Holidays with Pay Convention, 1936 (No. 52) - Colombia (Ratification: 1963)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on hours of work, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work in industry), 14 (weekly rest in industry), 30 (hours of work in commerce and offices), 52 (holidays with pay), 101 (holidays with pay in agriculture) and 106 (weekly rest in commerce and offices) in the same comment.

The Committee notes the observations of the Single Confederation of Workers (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Workers (CGT) on the application of Conventions Nos 1, 14, 30 and 52, sent together with the Government’s reports. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 31 August 2022, and the observations of the National Employers Association of Colombia (ANDI), sent together with the Government’s reports, on the application of Conventions Nos 1 and 14. The Committee invites the Government, in the context of the social dialogue established in the country, to analyse with the social partners the reported situation of non-observation of the Conventions in the specific sectors referred to by the trade union confederations in their observations, and if such non-observance is established, to take the necessary measures in this regard.

Legislative developments. The Committee notes the Government’s reference in its reports to the adoption of Act No. 2101 of 2021 amending section 161 of the Substantive Labour Code (CST) (Labour Code) in order to reduce weekly working time from 48 to 42 hours in the private sector. The Government also indicates that the aforementioned Act will be implemented gradually between 2023 and 2026, without any cut in wages for workers. The Committee also notes the Government’s indication that the purpose of this reduction is to give workers more space for family, social, recreational and cultural activities. The Committee further notes that the CUT, CTC and CGT indicate in their observations that, in the context of the State National Agreement of 2021, it has been agreed to establish a commission with representatives from the Administrative Department of the Public Service, the Ministry of Labour and the signatory trade union organizations with a view to drawing up a proposal to reduce working hours for public sector workers, without undermining their rights relating to wages. The Committee also notes that the IOE and the ANDI refer in their observations to the adoption of Act No. 2191 of 2022 governing the right of workers to disconnect from work outside the working day, during their rest periods and when on holiday. Lastly, the Committee duly notes the Government’s proposal to conduct a tripartite analysis of the regulations in force, in the context of the Standing Advisory Committee on Wage and Labour Policies, in order to seek alternatives that address the observations of the workers’ organizations. The Committee requests the Government to provide information on progress achieved in relation to revision of the limits on hours of work and hours of rest in the public sector. The Committee also requests the Government to provide information on the results of any tripartite examination of the regulations on working time. The Committee reminds the Government that it may avail itself, if it thinks it necessary, of technical assistance from the Office with regard to the points raised below.

Hours of work

Article 2 of Convention No. 1 and Article 3 of Convention No. 30. Limits on normal hours of work. The Committee notes that section 161(1) of the Labour Code, after its amendment by Act No. 2101, provides that maximum normal weekly working time is 42 hours, which, by joint agreement between the worker and the employer, can be spread over 5 or 6 days in the week, while still guaranteeing the weekly day of rest. The Committee observes that this provision does not establish a daily limit on hours of work. In this regard, the Committee notes that the CUT, CTC and CGT indicate that they consider it dangerous and disadvantageous that the maximum daily limit of eight hours of work, which existed before the adoption of Act No. 2101, has disappeared. Recalling that the Conventions establish a double cumulative limit on normal working hours of eight hours per day and 48 hours per week, the Committee requests the Government to take the necessary steps to ensure that a specific daily limit on normal hours of work is established in law and practice, in accordance with the requirements of the Conventions.

Article 2(b) of Convention No. 1 and Article 4 of Convention No. 30. Variable distribution of normal hours of work within the week. The Committee notes the indication of the CUT, CTC and CGT that, in the context of flexible daily hours of work authorized by section 161(c) of the Labour Code (distribution of 42 weekly hours over a maximum of six days per week, with a minimum of four continuous hours and a maximum of nine hours per day, subject to agreement between the employer and the worker), some workers, especially in the flower industry, currently work up to ten hours per day and others, such as workers in the plastics industry, work days of 12 hours or more. The Committee observes that while the limits of 42 hours per week and nine hours per day established by section 161(c) of the Labour Code are in conformity with the above-mentioned Articles of the Conventions, the limits on daily hours of work applied in practice in some industries, as referred to in the observations of the CUT, CTC and CGT, are not in conformity. In this regard, the Committee recalls that, in cases of variable distribution of working hours in the week, Convention No. 1 establishes a maximum limit of nine hours per day for industry workers, and Convention No. 30 sets a maximum limit of ten hours per day for workers in commerce and offices. The Committee also notes the Government’s indication that: (i) the labour inspectorate does not receive a significant volume of complaints relating to hours of work; (ii) there is a need to reinforce routine inspections to extend coverage and increase monitoring of working hours in certain sectors of the economy which, in the context of flexibilization of working hours, exceed the established limit on hours; and (iii) it is hoped that improvements will be made in the supervision of hours of work in the informal economy through the introduction of pedagogical initiatives and action by the labour inspectorate. While emphasizing the importance, when establishing flexible arrangements for hours of work, of ensuring the existence of reasonable limits on the maximum duration of daily and weekly hours of work so that these are not prejudicial to the health of workers or to the necessary work–life balance (2018 General Survey concerning working-time instruments, paragraph 178), the Committee requests the Government to continue taking the necessary steps to monitor compliance with the legal provisions on hours of work, particularly in the informal economy and in sectors of the economy where working hours apply that exceed the limits established in the Conventions. The Committee requests the Government to provide information on such measures and the results achieved.

