Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded to update the examination of the application of the Convention carried out in 2019 on the basis of the supplementary information received from the Government and the social partners this year (see Articles 1, 2 and 4 below).

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2019 and 16 September 2020, the joint observations of the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), received on 1 September 2019 and 1 October 2020, the observations of the General Confederation of Labour (CGT), received on 5 September 2019, and the joint observations of the ITUC, the Trade Union Confederation of the Americas, CUT and CTC, received on 1 September 2017. The Committee notes that these various observations relate to matters examined by the Committee in the present observation, as well as allegations of violations of the Convention in practice, and in particular allegations of anti-union dismissals in the private sector. The Committee notes the replies of the Government in this regard.

The Committee also takes note of the joint observations of the Colombian Association of Civil Aviators (ACDAC), the ITUC and the CTC, received on 22 March 2019 and the Government’s reply thereto. The Committee also takes note of the observations of the International Transport Federation (ITF) and its affiliated organizations: ACDAC, the Colombian Association of Flight Attendants (ACAV) and the Union of Air Transport Workers of Colombia (SINTRATAC) received on 4 September 2019, which concern, on the one hand, facts related to Case No. 3316 before the Committee on Freedom of Association and, on the other hand, issues addressed in this comment.

The Committee finally notes the joint observations of the International Organisation of Employers (IOE) and the National Employers’ Association of Colombia (ANDI), received on 30 August 2019 and the observations of the ANDI forwarded by the IOE on 1 October 2020, relating to matters examined within the context of the present observation.

Article 1 of the Convention. Adequate protection against anti-union discrimination. In its previous comments, the Committee noted the allegations by the CUT, CTC and CGT concerning the absence of mechanisms to provide effective protection against anti-union discrimination, and particularly: (i) the slowness and ineffectiveness of the examination by the Ministry of Labour of administrative labour disputes; (ii) the absence, with the exception of the procedure for the lifting of trade union protection, applicable solely to trade union leaders, of any expeditious judicial means of protection against acts of anti union discrimination and interference; and (iii) the lack of protection from the Office of the Public Prosecutor in relation to the application of section 200 of the Penal Code, which criminalizes a series of anti-union acts. In view of the above, the Committee invited 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 the adoption of the necessary measures to ensure adequate protection in this regard.

In this regard, the Committee notes that, in their observations of 2019, the national trade union confederations reiterate their previous allegations and that the CUT and CTC specifically allege that: (i) the time taken by the labour administration to examine administrative labour disputes is excessively long, and in certain cases over 1,400 days have passed before the administration takes action; (ii) such long delays can be especially harmful for the protection of trade union rights since, under the terms of section 52 of the Code of Administrative Procedure and Administrative Disputes, the powers of the authorities to impose penalties expires after three years; and (iii) the recently adopted National Development Plan contains provisions that are likely to weaken even further the effectiveness of action by the labour inspection services. The Committee also notes that the CUT and CTC state in their 2020 observations that, of the requests submitted to the labour administration in 2020 by trade unions or by workers, less than 5 per cent are being investigated and only 1 per cent have progressed towards penalties for the employer’s conduct.

The Committee notes the information provided by the Government on the institutional initiatives adopted to combat anti-union violence and on the application of section 200 of the Penal Code, which are examined within the context of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee also notes that the Government adds in its comments to the 2019 observations of the workers’ organizations that: (i) in order to improve the procedures and time frames for administrative investigations by labour inspectors, technical inspection tools were designed to promote the standardization of investigation and sanctioning procedures; and (ii) the recently adopted provisions modifying the administrative sanctioning procedure in labour matters and that are criticized by the trade union confederations are intended to decongest administrative labour actions by suspending the administrative procedure when those investigated undertake to implement the required corrective measures within a reasonable time. The Committee also notes that the Government, in its supplementary information of 2020, provides data on the functioning of the labour inspectorate in general regarding information systems used by the labour inspectorate to record and organize its investigations and ensure the enforcement of fines, and also information on virtual training initiatives for inspectors. The Committee finally notes that, in its comments on the 2020 observations of the CUT and the CTC, the Government denies that there is any inefficiency in the performance of the labour inspectorate in the area of anti-union discrimination, since significant progress has been made in the protection of these rights through the corresponding administrative investigations. The Government states in this respect that, between 1 January and 15 October 2020, 47 administrative labour complaints have been filed regarding anti-union acts, all of which are currently in the preliminary investigation phase.

