Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Colombia

Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) (Ratification: 1933)
Protection of Wages Convention, 1949 (No. 95) (Ratification: 1963)
Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99) (Ratification: 1969)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 26 and 99 (minimum wage) and 95 (protection of wages) together.

The Committee notes the observations of the National Employers Association of Colombia (ANDI) and the International Organisation of Employers (IOE) on the application of Conventions Nos 26 and 99, received on 31 August 2018, and the Government’s reply to these observations. It also notes the observations of the General Confederation of Labour (CGT), received on 31 August 2018, on the application of Convention No. 99, and the observations of the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers of Colombia (CUT) on the application of Conventions Nos 26 and 99, received on 1 September 2018, and the Government’s reply to these observations. The Committee further notes the observations of the CUT, the Colombian Federation of Education Workers (FECODE) and the Teachers’ Association of Cundinamarca (ADEC) on the application of Convention No. 95, received on 30 May 2018. It also notes the observations of the CGT, the CTC and the CUT on the same Convention, received on 31 August 2018, and the Government’s reply to these observations.

With regard to the application of Convention No. 95, the Committee notes the Governing Body decision of June 2018 to transmit to the Committee a communication sent under article 24 of the ILO Constitution by the CGT, the CTC, the CUT and the National Association of Ecopetrol Retirees (ANPE 2010) alleging non-observance of the Convention. Taking into account that the allegations by the complainant organizations were being examined by the Committee, the Governing Body decided to transmit this communication to the Committee for a full examination of these allegations at its 2018 session.

Minimum wage

Article 3 of Conventions Nos 26 and 99. Participation of the social partners. The Committee notes that, in reply to the observations of the CTC and the CUT on the minimum wage fixing process, the Government provides a copy of Decree No. 2269 of 30 December 2017 establishing the statutory minimum wage for 2018. The Committee notes that, according to the reasoning of the Decree: (i) the tripartite Permanent Committee for Consultation on Wage and Labour Policies held a plenary session over a period of several days in December 2017 with the aim of fixing, in a concerted manner, the increase in the minimum wage for 2018; and (ii) in its session on 7 December 2017, the workers’ confederations (including the CUT, the CGT and the CTC) and the employers’ associations indicated their views on the increase in the statutory monthly minimum wage in force.

Protection of wages

Article 1 of Convention No. 95. Protection of all elements of remuneration. In its previous comment, the Committee requested the Government to provide its comments on the observations of the CTC, the CGT and the CUT which reported a phenomenon of “de-salarization” in the country, particularly in the oil sector, with the conclusion of “salary exclusion agreements” on the basis of the provisions of section 128 of the Substantive Labour Code (CST). The Committee notes that, in their representation made in 2018, the complainant organizations indicate that a “salary exclusion agreement” is an individual agreement between the employer and the worker which establishes that, in addition to the payment of wages, the employer shall deposit a non-wage payment known as a “savings incentive” every two weeks into the worker’s voluntary pension fund. The Committee notes that the complainant organizations consider that the “savings incentive” constitutes wages, as: (i) it is paid in exchange for work; (ii) in many cases, it represents over 40 per cent of the wages; and (iii) it is paid periodically every 15 days. The Committee notes the Government’s indication that section 128 of the CST establishes that, by agreement between the worker and the employer, some payments made voluntarily by the employer to the worker do not constitute wages. The Committee recalls that, in accordance with Article 1 of the Convention, all the components of the remuneration of workers, however designated or calculated, are protected by the Convention, and the fact that a wage benefit, however designated, does not enter into the definition of wages set out in the national legislation, does not, ipso facto, constitute a violation of the Convention, provided that the remuneration or earnings due, payable under a contracted employment by an employer to a worker, whatever term is used, are covered by the provisions of Articles 3–15 of the Convention (2003 General Survey, Protection of wages, paragraph 47). Under these conditions, the Committee considers that regular payments made by employers to the voluntary pension funds of workers, known as “savings incentives”, shall qualify for the protection afforded by the Convention.

In this regard, in relation to the protection afforded by the Convention, the Committee notes the complainants’ allegations that the “savings incentive” system does not meet the requirements of Articles 5 (direct payment to the worker), 6 (freedom of workers to dispose of their wages) and 15 (inspection) of the Convention. The complainant organizations consider that they do not meet the requirements of Articles 5 and 6 for the following reasons: (i) in view of the dominant position of the employer in the employment relationship, the workers knew that if they did not agree to sign the salary exclusion agreement they would not obtain advancement and would be dismissed from their jobs; (ii) as the “savings incentive” is deposited in the pension fund, it is not paid directly to the workers; and (iii) the workers cannot dispose of these sums as they wish. In its reply, the Government indicates that the salary exclusion agreement is accepted freely by the workers and that their consent is recorded in the contract of employment signed by the parties. The Committee recalls that Article 5 provides that the worker concerned may agree to a different procedure to the direct payment of wages, and that Article 6 refers to the freedom of workers to dispose of their wages. Under these conditions, the Committee considers that the alleged acts do not imply a violation of these Articles. In relation to Article 15, the Committee notes that the complainant organizations allege that the labour inspection services did not inspect this practice of their own motion or penalize it. In this regard, the Committee notes that certain specific cases relating to these matters are being examined by national jurisdictions.

Finally, the Committee notes the complainants’ indications that the fact that “savings incentives” do not constitute wages has an impact on other social benefits, and particularly pensions, the rate of which is calculated on the basis of the amount of the workers’ wages. In this regard, the Committee observes that this issue is not covered by the Convention.

Article 4 of Convention No. 95 and Article 2 of Convention No. 99. Payment of wages in kind. The Committee notes that, in its observations, the CGT indicates that in the agricultural sector it is common for the payment of wages in kind not to observe the maximum amount established by the CST. The Committee observes that section 129 of the CST limits partial payment in kind to 50 per cent of total wages and 30 per cent when workers earn the minimum wage. In this regard, the Committee requests the Government to describe the manner in which compliance with the limits established in the national legislation is ensured in practice.

Article 12(1) of Convention No. 95. Regular payment of wages. The Committee notes that, in their observations, the CUT, the FECODE and the ADEC report delays in the payment of wages in the education sector in the department of Cundinamarca. The Committee requests the Government to provide its comments in this respect.

Article 4 of Conventions Nos 26 and 99, and Article 15 of Convention No. 95. Inspections and penalties. The Committee notes that, in their observations: (i) the CTC and the CUT indicate that few penalties are imposed compared with the number of cases of non-compliance with provisions on wages; and (ii) the CGT denounces the lack of effective rural inspections which leads to high rates of informality and the failure to pay the statutory minimum wage in force. The Committee notes that the Government: (i) provides information on the preventive action taken by labour inspectors, the number of investigations initiated, the orders issued and the penalties imposed with regard to wages; and (ii) describes the progress made in the implementation of the Information System on Labour Inspection, Monitoring and Control. The Committee hopes that the measures adopted in this regard give rise to progress in compliance with the provisions on wages, and requests the Government to provide information in this regard. The Committee also notes that these matters are examined in the context of the application of the Labour Inspection Convention, 1947 (No. 81), and the Labour Inspection (Agriculture) Convention, 1969 (No. 129).