Articles 6(1)(b) and (2) of Convention No. 1 and Article 7(2), (3) and (4) of Convention No. 30. Temporary exceptions. Circumstances for and limits on additional hours of work. Remuneration. With regard to its previous comments on limits on additional hours of work, the Committee notes the Government’s indication that the unnumbered section added to the Labour Code by section 22 of Act No. 50 of 1990 provides that additional hours, by day or by night, shall in no case exceed two hours per day and 12 hours per week; when working hours are extended, through agreements between employers and workers, to ten hours per day, additional hours shall not be worked on that day. In this regard, the Committee notes that Article 7(3) of Convention No. 30 requires not only a daily limit of additional hours of work undertaken by workers in commerce and offices, but also a yearly limit. In this connection, the Committee notes that the CUT, CTC and CGT indicate that the absence of monthly and annual limits on additional hours of work in the national legislation is one of the reasons for inappropriate use of such hours. The same organizations refer to individual cases of workers, mainly in the dock work sector, working exceptionally long hours (in some cases up to 18 hours a day), thus accumulating a high monthly and yearly number of additional hours. They further indicate that such hours are often unpaid. While recalling the impact that long hours of work can have on workers’ health and work-private life balance, the Committee emphasizes the fundamental importance of prescribing clear statutory limits for the additional hours of work to be undertaken daily, weekly and yearly and of keeping the number of additional hours allowed within reasonable limits that take into account both the health and well-being of workers and the employers’ productivity needs (2018 General Survey concerning working-time instruments, paragraph 151).

Regarding the circumstances in which recourse to additional hours of work is authorized, the Committee notes that section 162(1) of the Labour Code excludes certain categories of workers from the limits established in section 161 (those holding management posts, domestic workers, workers who perform discontinuous or intermittent work, and driver-mechanics). The Committee also notes that section 162(2) also establishes that the activities not included in the preceding subsection shall only exceed the limits set out in section 161 with the expressed authorization of the Ministry of Labour. In this connection, the Committee notes that the CUT, CTC and CGT indicate, in their observations, that the legislation does not clearly establish the conditions in which additional hours of work may be authorized. In this regard, the Committee recalls the importance of national legislation and practice restricting recourse to exemptions from these maximum limits to cases of clear, well-defined and limited circumstances such as accident, actual or threatened, force majeure or urgent work to be done to plant or machinery (2018 General Survey concerning working-time instruments, paragraph 119). In light of the above, the Committee requests the Government to take the necessary measures to ensure that: (i) recourse to additional hours of work is limited to clear, well-defined circumstances; (ii) reasonable limits to additional working hours are established and respected; and (iii) additional working hours are effectively remunerated in conformity with the Conventions. The Committee also requests the Government to provide information on the application in practice of section 162(2) of the Labour Code, giving details of the number of authorizations issued by the Ministry of Labour by virtue of this provision, the activities and sectors concerned, the approximate number of workers affected by its application, and the maximum number of authorized additional working hours.

Weekly rest

Article 4 of Convention No. 14 and Article 7(1) and (4) of Convention No. 106. Permanent exemptions from the principle of weekly rest. With regard to its previous comments, the Committee notes that the Government provides no information on the regulation of section 175(1) of the Labour Code, which authorizes special weekly rest schemes for work that cannot be interrupted due to its nature or for technical reasons, and for work to meet urgent needs, such as public services or the preparation and sale of food. In this connection, the Committee notes that the CUT, CTC and CGT indicate that the principle of weekly rest does not apply to private security workers, who generally work 12-hour rotating shifts (12 hours of work followed by 12 hours of rest, without enjoying weekly rest of 24 consecutive hours); they also indicate that such special weekly rest regimes need urgent regulation, as provided for under section 175(2) of the Labour Code. The Committee requests the Government, taking special account of all relevant social and economic considerations, and in consultation with the representative organizations of employers and workers, to adopt the necessary measures to regulate section 175(1) of the Labour Code to ensure that such exceptions remain within the limits established by these Articles of the Conventions. The Committee also requests the Government to indicate the categories of workers to which section 175(1) of the Labour Code applies in practice. The Committee further requests the Government to provide its comments on the observations of the CUT, CTC and CGT concerning the absence of weekly rest for workers in private security work.

