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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Colombia (Ratification: 1976)

The Committee notes the observations of the International Organisation of Employers (IOE) and the National Employers Association of Colombia (ANDI), received on 23 August 2016, which refer in particular to the reinforcement of the activities of the Special Committee for the Handling of Conflicts referred to the ILO (CETCOIT) and the legislation penalizing the conclusion of collective accords with benefits greater than those of existing collective agreements.

The Committee notes the observations or 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 CUT and the General Confederation of Labour (CGT), received on 7 September 2016. The Committee notes that these observations refer to matters examined by the Committee in the present observation and the corresponding direct request, and to denunciations of violations of the Convention in practice, in respect of which the Committee requests the Government to provide its comments.

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

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee notes that, in their joint observations, the CTC, CUT and CGT indicate that there are no effective mechanisms in the country to provide effective protection against acts of anti-union discrimination. In this regard, the trade union confederations indicate that, firstly, although the Substantive Labour Code (sections 354 and 486) provides that the Ministry of Labour may investigate and penalize with fines anti-trade union acts, this does not afford effective protection as: (i) the action taken by the Ministry of Labour in relation to complaints of acts of anti-union discrimination is extremely slow and in very few cases results in a penalty being issued (of the 150 complaints submitted, only five penalties have been imposed, while 130 files are still being processed); and (ii) the fines imposed neither eliminate the situations of anti-union discrimination, nor constitute dissuasive measures against future violations. The trade union confederations indicate that, secondly, with the exception of the procedure for the lifting of trade union protection, applicable solely to trade union leaders, there is no expeditious judicial means of protection against acts of anti-union discrimination and interference. In this regard, the trade union confederations indicate that: (i) ordinary judicial proceedings may take several years; and (ii) action to protect fundamental rights is very uncertain in terms of its outcome as the majority of magistrates are not aware of the case law of the Constitutional Court or of the guarantees afforded by ILO Conventions. The trade union confederations observe, thirdly, that the Office of the Public Prosecutor does not provide any protection against acts of anti-union discrimination or interference which amount to penal offences. In this regard, they refer to the application of section 200 of the Penal Code, which establishes penalties for a series of anti-union acts, with the indication that only one of the 354 investigations initiated by the Office of the Public Prosecutor has gone forward to the criminal prosecution stage.

With regard to the application of Article 1 of the Convention, the Committee notes the Government’s indication that: (i) the labour inspection services have the legal power to issue penalties and prevent conduct which amounts to anti-union discrimination, such as the unlawful use of collective accords; (ii) with a view to strengthening the application of section 200 of the Penal Code, which establishes penalties for a series of anti-union acts, the Office of the Public Prosecutor has undertaken jointly with the Office a series of training courses on labour legislation; and (iii) up to now, 270 cases of violations of freedom of association have been identified, giving rise to three convictions and two charges. The Committee invites the Government, in consultation with the social partners, to launch a comprehensive examination of the means of protection against anti-union discrimination with a view to taking the necessary measures to ensure adequate protection in this regard.

Articles 2 and 4. Collective accords with non-unionized workers. The Committee recalls that in its previous comments it requested the Government to take the necessary measures to ensure that collective agreements with non-unionized workers (collective accords) can only be concluded in the absence of trade unions. The Committee notes the Government’s indication that: (i) under the terms of the labour and criminal legislation that is in force, 40 investigations are being conducted for the alleged discriminatory use of collective accords; and (ii) between 2011 and 2015, the number of collective agreements concluded (565) increased by 165 per cent, while the number of collective accords registered fell by 14 per cent (220).

In this regard, the Committee notes the joint indication by the CUT, CTC and CGT that: (i) there has been no amendment to section 481 of the Substantive Labour Code, under the terms of which collective accords can be concluded with non-unionized workers in the absence of unions with a membership of at least 30 per cent of the workers in the enterprise; (ii) the number of collective accords concluded is continuing to be constant (an average of 220 a year between 1990 and 2015), and they give rise to major obstacles for the development of trade unions (in 71 per cent of enterprises in which there are both a collective agreement and a collective accord, trade union membership has fallen drastically); (iii) very few complaints made by trade unions concerning the unlawful use of collective accords have given rise to penalties (seven); and (iv) in such cases, fines are imposed, but the collective accords continue to remain in force, or are transformed into “voluntary benefit plans”, which have identical effects to collective accords, but are not covered by the regulations.

The Committee recalls that in Article 4 the Convention recognizes as the parties to collective bargaining employers or their organizations, on the one hand, and workers’ organizations, on the other, in recognition that the latter offer guarantees of independence that may be absent in other types of groupings. The Committee has therefore always considered that direct bargaining between the enterprise and unorganized groups of workers, in avoidance of workers’ organizations, where they exist, is not in accordance with the promotion of collective bargaining, as envisaged in Article 4 of the Convention. Moreover, based on the situation in various countries, the Committee has observed that in practice the negotiation of terms and conditions of employment and work by groups that do not offer sufficient guarantees to be considered workers’ organizations can be used to undermine the exercise of freedom of association and weaken the existence of workers’ organizations with the capacity to defend the interests of workers independently through collective bargaining. In light of the above, the Committee once again requests the Government to take the necessary measures to ensure that collective agreements with non-unionized workers (collective accords) can only be concluded in the absence of trade union organizations.