While duly noting this information, the Committee observes that the Government provides limited information concerning the concrete results achieved by the labour administration in response to complaints of anti-union discrimination, that it does not provide comments on the role of the labour courts in this respect, and that it does not refer to the conduct of a comprehensive examination of the existing means of protection against anti union discrimination. Recalling the fundamental importance of protection against anti-union discrimination for the effective exercise of freedom of association, the Committee urges the Government, in consultation with the social partners, to launch in the near future a comprehensive examination of the means of protection against anti-union discrimination with a view to the adoption of the necessary measures to ensure rapid imposition of effective sanctions in the event of the commission of anti-union acts. The Committee trusts that the Government will report any developments in this regard in its next report.

Articles 2 and 4. Collective accords with non-unionized workers. The Committee recalls that it has been requesting the Government to take measures since 2003 to ensure that collective agreements with non-unionized workers (collective accords) can only be concluded in the absence of trade union organizations. The Committee notes that the Government indicates once again in its various reports that, in accordance with the legislation and the case law of the Constitutional Court: (i) both collective accords (concluded with non-unionized workers) and collective agreements (concluded with trade unions) are instruments of collective bargaining, on the understanding that the recognition of the right to collective bargaining should not exclude non-unionized workers; (ii) employers are free to conclude collective accords with non unionized workers, except where there is a union representing at least one third of the personnel (section 481 of the Substantive Labour Code); and (iii) the terms and conditions negotiated in collective accords and agreements have to be equal to prevent any anti-union discrimination and any breach of the principle of equality. The Committee notes that the Government adds in the information provided in 2019 that: (i) there were 639 collective accords in force in the country in 2019; (ii) the number of collective accords concluded per year has been reduced by 53 per cent between 2015 (372 accords created) and 2018 (198); (iii) 115 collective accords were deposited from January to September 2019; (iv) Resolution 3783 of 29 September 2017 of the Ministry of Labour granted functions to the Special Investigation Unit of the Ministry of Labour to investigate the misuse of collective accords; and (v) the Special Investigation Unit had undertaken 27 investigations into the improper use of collective accords, with 22 cases at the stage of preliminary investigation, while charges have been brought in three cases, in one of which the charges were upheld and in another a conviction was handed down. The Committee also notes that the ANDI agrees with the Government’s indication and considers that workers must be free to choose the form of association that they wish to have for the purposes of negotiating collectively. The ANDI also emphasizes that collective accords cannot be used to elude trade union membership. The Committee also notes in this regard the updated information supplied by the Government in its supplementary report of 2020 and in the replies to the observations of the trade union confederations. In particular, the Government indicates that: (i) the Special Investigation Unit of the Ministry of Labour is currently conducting seven investigations into the improper use of collective accords (one at the stage of upholding of charges, three at the stage of preliminary investigation, and three at the stage of notification of the first decision); and (ii) a total of 141 investigations on this subject are under way at the regional departments of the Ministry of Labour.

The Committee also notes the indication by the CGT that: (i) although collective accords are governed by the same provisions of the Substantive Labour Code as collective agreements in terms of the collective bargaining process, in most cases there is no such bargaining, as the accord is drawn up directly by the enterprise or its trusted personnel; (ii) collective accords are usually promoted to prevent the independent organization of workers in a union and their conclusion usually has the effect of drastically reducing the number of unionized workers; and (iii) despite the case law of the Constitutional Court in this regard, the labour administration and the Office of the Public Prosecutor fail to investigate complaints of anti-union practices in which collective accords are known as “voluntary benefit plans”, an assertion denied by the Government in its comments to the observations of the trade union confederations. Finally, the Committee notes that the CUT and CTC: (i) stated in their 2019 observations that 68 administrative complaints were lodged for the improper use of collective accords between 2014 and 2017, of which 35 have been shelved, 24 are still under investigation, and sanctions have been imposed in only nine cases; (ii) stated in their 2020 observations that a major increase had been recorded in 2019 in the number of collective accords concluded (222) by comparison with 2018 (198) and 2017 (141) and that the number of administrative sanctioning procedures for misuse of collective accords being handled by the Special Investigation Unit of the Ministry of Labour is derisory if compared with the number of collective accords filed in recent years; and (iii) referred to the Supreme Court ruling SL 3597-2020 of 16 September 2020 in which the Supreme Court condemned an airline company for anti-union acts committed against the company union and asserted that this court decision highlights how collective accords or voluntary benefit plans entered into with non-unionized workers would be used to violate freedom of association.

