strike.

The Committee also notes the observations of a general nature of the International Organisation of Employers (IOE), received on 1 September 2016.

Trade union rights and civil liberties. The Committee recalls that for several years it has been examining, in the same way as the Committee on Freedom of Association, allegations of violence against trade unionists and the situation of impunity. The Committee notes with concern that the ITUC, CGT, CUT and CTC allege that, although the number of murders of trade unionists has fallen, according to the figures provided by the trade unions, there were 130 murders of trade unionists in the five-year period 2011–15 (in comparison with 275 murders during the five-year period 2006–10), while over the same period the number of attacks (77) and cases of harassment (269) increased against members of the trade union movement. The Committee also notes the indication by the trade unions that: (i) despite the significant reinforcement of the capacity of the Office of the Prosecutor-General to investigate crimes against trade unionists, there has been no significant progress in combating impunity, and that there have been no convictions in 87 per cent of the murders of members of the trade union movement; (ii) according to the information provided by the Office of the Prosecutor-General, in comparison with the five-year period 2006–10, the annual number of convictions for acts of violence against members of the trade union movement fell between 2011 and 2015; (iii) in 2016, the Higher Council of the Judiciary reduced from three to one the number of magistrates assigned exclusively to cases of murders of members of the trade union movement; and (iv) the protection measures for members of the trade union movement continue to be inadequate, are tending to deteriorate and do not take sufficiently into account the risks affecting women trade unionists. Finally, the trade union confederations add that the State of Colombia has begun to recognize the extent and nature of anti-union violence with the adoption and implementation of the Act on Victims, and that the establishment of the high-level dialogue forum is awaited to push forward the process of collective compensation to the trade union movement and the conclusion of agreements on this subject.

The Committee also notes that the IOE and the ANDI emphasize the efforts made by public institutions for the protection of members of the trade union movement and to combat impunity.

The Committee further notes the Government’s indication that: (i) since 20 July 2015, the date of the unilateral ceasefire by the Revolutionary Armed Forces of Colombia (FARC) within the framework of the peace process, there has been a substantial reduction in acts of violence which has had an impact on the population as a whole and has also benefited members of the trade union movement; (ii) the current peace process includes various initiatives, such as the establishment of a special investigation unit for the dismantling of criminal organizations engaged in action against human rights defenders, social movements and political movements; (iii) the State of Colombia is continuing its significant effort to provide protection to members of the trade union movement who are under threat; (iv) the budget of the National Protection Unit (UNP) allocated for the protection of trade union leaders was US$18.5 million in 2015; (v) around 600 trade unionists are currently benefiting from protection measures; (vi) there have been no cases of murders of trade unionists covered by the programme, nor of those whose protection was removed following the updating of the risk assessment; (vii) the Office of the Prosecutor-General and the courts of Colombia are maintaining their efforts to combat impunity in relation to anti-trade union violence; and (viii) the 2,411 investigations into crimes against trade unionists have resulted in 700 rulings and the conviction of 574 persons. The Committee further notes the Government’s indication that it trusts that the completion of the peace process and the implementation of the envisaged measures will contribute to overcoming impunity through the confession of crimes and that Decree No. 624 of 18 April 2016 establishes and regulates the Standing Dialogue Forum with the Trade Union Confederations CUT, CGT, CTC and the Colombian Federation of Teachers (FECODE) with a view to the collective compensation of the trade union movement.

While noting with concern the allegations of persistent acts of violence against members of the trade union movement, the Committee takes due note of the efforts made by the Government and the other authorities in relation to protection and combating impunity. The Committee refers in this regard to the recent recommendations of the Committee on Freedom of Association (CFA) in the context of Case No. 2761 (380th Report, November 2016, paragraph 274), in which the CFA: (i) urges the Government to continue taking all the measures necessary to ensure that all of the acts of anti-union violence reported are resolved and that the perpetrators and instigators are brought to justice; and (ii) requests the Government to facilitate an inter-institutional evaluation of the investigation strategies used by the public authorities in cases of violence against trade union leaders and members. The Committee also requests the Government to continue providing information on the measures adopted in consultation with trade unions for the establishment of collective compensation for the trade union movement for the violence committed against it.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee notes that, in their joint observations, the CUT, CTC and CGT allege that, as a result of the joint reading of sections 5 and 353 of the Substantive Labour Code (CST), the right to organize is only recognized for persons who have an employment contract, as a result of which judicial rulings and decisions by the Ministry are denying this right to: (i) the 300,000 apprentices, as section 30 of Act No. 789 of 2002, provides that apprentices are not parties to an employment relationship; (ii) over 800,000 workers who are engaged under service provision contracts, governed by civil law; (iii) the unemployed; and (iv) retired workers. In addition, the Committee notes that these observations allege that the legislation applicable to associated work cooperatives continues not to provide for the trade union rights of their members, although the incidence of such cooperatives has fallen.