Article 4. Scope of collective bargaining. Bargaining above the enterprise level. The Committee notes the joint indication by the CUT, CTC and CGT that: (i) although the legislation does not deny the possibility of bargaining at higher levels than the enterprise, the confusion in the wording of the provisions with respect to the bargaining process means that it is understood as applying solely at the enterprise level; (ii) the inadequacy of the legislation, compounded by the systematic refusal of employers to bargain above the enterprise level and the acquiescence of the Ministry of Labour, and the prohibition on federations and confederations from calling strikes, results in the complete absence in the private sector of collective bargaining at levels higher than the enterprise; and (iii) this shortcoming contributes to the very low level of coverage of collective bargaining in the private sector, as many workers are faced with significant difficulties to negotiate at the enterprise level. Recalling that, under the terms of the Convention, collective bargaining should be possible at all levels, the Committee requests the Government to provide its comments on the observations made by the trade union confederations.

Subjects covered by collective bargaining. Exclusion of pensions. The Committee notes the denunciation by the ITUC, the CGT, CUT and CTC of the persistent exclusion of the subject of pensions from the scope of collective bargaining, further to the amendment of Article 48 of the Constitution of Colombia by Legislative Act No. 01 of 2005. The Committee, in the same way as the Committee on Freedom of Association in Case No. 2434, recalls that it has had the occasion to comment on several occasions on the impact of this reform on the application of the present Convention, as well as on the Collective Bargaining Convention, 1981 (No. 154). In this regard, the Committee recalls that the establishment by law of a general compulsory pensions system is compatible with collective bargaining by means of a complementary system. Under these conditions, the Committee once again requests the Government, in consultation with the representative social partners, to take the necessary measures so that the parties to collective bargaining, in both the private and the public sectors, are not prohibited from improving pensions through complementary benefits, taking duly into account the financial resources available to enterprises and public institutions.

Application of the Convention in practice. Committee for the Handling of Conflicts referred to the ILO (CETCOIT). The Government indicates that the CETCOIT is an example of good practice in social dialogue and that it has achieved significant results, both in terms of combating acts of anti-union discrimination, and in promoting collective bargaining. The Committee notes in this respect the agreement expressed by the ANDI on the contribution of the CETCOIT to the consensual settlement of collective disputes. The Committee notes with interest that between 2013 and the present, the CETCOIT has examined 118 cases, with the conclusion of 71 agreements. The Committee also notes the observations of CUT, CTC and CGT indicating that: (i) although the CETCOIT is a good idea, it is having to deal with an increasing number of cases due to the inefficiency of the judiciary and the labour inspection services in the country; (ii) the CETCOIT lacks machinery to follow up the agreements that are concluded; and (iii) the Ministry of Labour should conduct investigations into the cases of anti-union discrimination denounced in the CETCOIT.

Coverage of collective bargaining. Public sector. In its 2015 comment on the Labour Relations (Public Service) Convention, 1978 (No. 151), the Committee noted with interest the adoption of Decree No. 160, of 5 February 2014, and the conclusion of numerous agreements in the public administration. The Committee once again notes with interest the updated information provided by the Government to the effect that 199 agreements were concluded in 2015, that 223 sets of claims were being negotiated in 2016 and that two collective bargaining processes at the national level have been carried out in recent years benefiting 1,200,000 public employees.

Coverage of collective bargaining. Private sector. In its previous observation, the Committee requested the Government to provide its comments on the indication by the CUT that fewer than 4 per cent of workers were covered by a collective agreement. While noting that the Government’s report does not contain data on the number of workers covered by collective agreements concluded in the private sector, the Committee notes with concern that, in their joint observations of 2016, the three trade union confederations indicate that in the private sector only 2.91 per cent of workers with social protection (or 1.16 per cent of the active population) benefit from a collective agreement. Noting, on the one hand, certain initiatives, such as the adoption of Decree No. 089 of 2014 promoting unified bargaining within the enterprise and, on the other, the existence of a series of both legal and practical obstacles to the exercise of the right to collective bargaining, as indicated in the present observation, the Committee requests the Government to take the necessary measures to promote the use of collective bargaining, in accordance with the Convention, and to provide information on developments in the rate of coverage of collective bargaining in the private sector.

While noting the dynamism of the Standing Committee for Dialogue on Wage and Labour Policies, the Committee invites the Government to submit the matters raised in the present observation for consultation with the social partners and recalls that it can have recourse, if it so wishes, to the technical assistance of the Office.

The Committee is raising other matters in a request addressed directly to the Government.