Noting that there has been no progress in giving effect to its comments, the Committee is bound to recall once again 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 forms of association. 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 as 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 the conclusion of collective accords with non-unionized workers (pactos colectivos) can only be possible in the absence of trade union organizations. The Committee requests the Government to report any developments in this regard.

Article 4. Personal scope of collective bargaining. Apprentices. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that the remuneration of apprentices is not excluded by law from the scope of collective bargaining. The Committee notes the Government’s indication that: (i) Act No. 789 of 2002, which establishes the figure of the apprenticeship contract, clearly states that apprentices are students and not workers; (ii) therefore, an apprenticeship contract is not a contract of employment, but is a special contract under labour legislation subject to its own rules, and not the provisions of the substantive Labour Code; and (iii) in ruling C 038 of 2004, the Constitutional Court found that apprentices are not workers in the strict sense and the exclusion of their remuneration from the scope of collective bargaining is a proportional restriction to the requirement imposed by law for enterprises to recruit a certain number of apprentices. Observing that, according to the ruling referred to above, apprentices are able to negotiate their remuneration on an individual basis, and recalling once again that the Convention does not exclude apprentices from its scope of application and that the parties to collective bargaining should therefore be able to decide to include the subject of their remuneration in their collective agreements, the Committee once again requests the Government to take the necessary measures to ensure that the remuneration of apprentices is not excluded by law from the scope of collective bargaining.

Subjects covered by collective bargaining. Exclusion of pensions. The Committee recalls that, in the same way as the Committee on Freedom of Association in Case No. 2434, it has had the occasion to comment on several occasions on the impact of the reform of Article 48 of the Constitution of Colombia by Legislative Act No. 01 of 2005 on the application of the present Convention, as well as on the Collective Bargaining Convention, 1981 (No. 154). In its previous comment, recalling that the establishment by law of a general compulsory pensions scheme is compatible with collective bargaining by means of a complementary system, the Committee requested the Government 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 supplementary benefits.

The Committee notes the Government’s indication in this regard that Legislative Act No. 1 of 2005 prohibits, from the entry into force of the Legislative Act, the establishment in accords, collective labour agreements, awards or any legal acts of pension conditions that differ from those set out in the laws governing the General Pensions System, although this prohibition does not prevent the parties to collective bargaining from being able, in both the private and the public sectors, to improve pensions through supplementary benefits based on voluntary savings, which do not give rise to different pension conditions from those set out by the General System, but increase the capital necessary to obtain a better pension through individual efforts. The Committee takes due note of these indications and requests the Government to provide specific examples of collective agreements which provide for supplementary pension benefits.

Promotion of collective bargaining in the public sector. The Committee notes with satisfaction the Government’s indication of the conclusion with all the confederations in the country of a new National State Agreement covering 1,200,000 workers in the public sector, which provides for a wage rise of 1.32 per cent above the inflation rate for 2019 and 2020, as well as a series of other improvements at the national and sectoral levels. The Committee notes that the three national trade union confederations (although the CUT and CTC indicate certain difficulties in relation to local bodies) welcome the significant progress in collective bargaining in the public sector, which is due to the existence of multi level bargaining with an erga omnes effect at the national level. According to the trade union confederations, this mechanism should be extended to collective bargaining in the private sector.

Promotion of collective bargaining in the private sector. The Committee recalls that, in its previous comments, it noted with concern the very low level of coverage of collective bargaining in the private sector, as indicated by the national trade union confederations. The Committee also noted the indication by the trade union confederations that a series of both legal and practical obstacles and inadequacies resulted in the complete absence of collective bargaining above the enterprise level, which in turn contributed to the very low coverage of collective bargaining in the private sector. The Committee requested the Government to take the necessary measures to promote the use of collective bargaining, in accordance with the Convention.

The Committee notes the Government’s indication that: (i) according to data from trade union registers, detailed by sector of activity and regions, there are 781 collective agreements in force in the private sector; (ii) the number of collective agreements deposited between January and September 2019 was 268; between 1 January and 15 October 2020, a total of 158 collective agreements were deposited; (iii) the Ministry of Labour does not yet have a system enabling it to determine the coverage rate of collective bargaining but, with the support of Canada and the Office, it is developing a system for the registration of collective accords, trade union contracts and collective agreements which will provide such information by the end of 2019; (iv) the provisions of the Substantive Labour Code relating to the extension of collective agreements show that it is possible to bargain at the sectoral level; (v) although there is no text specifically regulating bargaining at the branch level, there is a successful case of collective bargaining in the country in the banana sector in the Urabá region covering 15,000 of the 17,600 workers concerned; and (vi) with technical assistance from the Platform of Social Organizations for Decent Work and the ILO, the CUT and the CTC began a major project to disseminate multilevel collective bargaining in the country at the end of the second half of 2018. The Committee also notes the Government’s indication that, with a view to ensuring that unions have a strong capacity for negotiation and guaranteeing that these procedures are flexible and effective, it is proposed to amend Decree No. 089 of 2014, which promotes unified bargaining within the enterprise, to make it compulsory to submit unified claims and establish a single negotiating committee composed of members of all the trade unions. The Committee notes the Government’s indication that, after referring the proposed amendment to the Office for comments, tripartite consultations are being held on its content.