The trade unions add that these legal obstacles, compounded by the practical difficulties encountered by other categories of workers, such as informal workers and workers under contract with temporary work enterprises, has the effect of maintaining the unionization rate of the national labour force at a very low level. In this regard, the Committee recalls that, under the terms of Article 2 of the Convention, all workers, irrespective of the legal status under which they work, shall enjoy freedom of association, and that the legislation should not prevent trade unions from including the retired and the unemployed among their members, if they so wish, especially when they have participated in the sector represented by the union. In light of the above, the Committee requests the Government to provide its comments on the observations of the trade union confederations and to provide data on the unionization rate in the country for the next reporting year and the prior two years.

Articles 2 and 10 of the Convention. Trade union contracts. The Committee notes that the CUT and CTC continue to denounce the practice of trade union contracts, as envisaged in the Colombian legislation, under the terms of which an enterprise may conclude a contract with a workers’ organization providing that this organization, through its affiliates or members, performs the work of the enterprise, an arrangement which thoroughly undermines the application of the Convention as a whole. The CUT and CTC allege more specifically that: (i) by converting trade unions into employers of their members and into employment intermediaries, trade union contracts undermine the role of trade unions, as demonstrated by the establishment of thousands of false unions, and endanger the legitimacy of the trade union movement as a whole; (ii) the legislation applicable to trade union contracts does not contain provisions guaranteeing the exercise of freedom of association by their members; and (iii) the adoption of Decree No. 36 of 2016 by the Ministry of Labour does not resolve these problems satisfactorily. In this regard, the Committee notes the Government’s indication, in its report on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that: (i) trade union contracts are a legal concept governed by the Substantive Labour Code (CST); (ii) the Constitutional Court has ruled on the provisions of the CST respecting trade union contracts, finding them constitutional; and (iii) with a view to resolving abuses, Decree No. 036 of January 2016 reinforces the regulations governing trade union contracts and ensures that a trade union which has concluded a contract is liable for the direct obligations arising out of the contract. While taking due note of the adoption of Decree No. 36 of 2016 to prevent trade union contracts being used to undermine the application of the labour legislation, the Committee requests the Government to provide its comments concerning the allegations made by the CUT and CTC respecting the impact of trade union contracts on the application of the Convention.

Article 3. Right of trade unions to organize their activities. In their joint observations, the CGT, CUT and CTC denounce the absence of legal regulations respecting the trade union guarantees and facilities that should be enjoyed by trade unions in the enterprise (free time, trade union leave, right of access to workplaces, the right to communicate with the workers and to disseminate information). The trade union confederations indicate that, in the absence of legislative provisions, trade union organizations have to engage in arduous action to obtain recognition of these facilities in collective agreements. They add that the difficulties relating to the exercise of the right of collective bargaining result in many trade unions not being able to establish these facilities, which is accelerating their disappearance. The Committee invites the Government to provide its comments on the observations of the trade union confederations and to provide information on the number of collective agreements by sector which provide for facilities for the exercise of freedom of association, the nature of the facilities provided and the number of workers covered by these agreements.

Right of organizations to determine their structure. The Committee notes the allegation by the CUT, CGT and CTC that section 391(1) of the CST only allows the establishment of chapters of trade unions at the municipal level, thereby denying the possibility of establishing chapters in regions or departments where they have members. The trade union confederations indicate that, on the basis of this provision: (i) certain courts have ordered the dissolution of chapters at the regional or departmental levels; and (ii) national trade unions could not establish a section or chapter in the locality where they have their national headquarters. The Committee requests the Government to provide its comments on this subject.