Article 5 of Convention No. 14 and Article 7(2) of Convention No. 106. Compensatory rest. In relation to its previous comments on sections 180 and 184 of the Labour Code, the Committee notes the Government’s indications that, in order to establish whether workers have the right to compensatory rest and/or monetary remuneration, it is necessary to determine whether the work on the usual weekly rest day is regular or occasional. The Government also indicates that, under section 180 of the Labour Code, a worker who undertakes work on the weekly rest day on an occasional basis (up to two Sundays per calendar month, according to section 179(2)) may choose either a compensatory cash payment or compensatory rest. In this respect, the Committee reiterates the importance of granting compensatory rest in all cases to workers deprived of their weekly rest, irrespective of any monetary compensation. The Committee once again requests the Government to take the necessary measures to ensure that compensatory rest is granted to all workers who work on their weekly rest day, including those who undertake work on an exceptional basis or work that cannot be suspended, irrespective of any monetary compensation, in accordance with these Articles of the Convention.

Paid annual leave

Articles 2(1) and 4 of Convention No. 52 and Articles 1 and 8 of Convention No. 101. Right to paid annual leave. Relinquishment. The Committee notes that, in response to its previous comments, the Government indicates that, under section 189 of the Labour Code, the employer and the worker may agree in writing, upon the worker’s request, that up to half of the 15 working days of paid annual leave be paid in cash, which implies that the worker must enjoy at least seven and a half days of leave for each year of service and that the remaining days of leave (seven and a half days or less) may be paid in cash. The Committee recalls that Article 4 of Convention No. 52 and Article 8 of Convention No. 101 provide that any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday, shall be void, it being understood that this principle applies to the duration of annual holiday with pay as established by each ratifying Member State, whatever its length. The Committee requests the Government to take the necessary measures to bring section 189 of the Labour Code into line with these Articles of the Conventions.

The Committee also notes that the CUT, CTC and CGT indicate that: (i) the successive hiring of workers for a determined period by cooperatives, temporary work agencies and outsourcing agencies makes it impossible to effectively enjoy annual leave, since at the end of each one-year contract, annual leave is paid in cash to the workers, who are immediately hired again on a temporary basis; and (ii) Ministry of Labour Circular No. 21 of 2020 established the possibility of granting annual leave in advance during the health emergency caused by the pandemic; however, since no limits have been set in this respect, workers who took advance annual leave that was allocated for subsequent years will not be able to take this entitlement again for several years. The Committee requests the Government to provide its comments in this respect and to take the necessary measures to guarantee in practice that all workers enjoy a period of annual leave which is paid after one year of continuous service, in accordance with the Conventions.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 4 of the Convention. Relinquishment of annual leave. The Committee notes that section 20 of Act No. 1429 of 29 December 2010 modifies section 189, paragraph 1, of the Labour Code which prohibited the payment of compensation in cash for leave without the authorization (for up to half of the leave) of the Ministry of Labour, in special circumstances where the national economy or industry might otherwise suffer. As amended, section 189 now stipulates that an employer and a worker may, at the latter’s request, agree in writing for up to half of the leave to be paid in cash by way of compensation. The Committee recalls that such a provision is contrary to the principle of the Convention which prohibits any agreement to relinquish the right to paid annual leave or to forego such leave in exchange for compensation, save in the event of cessation of the work relationship. The Committee also recalls that the same principle is embodied in Article 12 of the Holidays with Pay Convention (Revised), 1970 (No. 132). The Committee therefore invites the Government to consider amending section 189 of the Labour Code as it now stands so as to guarantee that workers benefit from all the leave period to which they are entitled.