The Committee also notes the indication by the CUT and CTC in their 2019 observations that: (i) according to the estimates of the National Trade Union School, only 1.75 per cent of the economically active population and 3.67 per cent of employees are covered by collective agreements; (ii) the absence of regulations governing collective bargaining at the branch level in the private sector renders it impossible in practice, which makes a decisive contribution to the very low coverage level; and (iii) the Organisation for Economic Co-operation and Development (OECD) Employment, Labour and Social Affairs Committee has requested the Government to promote a system of bargaining on two levels and to include provisions for sectoral bargaining in the Labour Code.

Noting with regret that, according to the data provided by the trade union confederations, the level of coverage of collective bargaining in the private sector continues to be very low, the Committee notes a significant contrast in this regard with the situation in the public sector. The Committee recalls that: (i) under the terms of Article 4 of the Convention, it is the responsibility of the Government to take measures appropriate to national conditions, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations, on the one hand, and workers’ organizations, on the other, with a view to the regulation of terms and conditions of employment by means of collective agreements; and (ii) in accordance with Article 5(2)(d) of Convention No. 154, which has been ratified by Colombia, the Government is required to ensure that collective bargaining is not hampered by the absence of rules governing the procedure to be used or by the inadequacy or inappropriateness of such rules.

While welcoming the Government’s initiative to provide a framework for more flexible collective bargaining procedures at the enterprise level in a context of trade union pluralism, the Committee considers it necessary for the Government to address in the near future, in consultation with the social partners, all of the aspects which could hamper the effective promotion of collective bargaining in the private sector, as indicated in the Committee’s comments concerning the Convention. Encouraged by the results achieved in the public sector, the Committee requests the Government, in consultation with the social partners, to take all measures in the near future, including legislative measures where appropriate, to promote the use of collective bargaining in the private sector at all appropriate levels. The Committee requests the Government to provide information on the progress achieved in this regard and recalls that it may have recourse to the technical assistance of the Office.

Settlement of disputes. Committee for the Handling of Conflicts referred to the ILO (CETCOIT). The Committee notes the information provided in 2019 and 2020 by the Government and the ANDI and in 2020 by the CUT and CTC on the activities of the CETCOIT, a tripartite body for the resolution of disputes relating to freedom of association and collective bargaining. The Committee notes with interest the Government’s indication that: (i) between 2012 and 2017, the CETCOIT examined 191 cases, reaching 123 agreements; (ii) following the unanimous appointment of a new facilitator in April 2018, the CETCOIT is continuing its work effectively, and examined 24 cases in 2018, reaching 14 agreements; (iii) from 2012 to 2019, the CETCOIT has achieved the conclusion of agreements in 63 per cent of the cases examined; and (iv) in the context of the COVID-19 pandemic, the CETCOIT has continued to meet, achieving in particular in the 18 meetings held in 2020 the conclusion of 11 agreements and seven follow-up protocols. Lastly, the Committee notes that: (i) the ANDI, CUT and CTC indicate that the CETCOIT is an example of good practice in social dialogue which reflects the will of all the tripartite partners to make progress in seeking solutions to disputes; and (ii) at the same time, the CUT and CTC add that workers may be demotivated because of not feeling the necessary support for the agreements achieved and because of the lack of any penalties associated with this kind of extrajudicial mechanism in the event of non-compliance. The Committee requests the Government to continue providing information in this regard.

Observing that, in its report on Convention No. 87, the Government indicated that the international affairs subcommittee of the Standing Committee for Dialogue on Wage and Labour Policies will follow-up on the examination of the comments made by the Committee of Experts on the application of the Conventions ratified by Colombia, the Committee hopes that the work of the subcommittee will facilitate the adoption of the various measures requested by the Committee to give full effect to the Convention. The Committee recalls that the Government may request technical assistance of the Office in this regard.

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

[The Government is asked to reply in full to the present comment in 2021.]