Articles 3 and 6. Right of workers’ organizations to organize their activities and to formulate their programmes. Legislative issues. The Committee recalls that for many years it has been referring to the need to adopt measures to amend the legislation in relation to: (i) the prohibition of strikes by federations and confederations (section 417(i) of the Labour Code) and within a very wide range of services that are not necessarily essential in the strike sense of the term (section 430(b), (d), (f) and (h); section 450(1)(a) of the Labour Code; Taxation Act No. 633/00; and Decrees Nos 414 and 437 of 1952, 1543 of 1955, 1593 of 1959, 1167 of 1963, and 57 and 534 of 1967); and (ii) the possibility to dismiss workers who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), even in cases in which the unlawful nature of the strike is a result of requirements that are contrary to the provisions of the Convention.

In this regard, the Committee notes the Government’s indication that: (i) with reference to section 417 of the CST, which prohibits federations and confederations from calling strikes, it is necessary to take into account ruling C-018 of 2015 of the Constitutional Court, in which the court recalls that “the principal objective of trade unions is to represent the common interests of workers in relation to the employer, which fundamentally takes the form of participating in commissions of various types, the designation of delegates or members of commissions, the submission of claims, collective bargaining and the conclusion of collective agreements and collective contracts, the calling of strikes and the designation of arbitrators”, while “federations and confederations are trade union organizations of the second and third level, which discharge functions of providing advisory services to their member organizations in relation to their respective employers to deal with their disputes and in relation to the authorities or third parties with reference to any claims”; (ii) in ruling C-796 of 2014, the Constitutional Court ruled on the prohibition of strikes in the oil sector set out in section 430 of the CST; and (iii) the Ministry is currently engaged in a legal analysis with a view to submitting to the Standing National Committee for Dialogue on Wage and Labour Policies a compendium of proposed amendments to the CST, taking into account the ILO’s recommendations.

The Committee notes the observations of the ANDI and the IOE concerning the regulation of strikes in essential services, in which it was emphasized that rulings Nos C 691-08 (finding the prohibition of strikes in the extraction of salt unconstitutional) and C-796 of 2014 (allowing the possibility of strikes in the oil sector, on condition that the normal supply of fuel in the country is not compromised) of the Constitutional Court are in perfect harmony with the Constitution and positions of the ILO.

With regard to the prohibition on federations and confederations from calling a strike, the Committee recalls that, under the terms of Article 6 of the Convention, the guarantees of Articles 2, 3 and 4 apply fully to federations and confederations, which should therefore be able to determine their programmes in full freedom. In addition, the Committee emphasizes that, in accordance with the principle of trade union independence, set out in Article 3 of the Convention, it is not for the State to determine the respective roles of first-level unions and of the federations and confederations to which they are affiliated. In light of the above, and on the basis of Articles 3 and 6 of the Convention, the Committee requests the Government to take the necessary measures to eliminate the prohibition on the right to strike of federations and confederations as set out in section 417 of the CST.

With regard to the exercise of the right to strike in the oil sector, the Committee notes that, in the context of Case No. 2946, the Committee on Freedom of Association (375th Report, March 2015, paragraphs 254–257) noted with interest ruling no. C-796/2014 of the Constitutional Court. The Committee notes with satisfaction that in this ruling the Constitutional Court considers that: (i) the right to strike is a guarantee associated with freedom of association and the right to collective bargaining, which are also protected by the Political Constitution in Article 55 and in ILO Conventions Nos 87, 98 and 154; (ii) the concept of essential public service set out in article 56 of the Constitution of Colombia must be interpreted on the basis of ILO Conventions, in so far as the suspension of the normal supply of the fuels derived from oil could endanger fundamental rights such as life and health. The Committee notes with interest the Constitutional Court’s further conclusions: (i) that an analysis is needed on the context in which the interruption of the operations of “the exploitation, refining, transport and distribution of oil and its derived products, where they are intended for the normal supply of fuel for the country, in the view of the Government” results in danger to the life, personal safety or health of the whole or part of the population, and circumstances in which this is not the case, with a view to determining the minimum conditions under which it would be possible to exercise the right to strike in the specific oil sector; and (ii) urging the legislative authorities of Colombia, within a period of two years, to address the issue of the right to strike in the specific oil sector. While welcoming the orientations of ruling No. C-796/2014, the Committee requests the Government to provide information on the measures taken for the adoption of the legislative changes requested by the Constitutional Court in relation to the exercise of the right to strike in the oil sector. The Committee also requests the Government to provide information on progress in the discussion by the Standing National Committee for Dialogue on Wage and Labour Policies concerning the compendium of amendments to the Substantive Labour Code prepared in light of the ILO’s recommendations.