Furthermore, the Committee notes the comments from the Single Confederation of Workers (CUT) and the Confederation of Workers of Colombia (CTC), received on 30 August 2013 and forwarded to the Government on 16 September 2013. The CUT and CTC object to the fact that the maintenance of associated work cooperatives and pre-cooperatives as an alternative to the common system of work prevents a number of workers from being able to take holidays. Despite the Government’s efforts at regularization, there is no proper verification to ensure that cooperatives and pre-cooperatives do not play an intermediary role in employment relationships tending towards violations of the labour legislation. The CUT and CTC also complain that contracts for services and task contracts in both the public and private sectors, conceal the existence of employment relationships in which the right to holidays with pay is not recognized. The Committee requests the Government to transmit any comments it may wish to make in reply to the observations of the CUT and the CTC.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 6 of the Convention. Compensation for holidays in the event of termination of the employment contract. The Committee notes the information provided by the Government in reply to the comments of the General Confederation of Labour (CGT). The CGT had indicated that, although workers holding an employment contract receive compensation, this is not the case for workers belonging to associated labour cooperatives, those subject to orders for the provision of services or millions of workers in the informal sector. In its reply dated 15 January 2009, the Government indicates that annual holiday with pay is acquired by employees who are parties to an employment relationship and hold an employment contract and that, consequently, service providers, contractors, rural workers and those not holding a contract may not benefit from these provisions.

With regard to workers belonging to associated labour cooperatives and pre-cooperatives (cooperativas y precooperativas de trabajo asociado), the Committee notes Act No. 79 of 23 December 1988 and Decree No. 4588 of 27 December 2006 which regulate labour relations in associated labour cooperatives, as well as Act No. 1233 of 22 June 2008 which stipulates the structural elements and the contributions payable by associated labour cooperatives. It notes the Government’s indication that in view of the fact that members are both workers and managers, there are no conflicting labour relations which require state intervention in their premises. For that reason, associated labour cooperatives are not subject to ordinary labour legislation. The employment relationship is governed by regimes accepted by the members which establish the rules facilitating the organization of joint work and which have to be respected by all members. The Committee notes, however, that the provisions of Act No. 1233 of 22 June 2008 subject associated labour cooperatives to the legislative provisions in force with regard to, inter alia: the protection of young workers and maternity protection; the entry and registration of the cooperative with the Ministry for Social Protection and the Supervisory Authority for Economic Solidarity; the payment of social contributions relating to training and family allowances; and the membership of associated workers of the social security system as dependent workers, in other words, subordinate to an employer and having an employment contract. Furthermore, section 8 of the same Act provides that the associated labour cooperatives regime shall be regulated in accordance with ILO principles and guidelines relating to decent work. The Committee accordingly requests the Government to provide further information in this regard, indicate the number of persons employed in associated labour cooperatives and specify how the right of these workers to annual holiday with pay is governed, in both law and practice.

The Committee takes this opportunity to recall once again that, on the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that Conventions Nos 52 and 101 are outdated and invited the States parties to these Conventions to consider the possibility of ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which, although not deemed fully up to date remains relevant in certain respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). Acceptance of the obligations of Convention No. 132 for persons employed in all economic sectors, including agriculture, would automatically entail the immediate denunciation of Conventions Nos 52 and 101. The Committee requests the Government to keep the Office informed of any decision it may take with regard to the possible ratification of Convention No. 132 and the resulting legislative changes which would be necessary in order to bring the national legislation into conformity with the provisions of that Convention.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 6 of the Convention. Compensation for holidays upon the termination of an employment contract. The Committee notes the adoption of Act No. 789 of 27 December 2002 partially amending section 189 of the Labour Code, which states that where the employment contract is terminated before the worker has used his acquired right to holidays, compensation in cash will be paid on a pro rata basis according to the portion of the year worked and no longer solely for any portion of the year exceeding three months. It also notes the observations from the General Confederation of Labour (CGT), dated 19 August 2008, and transmitted to the Government on 19 September 2008, according to which, even though workers holding an employment contract receive compensation, this is not the case for workers belonging to “associated labour cooperatives” (cooperativas de trabajo asociado), those subject to orders for the provision of services or millions of workers in the informal sector. The Committee requests the Government to communicate any comments which it considers relevant in this respect.

The Committee takes this opportunity to recall that, on the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that Conventions Nos 52 and 101 were outdated and invited the States parties to these Conventions to consider the possibility of ratifying Convention No. 132, which is not regarded as being fully up to date but remains relevant in certain respects (see GB.283/LILS/WP/PRS/1/2, paragraph 12). Acceptance of the obligations of Convention No. 132 in respect of employed persons in all economic sectors, including agriculture, would ipso jure involve the immediate denunciation of Conventions Nos 52 and 101 (Article 16(a) and (b)). The Committee requests the Government to keep the Office informed of any decision taken regarding the possible ratification of Convention No. 132 and the ensuing legislative changes which would be necessary in order to bring national law into conformity with the provisions of this Convention.